*THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE K.C.BHANU +Writ Petition No.13783 of 2008 %Date: 20-08-2008 #Between: Pamarthi Venkateswaramma, w/o. P.Nagamalleswara Rao, R/o. Chinnapandraka, Kruthivennu Mandal, Krishna District. ..... PETITIONER AND 1 The Collector & District Magistrate, Machilipatnam, Krishna District and 2 others. .....RESPONDENT(S) ! Counsel for Petitioner : Sri C.Padmanabha Reddy, Senior Counsel, representing Sri C.Praveen Kumar, Advocate ^Counsel for Respondents : THE ADVOCATE GENERAL <GIST: > HEAD NOTE: ? Cases referred 1. 2005 (1) ALT 124 (D.B.) 2. 2006 (1) ALD (Crl.) 473 (AP) IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTIETH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE D.S.R.VARMA and THE HON'BLE MR JUSTICE K.C. BHANU WRIT PETITION No. 13783 of 2008 Between: Pamarthi Venkateswaramma, W/o. P. Nagamalleswara Rao, R/o. Chinnapandraka, Kruthivennu Mandal, Krishna District. ..... PETITIONER AND 1 The Collector & District Magistrate, Machilipatnam, Krishna District. 2 The Chief Secretary, Government of A.P. Secretariat, Hyderabad. 3 The Superintendent, Central Jail, Rajahmundry. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue a Writ of Habeas Corpus Under Article 226 of the Constitution of India directing the respondents to produce Sri Pamarthi Nagamalleswara Rao, S/o. Late Subba Rao, detained in Central Prision, Rajahmundry, before this Hon'ble Court and he may be ordered to be released forthwith after declaring his detention is illegal and void and pass such other order or orders in the interest of Justice. Counsel for the Petitioner : MR. C.PRAVEEN KUMAR Counsel for the Respondents : THE ADVOCATE GENERAL The Court made the following : THE HON’BLE SRI JUSTICE D.S.R. VARMA AND THE HON’BLE SRI JUSTICE K.C. BHANU WRIT PETITION No.13783 of 2008 ORAL ORDER: (per the Hon’ble Sri Justice D.S.R.Varma) Heard Sri C.Padmanabha Reddy, learned Senior Counsel, representing Sri C.Praveen Kumar, learned counsel appearing for the petitioner, as well as the learned Assistant Government Pleader, representing the learned Advocate General, appearing for the respondents. 2. In the present Writ of Habeas Corpus, the petitioner seeks production of her husband viz., Sri Pamarthi Nagamalleswara Rao, s/o. late Subba Rao, aged about 43 years, resident of Chinapandraka of Kruthivennu Mandal, Krishna District, who is now lodged in Central Prison, Rajahmundry, before this Court, and to release him forthwith. 3. The facts, in brief, are as under: The husband of the petitioner was allegedly involved in traﬃcking of illicit liquor in and around Chinapandraka village and nearby villages in Kruthivennu Mandal, Krishna District. Taking into account of his frequent involvement in the said activity, the competent authority i.e., the Collector and District Magistrate, Krishna District, the ﬁrst respondent herein, exercising the jurisdiction conferred under Section 3 (1) and (2) read with Section 2 (a) and (b) of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Oﬀenders, Goondas and Immoral Traﬃc Oﬀenders and Land Grabbers Act, 1986 (for brevity “Act 1 of 1986”), passed order, dated 20-03-2008, in proceedings Rc.No.81/2008/A3 directing to detain the alleged detenu. Consequently, the alleged detenu was taken into custody on 21-03-2008 and the same was forwarded to the Government for approval. The Advisory Board constituted under Section 9 of Act 1 of 1986, reviewed the case of the alleged detenu on 21-04-2008 and eventually the Government had passed the ﬁnal order vide G.O.Rt.No.2766, General Administration (Law & Order.II) Department, dated 09-05-2008, conﬁrming the order passed by the competent authority, and as a result of which the alleged detenu was directed to be detained for a period of 12 (twelve) months from the date of his detention i.e., 21-03-2008. Aggrieved by the same, the petitioner has ﬁled the present writ petition seeking production of her husband and to release him forthwith. 4. The order of detention had been passed against the alleged detenu taking into consideration 5 (ﬁve) instances, in which he was found to be involved in traﬃcking I.D. liquor, which was found to be causing health hazards and unﬁt for human consumption. 