THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU W.P.No.13143 of 2010 Date of Order: 02-09-2010 Between: Smt. Rudraram Anitha …Petitioner and 1. The Govt. of A.P. rep. by its Secretary to Government General Admn (Law & Order.II) Dept., Secretariat, Hyderabad and others. ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU W.P.No.13143 of 2010 Oral Order: (Per Hon’ble Sri Justice A.Gopal Reddy) The detention order passed by the Collector and District Magistrate, Rangareddy District under Section 3(1)(2) of A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug- Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short “Act 1/1986”) as confirmed by the Government in G.O.Rt.No.1931, General Administration (Law & Order.II) Department, dated 22-04-2010 under sub-Section (1) of Section 12 read with Section 13 of the Act 1/1986 by which the petitioner’s husband— Rudram Srinivas Goud @ Edigi Srinivas Goud s/o Ramaiah, r/o Navalga village of Basheerabad Mandal, Rangareddy District was detained on the ground that he is a ‘bootlegger’ within the meaning of Section 2(b) of the Act 1/1986, is challenged in this writ petition. The 2nd respondent in support of the order of detention dated 29-03-2010 mentioned five grounds where crimes were registered against the detenu, namely: 1. C.O.R.No.526/08-09, dated 12-11-2008 of Station House Officer, Tandur under Sections 34(A) and 37(A) of A.P. Excise Act, 1968. 2. C.O.R.No.894/08-09, dated 15-03-2009 of Station House Officer, Tandur under Sections 34(A) and 37(A) of A.P. Excise Act, 1968. 3. C.O.R.No.906/08-09, dated 17-03-2009 of Station House Officer, Tandur under Sections 34(A) and 37(A) of A.P. Excise Act, 1968. 4. C.O.R.No.943/08-09, dated 31-03-2009 of Station House Officer, Tandur under Sections 34(A) and 37(A) of A.P. Excise Act, 1968. 5. C.O.R.No.902/09-10, dated 05-03-2009 of Station House Officer, Tandur under Sections 34(A) and 37(A) of A.P. Excise Act, 1968. The Prohibition and Excise Sub-Inspector, SHO, Tandur raided on the illegal toddy depot at the outskirts of Navalga village said to have been run by the detenu. Consequent to the raid, the Excise Officials seized certain quantities of toddy, which is adulterated with Chloral Hydrate. In C.O.R.No.906/08-09, dated 17-03-2009 the Enforcement Party along with Prohibition and Excise Sub-Inspector, SHO, Tandur raided the house of the detenu and found 128 plastic crates each containing 12 bottles of 650 ml. filled with toddy and also one jeep parked in front of the house loaded with 68 plastic crates each containing 12 bottles of 650 ml. adulterated toddy; the detenu and his driver ran away from the spot. In C.O.R.No.902/09-10, dated 05-03-2010, the Prohibition and Excise Inspector raided the illegal toddy shop being run by the detenu at H.No.7-36 at Bojya Naik Thanda h/o Navalga village, Basheerabad Mandal and found 50 plastic crates each containing 12 bottles of 650 ml. filled with toddy and two plastic barrels each containing 100 lts. of toddy. On registering the cases, samples seized were sent to Regional Prohibition and Excise Laboratory, Hyderabad. In the report it was found that the sample is fermented toddy adulterated with Chloral Hydrate, except in C.O.R.No.902/09-10, dated 05-03-2009 wherein the report shows that the sample is fermented toddy adulterated with Chloral Hydrate and Diazepam and the adultrants are injuries to health. In all the four crimes, the accused/detenu was arrested and charge sheeted and later he was enlarged on bail. In the last crime i.e. C.O.R.No.902/09-10 the accused was arrested and remanded to judicial custody and later he obtained bail on 03-03-2010 and the case is under investigation. On placing the matter before the Detaining Authority—2nd respondent, it felt necessary that the provisions of the Act 1/1986 should be invoked to detain the detenu with a view to prevent him from further acting in any manner prejudicial to the maintenance of the public order and ordered for his lodging in Central Prison, Cherlapally, Hyderabad. Pursuant to the order of detention the detenu was taken into custody on 24-04-2010 and lodged in Central Prison, Cherlapally by duly enclosing the grounds of detention informing that he will have a right to make representation to the Detaining Authority—2nd respondent and the matter will be placed before the Advisory Board for review, where he will have a right to make representation, which was approved by the Government under Section sub-Section (3) of Section 3 of the Act 1/1986 in G.O.Rt.No.1705 dated 07-04-2010 and confirmed in G.O.Rt.No.1931, General Administration (Law & Order.II) Department, dated 222-04-2010 under sub-section (1) of Section 12 read with Section 13 of the Act 1/1986. Challenging the same the present writ petition is filed contending that the 2nd respondent/Detaining Authority