THE HON’BLE SRI JUSTICE GHULAM MOHAMMED and HON’BLE SRI JUSTICE G. BHAVANI PRASAD +WRIT PETITION No.18129 of 2008 % 14.10.2008 W.P.No.18129 of 2008: # T. Tulasamma @ Padma, W/o. T. Nageswara Rao, R/o. H.No. 50-47, Old Bus Stand, Nandigama. ..... PETITIONER AND 1 The Chief Secretary, Government of Andhra Pradesh, Secretariat, Hyderabad. 2 The Collector & District Magistrate, Krishna District, Machiliapatnam. 3 The Superintendent, Central Jail, Rajahmundry. .....RESPONDENTS Counsel for the Petitioner:MR.C.PRAVEEN KUMAR Counsel for the Respondents:THE ADVOCATE GENERAL < Gist: >Head Note ? Citations: [1] 2005 CRL.L.J. 689 2 2006(1) ALD (Crl.)473 (AP) 3 2005(2) ALT 244 (F.B) 4 (2005) 3 Supreme Court Cases 663 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FOURTEENTH DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NO : 18129 of 2008 Between: T. Tulasamma @ Padma, W/o. T. Nageswara Rao, R/o. H.No. 50-47, Old Bus Stand, Nandigama. ..... PETITIONER AND 1 The Chief Secretary, Government of Andhra Pradesh, Secretariat, Hyderabad. 2 The Collector & District Magistrate, Krishna District, Machiliapatnam. 3 The Superintendent, Central Jail, Rajahmundry. .....RESPONDENTS 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 Timmasathi Nageswara Rao, S/o. Thirupataiah, now detained in Central Prison, Rajahmundry, before this Court and he may be ordered to be released forthwith after declaring that his detention is illegal and void. Counsel for the Petitioner:MR.C.PRAVEEN KUMAR Counsel for the Respondents:THE ADVOCATE GENERAL The Court made the following : ORDER: This writ petition is filed by the petitioner seeking a writ of habeas corpus directing the respondents to produce her husband, by name, Timmasathi Nageswara Rao-alleged detenu, who was detained in Central Prison, Rajahmundry, before this Court and he may be ordered to be released forthwith. The brief facts of the case are that the second respondent- Collector and District Magistrate, Krishna District has passed an order, dated 25.03.2008, under Section 3(1) & (2) r/w Section 2(a) & (b) of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short ‘the Act’), detaining the alleged detenu in Central Prison, on the ground that he is a bootlegger within the meaning of the Act and with a view to prevent him from action in a manner prejudicial to the maintenance of public order. It is stated that from July, 2005 to February, 2008, seven cases were registered against the alleged detenu i.e., (1) Crime No.106/2005-06 dated 02.07.2005 for possession and sale of 5 litres of I.D.liquor (2) Crime No.133/2005-2006 dated 06.08.2005 for possession and sale of 40 litres of I.D.Liquor (3) Crime No.221/2005-2006 dated 05.11.2005 for possession and sale of 10 litres of I.D. liquor (4) Crime No.261 of 2005-2006 dated 20.12.2005 for possession and sale of 30 litres of I.D. liquor (5) Crime No.313 of 2005-2006 dated12.02.2006 for possession and sale of 40 litres of I.D. Liquor (6) Crime No.76 of 2007-2008 dated 08.08.2007 for possession, transportation and sale of 120 litres of I.D. liquor with rickshaw and (7) Crime No.245 of 2007-2008 dated 14.02.2008 for possession and sale of 20 litres of I.D. liquor. The petitioner states that the detaining authority has relied on stale incidents while passing the order of detention, which are irrelevant and non-existing. Hence, she filed the present writ petition. The second respondent-Collector and District Magistrate, Krishna District, filed counter-affidavit stating that the alleged detenu has been indulging in clandestine business by possession, transportation and sale of I.D. liquor in and around Nandigama village, Krishna District in the manner prejudicial to the maintenance of public order and tranquility, thereby causing danger to the public health, and those activities fall within the definition of ‘bootlegger’ as defined under Section 2(b) of the Act; and that after determining the conduct of the alleged detenu, against whom various cases were registered, passed the order of detention on 25.03.2008 and detained him in Central Prison, Rajahmundry. The Government has also approved the same vide G.O.Rt.No.1923, General Administration (Law & Order.II) Department, dated 28.03.2008. Heard the learned counsel for the petitioner and the learned counsel representing the Advocate General. Learned counsel for the petitioner contended that the quantity of liquor seized from the alleged detenu is very small and there cannot be any proximity with reference to the quantity seized and that since all the incidents are stale incidents, the order of detention cannot be held to be justified. With regard to the 6th incident, learned counsel contended that the alleged 120 litres of I.D. liquor in Crime No. 76/2007-2008 was not recovered from the alleged detenu, but it was recovered from some other persons. With regard to 5th and 6th incidents, he contended that there is a gap of one year six months between them and that there is no proximity with reference to the stale incidents. He has drawn the attention of this Court to the judgment of this Court in COLLECTOR AND DISTRICT MAGISTRATE, ELURU, ANDHRA PRADESH v. SANGALA KONDAMMA[1] wherein it was held as under: “We notice from the preamble and statements and objects of the Act that it aims to prevent a person from indulging in certain illegal activities enumerated therein by his preventive detention. For the said purpose, the detaining authority must be satisfied that the proposed detenu is likely to indulge in such illegal activities in future also. This is a satisfaction that could be reasonably arrived at by the detaining authority only by examining the material that is produced by the authority proposing his detention. In such a process, a detaining authority may not always take into consideration a stray or solitary incident which may not give rise to a reasonable apprehension or satisfaction as to such future act of the proposed detenu. Therefore, it is necessary for the authority proposing the detention of a person under the Act to produce such material which shows the continuous previous illegal activities of the proposed detenu which would satisfy the detaining authority of the need for detaining