5. For better appreciation, the said ﬁve instances are detailed hereunder: 1. On 29-03-2006, the alleged detenu was found to have been in possession of 50 (ﬁfty) litres of I.D. liquor and Crime No.469/2005-06, was registered u/s 7(A) r/w 8(e) of A.P. Prohibition (Amendment) Act, 1997 (for brevity “the Prohibition Act of 1997”). He was produced before the Magistrate concerned and later enlarged on bail. 2. On 17-05-2006, again the alleged detenu was found to have been in possession of 5 (ﬁve) litres of I.D. liquor and Crime No.75/2006-07, was registered u/s 7(A) r/w 8(e) of the Prohibition Act, 1997. He was produced before the Magistrate concerned and later enlarged on bail. 3. On 27-12-2006, again the alleged detenu was found to have been in possession of 5 (ﬁve) litres of I.D. liquor and Crime No.508/2006-07, was registered u/s 7(A) r/w 8(e) of the Prohibition Act of 1997. He was produced before the Magistrate concerned and later enlarged on bail. 4. On 30-07-2007, again the alleged detenu was found to have been in possession of 5 (ﬁve) litres of I.D. liquor and Crime No.174/2007-08, was registered u/s 7(A) r/w 8(e) of the Prohibition Act of 1997. He was produced before the Magistrate concerned and later enlarged on bail. 5. On 29-09-2007, again the alleged detenu was found to have been in possession of 5 (ﬁve) litres of I.D. liquor and Crime No.300/2007-08, was registered u/s 7(A) r/w 8(e) of the Prohibition Act of 1997. He was produced before the Magistrate concerned and later enlarged on bail. 6. In all the above ﬁve cases, the samples collected were sent for chemical analysis and the authorities, who analysed the said samples, opined that the samples were illicitly distilled liquor, unﬁt for human consumption and injurious to health. 7. Sri C.Padmanabha Reddy, learned Senior Counsel appearing for the petitioner raised only one ground i.e., with regard to less quantity of illicit liquor that was being transported by the alleged detenu. It is his contention that since the alleged detenu was found to have been carrying small quantities of illicit liquor, the competent authority was in error in passing the order of detention. 8. From the order of detention, it appears that the contraband liquor, which was seized from the possession of the alleged detenu, was found to have containing organic acids, higher Alcohols, Aldehydes, furfural and other impurities in large quantities and the same is violative of the provisions of the Prohibition Act of 1997. It was also found that the kind of Alcohol that was recovered from the alleged detenu was highly injurious to human health, unﬁt for human consumption and also leads to other impairments like diaherroea, gastric irritation, loss of appetite, loss of memory, blurred vision, damage to liver and also aﬀect the nerves system. Basing on the said opinion of the Experts and also the fact of seizure of contraband liquor on the above said occasions, the ﬁrst respondent, having satisﬁed that the alleged detenu has been frequently indulging in similar activities without any fear and creating a sense of insecurity and danger to the life and health of the public in the locality, observed that the activities of the alleged detenu have been causing wide-spread danger to public health and creating a feeling of insecurity among the general public and that the execution of criminal prosecution against the alleged detenu in the above referred oﬀences failed to have any desired impact on the clandestine and bootlegging activities of the alleged detenu. The competent authority was of the further opinion that if the said activities are allowed unchecked, there was every danger costing many lives of poor people in Kruthivennu Mandal and its surrounding villages and thereby effects the public order. 9. There cannot be any second opinion about the views expressed by the Experts as regards the hazards of illicit liquor and also the opinion of the detaining authority, as well. 10. The only point that has been urged and falls for consideration before this Court is as to whether the alleged detenu can be accorded the beneﬁt of acquittal on the ground that he was found to have been in possession of small quantities of I.D. liquor. 11. In this context, the learned Senior Counsel heavily relied on the judgments rendered by two diﬀerent Division Benches of this Court in CHALLA VENKATESWARA RAO v. COLLECTOR AND DISTRICT MAGISTRATE, KRISHNA DISTRICT[1] and BOYA THAYAMMA v. GOVERNMENT OF A.P. AND OTHERS[2]. 