has not opined that public order has been affected adversely or likely to be affected adversely or any of the activities of the detenu directly or indirectly causing or calculated to case any harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave of wide spread danger to life or public health. In COR No.526/08-09, COR No.894/08-09, COR No.906/08-09 and COR No.943/08-09 charge sheets were filed for the offences punishable under Sections 34(A) and 37(A) of .P. Excise Act, 1968. In all the cases, there is no allegation of adulteration of toddy against the detenu. Therefore, considering the said CORs. for detaining the detenu is total non- application of mind; there is long lapse of time between the first three cases and the last case i.e. more than one year period. The analyst report only shows that the toddy is adulterated with Chloral Hydrate, but there is nothing to show that the sample is injuries to health of the public except in one case i.e. COR.No.902/09-10 where the sample is adulterated with Chloral Hydrate and Diazepam. Mere detection of Diazepam in one case cannot be termed as prejudicial to maintenance of public order. The representation made by the petitioner on 07-04-2010 to the respondents 1 and 2 by explaining the reasons has not been taken into consideration while passing the detention order. Therefore, the same is liable to be set aside. A detailed counter affidavit has been filed by the 2nd respondent detailing the various crimes, referred to above, and filing of charge sheets in some cases and investigation is pending in other cases. While sustaining the detention order, it is stated that the detenu is constantly indulging in bootlegging activities of manufacturing, storing and selling of illegal and adulterated toddy causing wide spread danger to the public health in and around Navalga village; thus he is termed as ‘bootlegger’ and the activities are prejudicial to the public order and in order to curb his illegal activities it necessitated the second respondent to pass the order of detention against the detenu with a view of prevent him to indulge in such offences. By consuming the toddy adulterated with Chloral Hydrate and Diazepam, the lives of down trodden people are in danger and thus, for the maintenance of public order, the provisions of Act 1/1986 are invoked against the detenu in order to prevent him to further indulge in such activities and the requirements, namely, furnishing of grounds and material on which reliance is placed were supplied to the detenu at the time of service of detention order informing his right to make representation by complying Constitutional and Statutory mandate before confirming the detention order. Learned counsel for the petitioner contends that the order of detention is vitiated because the Detaining Authority failed to prove widespread danger to public health if the toddy manufactured by the detenu is consumed. The analyst report in all the five cases only shows the sample is fermented toddy adulterated with Chloral Hydrate and do not indicate the consumption of which is injuries to health except in one case i.e. COR.No.902/09-10 where the laboratory analyst report shows that the sample is adulterated with Chloral Hydrate and Diazepam and injuries to health. Therefore, single incident cannot be taken into consideration for detaining the detenu and the same is liable to be quashed. On the other hand, Special Government Pleader representing the Advocate General would contend that mixing up Chloral Hydrate itself constitutes an offence under Section 34(A) and 37(A) of the A.P.Excise Act, 1968. As the detenu is constantly indulging in such activities, which falls under bootlegging activities. The detention order can be passed while pending criminal prosecution and even after acquittal. Before we advert to the rival contentions, it is apt to note the word ‘bootlegger’ as defined under Section 2(b) of the Act 1/1986, which reads thus: "2. (b) 'bootlegger' means a person, who distils, manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxicating drug or other intoxicant in contravention of any of the provisions of the Andhra pradesh Excise Act, 1968, and the rules, notifications and orders made thereunder or in contravention of any other law for the time being in force, or who knowingly expends or applies any money or supplies any animal, vehicle, vessel or other conveyance or any receptacle or any other material whatsoever in furtherance or support of the doing of any of the abovementioned things by himself or through any other person, or who abets in any other manner the doing of any such thing.” Section 2 (a) of the Act 1/1986 defines the meaning of the expression "acting in any manner prejudicial to the maintenance of public order" in the following terms. (a) "acting in any manner prejudicial