IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY FOURTH DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO: 4390 of 2008 Between: Gollena Sunitha W/o. Gollena Ravi, R/o.11-23-159, L.B. Nagar, Warangal. ..... PETITIONER AND 1. The Collector and District Magistrate, Warangal District, Warangal. 2. The Government of Andhra Pradesh, Rep. by its Chief Secretary, Secretariat, Hyderabad. 3. The Superintendent, Central Prison, Warangal, Warangal District. .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ of Habeas Corpus under Article 226 of the Constitution of India directing the respondents to produce Gollena Ravi, Son of Komuraiah now detained in Central Prison, Warangal before this Court and he may be ordered to be released forthwith after declaring that his detention is illegal, and void and to pass such other orders in the interest of justice. Counsel for the Petitioner: MR.D.BHASKAR REDDY Counsel for the Respondents: THE ADVOCATE GENERAL The Court made the following : O R D E R : (per Hon’ble Sri Justice A.Gopal Reddy) The petitioner filed this petition under Article 226 of the Constitution of India seeking a writ of Habeas Corpus challenging the validity of her husband’s detention order passed by the Collector and District Magistrate, Warangal District, Warangal, under sub-section (2) of Section 3 r/w. Section 3(1) of the Andhra Pradesh Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug-offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (Act No.1 of 1986) (for short, ‘the Act’). 2. The order of detention was passed on 07.12.2007 on the ground that it was necessary to detain Gollena Ravi S/o.Komuraiah (i.e. the detenu) with a view to prevent him from further acting in any manner prejudicial to the maintenance of public order. In pursuance of the order of detention, the detenu was taken into custody on 12.12.2007 and immediately on his arrest he was served with grounds of detention and material relied upon in both English and vernacular language (Telugu) and later he was lodged at Central Prison, Warangal. 3. There were seven cases registered against the detenu by the officers of the Prohibition and Excise Station, Warangal (Urban), between 19.07.2006 to 25.10.2007, to conclude him as a bootlegger as defined under Section 2(b) of the Act. There were two incidents referred to in the grounds of detention forming the basis for arriving at the subjective satisfaction on the part of the Collector and District Magistrate, Warangal and they are as follows: “01. C.O.R.NO.89/2007, Dated 29-4-2007 u/s.7(A) r/w.8(e) of A.P. Prohibition Act, 1995 of Prohibition and Excise Station; Warangal (Urban) of Warangal District: On 29-4-2007 at about 6-00 P.M., Sri K.Vidyasagar, Prohibition and Excise Sub-Inspector, Station:Warangal (Urban) along with staff conducted raids near L.B,.Nagar Chowrasta, Warangal and found you and Pulicheru Suraiah in suspicious manner while each having a bag. On search of the bag, they found I.D. liquor in polythene covers and the Prohibition & Excise Officials seized the bag with polythene covers containing about (15) litres of I.D. liquor from your possession in the presence of mediators under cover of mediators report after drawing the samples. The Prohibition & Excise Officials have effected the arrest and a case in C.O.R.NO.89/2007-08, Dt:29-4-2007, u/s.7(A) r/w.8(e) of A.P.Prohibition Act, 1995 was registered and investigated into and sent you and Pulicheru Suraiah to the Court of Honourable Special Judicial First Class Magistrate for Prohibition and Excise cases at Warangal on 29-4-2007 and subsequently released on bail. The Government Chemical Examiner of Prohibition and Excise, Warangal, examined the sample and opined that the sample is illicitly distilled liquor containing sediment and it is injurious to health and unfit for Human consumption vide his letter vide C.E.No.702/2007, Sl.No.12488 and 12489, Dated:12-6-2007. After completion of investigation, the Charge Sheet was filed against you in the Court of Honourable Special Judicial First Class Magistrate for Prohibition and Excise cases at Warangal. The case is pending trial in CC No.320/07 on the file of the Honourable Special Judicial First Class Magistrate for Prohibition and Excise cases at Warangal. Fresh summons issued to the accused for appearance and case is posted to 19-02-2008. 