12. In CHALLA VENKATESWARA RAO’s case (1 supra) a Division Bench of this Court observed as under: “Apart from that, we also ﬁnd that the quantity seized from the possession of the detenu was in a very small quantity like 5 litres and 10 litres and even the provisions of the Prohibition Act permits compounding of the oﬀences if the quantity of liquor is less than 20 litres. In such an event we are also of the considered view that possession of small quantity of liquor would not create a ground for feeling of insecurity among the general public or any section thereof or grave or widespread danger to life or public health, and the situation cannot be said to travel beyond the clutches of normal statutory procedures as contained in A.P. Prohibition Act.” 13. In BOYA THAYAMMA’s case (2 supra), another Division Bench of this Court observed as under: “……However, the material placed on record do not show that the detenu was selling illicitly distilled liquor and that such sale was dangerous to public health and safety. It is also inexplicable as to how possession of small quantity of illicitly distilled liquor, even if found true, is prejudicial to the maintenance of public order necessitating exercise of power of preventive detention. ……” 14. A conjoint reading of the observations made in the judgments referred to above shows that both the Division Benches have taken a view that small quantities of illicit liquor found in the custody of the alleged detenus therein were not proved to be prejudicial to the maintenance of public order necessitating exercise of power of preventive detention. 15. Further, in both the cases, the quantity of illicit liquor seized from the custody of the detenus therein were ranging from 5 litres to 20 litres and the said quantity was found to be small, which is not capable of causing widespread danger to public health and safety. It was further observed that there was no factual basis as to whether carrying of such quantity of illicit liquor would cause any harm to public health. Therefore, in the above cases, the quantity also was taken into consideration along with other facts and circumstances on record. Therefore, in the light of the facts and circumstances in those cases, the observations of this Court as regards the quantity are unexceptionable. 16. From the Statute, we do not ﬁnd anywhere as to what is meant by small quantity, or for that matter, what is the limited and permissible quantity. In the absence of any such prescription, carrying any amount of illicit liquor is an offence under the Excise Laws. 17. But, in the context of application of the provisions of Act 1 of 1986, the Courts have to see as to whether such quantity is really capable of causing any hazard or aﬀects the safety of public health. Sometimes, small quantities like ½ litre or 1 litre of illicit liquor may be meant for personal consumption only and not for distribution to others, thereby causing danger to the consumers. Therefore, depending upon the facts and circumstances of the case and the frequency of involvement of a person in traﬃcking illicit liquor, the Courts have to weigh the gravity of such prohibited act. 18. It is to be further seen that when a crime was registered against a person from whom illicit liquor had been seized, he will have to necessarily undergo the trial and shall be punished. In such cases, the quantity is not material for the criminal Court in order to award conviction. 19. Whereas, while exercising jurisdiction under Section 3 (1) and (2) of Act 1 of 1986, the competent authority has to take into consideration various other circumstances, particularly from the perspective of general public and the health etc. 20. The very object of Act 1 of 1986 is meant for prevention of certain kinds of social oﬀences, which are hazardous to the health of the general public. In other words, the order of detention cannot, in strict sense, be called as a punitive action, but it can be termed as a preventive action. The punitive action is always in the realm of the competent Courts having the jurisdiction. The enquiry into the gravity of the oﬀence also would vary from the criminal Court to the authority under Act 1 of 1986. To put it slightly in a diﬀerent way, the jurisdiction being exercised by the competent criminal Court in the nature of enquiry is diﬀerent from the jurisdiction and the object of the competent authority under Act 1 of 1986. 21. Therefore, no doubt, the quantity, in all circumstances, may not be relevant, but, at the same time, may be relevant, in certain cases where the quantity is too low to take into account in order to unveil the jurisdiction of the competent authority under Section 3 of Act 1 of 1986. 