to the maintenance of public order" means when a bootlegger, dacoit, a goonda, an immoral traffic offender or a land grabber is engaged or is making preparations for engaging, in any of his activities as such, which affect adversely, or are likely to affect adversely, the maintenance of public order". Explanation to Section 2 (a) of the Act reads as under. "For the purpose of this clause public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely inter alia, if any of the activities of any of the persons referred to in this clause directly, or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life or public health. " The grounds of detention disclose that in all the four crimes registered against the detenu, he was arrested and subsequently released on bail by the Magistrate. The chemical analysis reports in all the four crimes only discloses that the toddy is adulterated with Chloral Hydrate but do not indicate that it is injurious to health or it will cause any harm to the consumers except in Cr.902/09-10 wherein it has been stated that adultrants are injuries to health. In RASHIDMIYA v. POLICE COMMISSIONER[1] the Supreme Court concluded that mere fact that three crimes had been registered by itself may not be sufficient but further satisfaction or further material to satisfy the condition or acting in any manner prejudicial to the maintenance of public order to be satisfied. The term or expression 'public order' may also be understood in the backdrop of the detention legislations and further the nature and the gravity of the offences which may have a close nexus to this concept also may have to be weighed by the detaining authority while making an order of detention. The Supreme Court in HARPREET KAUR V. STATE OF MAHARASHTRA[2] where identical provision of Maharashtra Prevention of dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981, which is in paramateria to the Act 1 of 1986 held as under: "The explanation to Section 2 (a) (supra) brings into effect a legal fiction as to the adverse effect on 'public order'. It provides that if any of the activities of a person referred to in clauses (i)- (iii) of Section 2 (a) directly or indirectly causes or is calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or any Section thereof or a grave or a wide-spread danger to life or public health, then public order shall be deemed to have been adversely affected. Thus, it is the fall out of the activity of the "bootlegger" which determines whether public order' has been affected within the meaning of this deeming provision or not. This legislative intent has to be kept in view while dealing with detentions under the Act.” The Detaining Authority except referring to the crimes and the reports of the chemical analyst and violation of the provisions of Act 1/1986 stating that he is the main accused, who is manufacturing and selling the toddy and consumption of the same is injuries to public health, which will affect the financial status as well as social life and ultimately their health, is not supported by any chemical analysis reports. The chemical analyst report only says that toddy is mixed with Chloral Hydrate in four crimes and in one case i.e. COR No.902/09-10, he was of the opinion that the adulterated toddy is injuries to health. Therefore, it is incumbent upon the Detaining Authority to specify that the activities of the detenu falls under the ‘bootlegger’, and acting in any manner prejudicial to the maintenance of public order; the nature and the gravity of the offence will have a close nexus to affect the public order which necessarily have to be weighed while making the order of detention. It is the fall out of the activity of the bootlegger which determines whether the public order has been affected within the meaning of deeming provision or not has to be satisfied by the Detaining Authority. Since the subjective satisfaction arrived by the Detaining Authority is not supported by chemical analysis report in all the four crimes, the order of detention cannot be maintained as it only refers to one act and there is no material to show that the detenu was habitually committing similar acts affecting the public order. For the foregoing reasons, the impugned order of detention passed by the Collector & District Magistrate, Rangareddy District in Rc.No.A2/414/10, dated 29-03-2010 as confirmed by the Government in G.O.Rt.No.1931, General Administration (Law & Order.II) Department, dated 22-04-2010 is set aside. The detenu, who is now lodged in the Central Prison, Cherlapally, shall be set at liberty forthwith, if his presence is not required in connection with any other case. The writ petition is accordingly allowed. ________________ A.GOPAL REDDY, J. ___________ K.C.BHANU,J. 02-09-2010 Murthy [1] AIR 1989 SC 1703 [2] AIR 1992 SC 979 = (1992) 2 SCC 177