02. C.O.R.No.677/2007-08, Dated:25-10-2007 u/s.7(A) r/w.8(e) of A.P. Prohibition Act, 1995 of Prohibition and Excise Station: Warangal (Urban) of Warangal District. On 25-10-2007 at about 8-15 A.M., Sri D.Rama Kishan, Prohibition and Excise Sub-Inspector, Station: Warangal (Urban) along with staff conducted raids near Kasibugga, Warangal and found you in suspicious manner with a bag. On search of the bag, they found I.D. liquor in polythene covers and the Prohibition & Excise Officials seized the bag with polythene covers containing about (40) litres of I.D. liquor from your possession in the presence of mediators under cover of mediators report after drawing the samples. The Prohibition & Excise Officials have effected the arrest and a case in C.O.R.NO.677/2007-08, Dt:25-10-2007, u/s.7(A) r/w.8(e) of A.P. Prohibition Act, 1995 was registered and investigated into and sent you to the Court of Honourable Special Judicial First Class Magistrate for Prohibition and Excise cases at Warangal on 25-10-2007. The Government Chemical Examiner of Prohibition and Excise, Warangal examined the sample and opined that the sample is illicitly distilled liquor containing sediment and it is injurious to health and unfit for human consumption vide his letter vide C.E.No.1314/2007, Sl.No.20546, dated:27-10-2007 opined that the contraband. The case has been Charge Sheeted on 27-11-2007 in the Honourable Court of Special Judicial First Class Magistrate for Prohibition and Excise cases at Warangal.” On reporting the fact of making of the order of detention to the State Government by the Collector and District Magistrate, Warangal, the order of detention was approved by the State Government vide G.O.Rt.No.7570 dated 15.12.2007. The State Government thereafter placed the case of the detenu before the Advisory Board constituted under Section 9 of the Act. On 08.01.2008 the Advisory Board, after providing an opportunity of hearing to the detenu as well as the Investigating Officer and after perusing the connected records, reported its opinion stating that “there is sufficient cause for the detention of the detenu, Sri Gollena Ravi, S/o.Komuraiah”. The State Government thereafter confirmed the order of detention of the detenu vide G.O.Rt.No.276, dated 16.01.2008. Hence, this writ petition. 4. Heard learned counsel appearing for the petitioner and learned Advocate General appearing for the respondents. 5. Sri D.Bhaskar Reddy, learned counsel appearing for the petitioner submits that in the grounds of detention, 7 crimes were mentioned to term the detenu as a bootlegger, but, copies of two crimes only were furnished and copies of the remaining five crimes have not been furnished to him for making an effective representation against the order of detention which amounts to non-compliance of Article 22 (5) of the Constitution of India and Section 8 of the Act. Therefore, the detention order is liable to be set aside. 6. The learned Government Pleader representing the Advocate General appearing for the respondents supported the detention order in toto contending that the earlier five crimes referred to along with the two crimes, on which basis the detention order was passed, were only passing reference and were not taken into consideration for further detaining the detenu, but only the two crimes mentioned in the detention order at S.Nos.6 and 7 were taken into consideration for detaining the detenu. She further contends that since all the material pertaining to the two crimes including the opinion of the public analyst were furnished to the detenu, constitutional mandate guaranteed under Article 22(5) of the Constitution of India has been complied with. The detenu unless shows prejudice that he failed to make an effective representation for non-supply of the crime details, the detention order of the detenu cannot be set aside. In support of her contention, strong reliance has been placed on the decision of the Supreme Court in L.M.S.Ummu Saleema v. B.B.Gujaral[1]. 7. Indisputably the material pertaining to the five crimes referred to in the grounds of detention, from 19.07.2006 to 24.03.2007, wherein liquor was seized while transporting for sale from the possession of the detenu, have not been supplied to him. Nor, the said crimes were investigated into or necessary charge-sheets were filed is also not mentioned, but the grounds of detention clearly show that in view of 7 crimes registered, including 2 crimes on which basis the detention order has been passed, the detenu was termed as a bootlegger under Section 2(b) of the Act. Section 8 of the Act clearly envisages that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but, not later than five days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the government, which is inconformity with the constitutional mandate under Article 22 (5) of the Constitution of India. 