22. For better appreciation, it may be relevant to look into the deﬁnition of “acting in any manner prejudicial to the maintenance of public order”, as deﬁned under Section 2(a) of Act 1 of 1986, which reads under: “(a) ‘acting in any manner prejudicial to the maintenance of public order’ means when a boot-legger, a 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:-- 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 pubic or any section thereof or a grave of widespread danger to life or public health.” 23. From the above, the object of Act 1 of 1986 is that traﬃcking of such illicit liquor need not necessarily adversely aﬀect any person or persons, but it is suﬃcient, if it is likely to aﬀect adversely the maintenance of public order. Such likelihood of causing harm or danger may be because of the direct or indirect involvement of the person, who is carrying the illicit liquor. 24. It is further obvious that the quantity is totally immaterial. But, as already noticed, may be material, in certain cases, not only depending upon the facts and circumstances, but also subject to the satisfaction of the competent authority. What all the Courts are expected to do is to examine whether such satisfaction of the competent authority is rational or not and, in that process, if it is found that small quantities may not really aﬀect the public order, interference by this Court is warranted. 25. In other words, the satisfaction of the competent authority cannot be subjected to strict scrutiny basing only on the quantity of illicit material. It is essential to look into the other aspects also and consider the same before arriving at the conclusion that the quantity, which was found in the custody of the detenu, is hazardous to the public health and maintenance of public order. 26. Coming to the case on hand, it is to be seen that the alleged detenu was found to be in possession of 50 litres of illicit liquor on one occasion and 5 litres each on four other occasions. The very fact that the alleged detenu was carrying 50 litres of illicit liquor on one occasion indicates that the alleged detenu has been in the habit of carrying illicit liquor of more than 5 litres. Therefore, we cannot conclude that the alleged detenu was carrying only 5 litres of illicit liquor and that small quantity cannot be termed as hazardous to public health and adversely affect the maintenance of public order. 27. It is also clear from the order of detention, that the alleged detenu was caught on ﬁve occasions and on all the occasions he was found to have been involved in the same kind of activity and criminal cases were registered and pending against him. 28. It is also on record that Dr. B.Balaraju, M.D., Chief Physician, Professor and Head of the Department of Medicine, Osmania Medical College and General Hospital, Hyderabad, oﬀered his remarks about the ill-aﬀects of illicit liquor and opined that illicit liquor causes Liver diseases and responsible for Cardiac problems like Bradycardia and sudden death, mental irritation, Stupor coma, Convulsion and Renal failure. Therefore, if 5 litres of illicit liquor is frequently distributed to the general public, in all probability, it may lead to serious health hazards. It is also not the case of the alleged detenu that the said quantity is not for personal consumption. 29. Having regard to the totality of the circumstances, though 5 litres of illicit liquor appear to be small, when compared to the ill-eﬀects of such quantity, it is not that much small as that of the quantity. 30. Therefore, having regard to the facts and circumstances, we are of the view that the order of detention and the consequential orders passed against the alleged detenu do not suﬀer from any inﬁrmity, particularly in view of the findings recorded by the competent authority. 31. For the foregoing, we do not ﬁnd any merit in the writ petition and the same is liable to be dismissed. 32. Accordingly, the writ petition is dismissed, at the stage of admission. However, there shall be no order as to costs. ________________________ JUSTICE D.S.R. VARMA _______________________ JUSTICE K.C. BHANU 20-08-2008 Msr NOTE: L.R. Copy be marked. (B/O) Msr. ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Collector & District Magistrate, Machilipatnam, Krishna District. 2 The Chief Secretary to Government, Government of A.P., Secretariat, Hyderabad. 3 The Superintendent, Central Jail, Rajahmundry. 4. Two CCs to the Advocate General, Government of A.P., High Court Buildings, Hyderabad (OUT). 5. Two CD copies THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE K.C. BHANU WRIT PETITION No.13783 of 2008 20-08-2008 (Msr) [1] 2005 (1) ALT 124 (D.B.) [2] 2006 (1) ALD (Crl.) 473 (AP)