8. The Supreme Court in L.M.S.Ummu Saleema’s case (1 supra) after noticing its earlier judgment in Ichhu Devi Choraria v. Union of India[2], held that every failure to furnish copy a document to which reference is made in the grounds of detention under Section 3(1) of the Act is not an infringement of Article 22(5), fatal to the order of detention. It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation that amounts to violation of fundamental rights guaranteed by Article 22(5) of the Constitution. It was further held that it is unnecessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of facts and which are not relied upon by the detaining authority in making the order of detention. The Supreme Court after satisfying with the records placed before it held that the two documents, copies of which were not furnished to the detenu, cannot be said to be documents which were relied upon by the detaining authority in making the order of detention, and therefore, the detenu could not properly complain that he was prevented from making an effective representation and there was no violation of the right guaranteed by Art.22 of the Constitution. 9. In the instant case, the grounds of detention as referred to above, do not indicate that the detenu was termed as a bootlegger only on the two crimes which were taken into consideration for detaining him, but it clearly shows that the seven crimes including the five crimes, the copies of which were not supplied to the detenu, to term him as a bootlegger and his activities are in prejudicial manner to the maintenance of public order as stated in Section 2(b) of the Act and the explanation given thereto, and accordingly it was opined that with a view to prevent him from further acting in any manner prejudicial to the maintenance of public order by indulging in possession, transportation and sale of I.D. liquor in L.B.Nagar, Warangal, his detention is necessary. 10. In our opinion, the five crimes referred to above are vital for coming to the conclusion that the detenu is a bootlegger, the copies of which were not supplied to him. Therefore, the constitutional mandate under Article 22(5) of the Constitution of India and the statutory provisions under Section 8 of the Act, have not been complied with, which resulted in denying the opportunity to the detenu to make an effective representation. In view of the same, the detention order passed by the detaining authority as approved and confirmed by the State Government cannot be sustained and the same is liable to be set aside. 11. In the result, this writ petition is allowed setting aside the detention order of the detenu viz., Gollena Ravi S/o.Komuraiah, in Rc.No.1390/2007/P&E/A4, dated 07.12.2007, passed by the Collector and District Magistrate, Warangal, as approved by the Government of A.P., vide G.O.Rt.No.7570, dated 15.12.2007 of General Administration (LAW&ORDER.II) Department, and confirmed by the 2nd respondent vide G.O.Rt.No.276, dated 16.01.2008, and the said detenu viz., Gollena Ravi is directed to be set at liberty forthwith, if he is not otherwise required in any other crime. ________________ A.GOPAL REDDY, J. ________________________ B.SESHASAYANA REDDY, J. Date:24th March, 2008. TNB/CS ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. The Collector and District Magistrate, Warangal District, Warangal. 2. The Chief Secretary, Government of Andhra Pradesh, Secretariat, Hyderabad. 3. The Superintendent, Central Prison, Warangal, Warangal District. 4. 2 CCs to the Advocate General, High Court of A.P., Hyderabad (OUT) 5. The Director General of Police, A.P., Hyderabad. 6. The Prl. Secretary to Government, Home Department, Secretariat, Hyderabad. 7. The Director General and Inspector General of Prisons Correctional Services A.P., Hyderabad. 8. Detenu viz., Gollana Ravi S/o.Komuraiah, lodged in Central Prison, Warangal. 9. 2. CD copies 10. One CC to Sri D.Bhaskar Reddy, Advocate (OPUC). Form-NIC-OGS/WP{VSMI} [1] AIR 1981 SUPREME COURT 1191 [2] AIR 1980 SUPREME COURT 1983