such a person In other words, the material produced by the authority proposing the detention should form a chain of incidents last of which will have to be proximate to the date of proposed detention while other acts must be proximate to each other. Thus, if the facts placed before the detaining authority are proximate to each other and the last of the fact mentioned in proximate to the order of detention then the early incidents cannot be treated as stale and detention order cannot be set aside. In the instant case, it is seen that between the period from 10.01.2001 and 25.10.2002 the detenu was involved in five incidents of bootlegging which are reasonably proximate to each other and the last of the incidents being proximate to the order of detention, we think the High Court was not justified in treating the two incidents of 17.01.2000 and 10.01.2001 as stale by taking them in isolation. In our opinion, the Court should have considered the proximity of the incidents between themselves which indicates the possibility of the proposed detenu continuing to indulge in the illegal activities which requires his preventive detention. In the present case, as noticed above, the five incidents recorded in the order of detention being proximate enough to each other shows the continuity of the acts of the detenu. In such a fact situation, we think the High Court erred in coming to the conclusion that two of the five grounds being not proximate to the order of detention and the order of detention was based on stale grounds. While it can be stated that the incidents of 17.01.2000 and 10.01.2001 could not by themselves have been sufficient grounds to detain the detenu but would certainly become a relevant material along with other three grounds dated 03.02.2002, 6.10.2002 and 25.10.2002 to come to the conclusion that there is a need for detaining the detenu to prevent him from indulging in similar activities in the future”. He has drawn the attention of this Court to another judgment of this Court in BOYA THAYAMMA v. GOVERNMENT OF ANDHRA PRADESH[2], wherein it was held has under: “The order of detention refers to the information laid before the Collector and District Magistrate by the Prohibition and Excise Superintendent, Kurnool showing that the detenu was found in possession and was engaged of the sale of illicitly distilled liquor in and around Adoni Town, which, in the opinion of the detaining authority, is amounting to acting prejudicial to the maintenance of pubic order and tranquility, thereby causing danger to the public health and safety. 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. In our opinion, the officer concerned has used the stock words, phrases and expressions appearing in the statute to justify the exercise of power under Section 3 of the Act”. Learned counsel for the petitioner further contended that possession of small quantity of illicitly distilled liquor could not be treated as prejudicial to the maintenance of public order. He has drawn the attention of this Court to Section 2(a) of the Act, which reads as under: “(a) Acting in any manner prejudicial to the maintenance of public order” means when a boot legger, 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”. Section 3(1) of the Act read as under: “If the Government was satisfied with respect to any bootlegger, dacoit, drug-offender, goonda, immoral traffic offender, or land-grabber that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained”. He also contended that the Collector and District Magistrate has passed the order of detention mechanically without considering the small quantity of liquor, which does not affect the maintenance of public order. He further contended that some documents supplied to the alleged detenu are not in a language known to him to make an effective representation. On the other hand, learned counsel representing the Advocate General contended that the alleged incidents are not stale incidents because the first incident was occurred on 02.07.2005 wherein 5 litres of I.D.liquor was seized from the possession of the alleged detenu and immediately, the second incident was occurred on 06.08.2005, wherein 40 litres of I.D. liquor was seized from him, and that the 3rd incident was occurred on 05.11.2005, in which 10 litres of I.D. liquor was seized; in 4th incident, which was occurred on 20.12.2005, 30 litres of I.D.liquor was seized; in 5th incident, which was occurred on 12.02.2006, 40 litres of I.D. liquor was seized; in 6th incident, which was occurred on 08.08.2007, 120 litres of I.D.liquor was seized; and in 7th incident, which was occurred on 14.02.2008, 20 litres of I.D.liquor was seized from the alleged detenu. She contended that the seized samples of liquor were sent to analysis and the analyst gave a report that the samples are unfit for human consumption. She further contended that since the alleged detenu is indulging in these continuous activities, which are prejudicial to the maintenance of public order, his detention order is justified and that the said order was also approved by the State Government, and therefore, there is no illegality or irregularity in the order of detention warranting interference by this Court. She has drawn the attention of this Court to the judgment of this Court in DODDI SHARADA v. COLLECTOR AND DISTRICT MAGISTRATE, HYDERABAD DISTRICT, HYDERABAD[3] wherein it was held as under: “Mere sale of illicit liquor not a relevant ground for detention- However, if detaining authority is satisfied on material before him that such illicit liquor would cause danger to public health, it is a relevant ground for detention. She has also drawn the attention of this Court to the judgment of the Apex Court in DISTRICT COLLECTOR, ANANTHAPUR v. V. LAXMANNA[4], wherein it was held as under: “If the detention is on the ground that the detenu is indulging in manufacture or transport or sale of arrack then that by itself would not become an activity prejudicial to the maintenance of public order because the same can be effectively dealt with under the provisions of the Excise Act but if the arrack sold by the detenu is dangerous to public health then under the Act, it becomes an activity prejudicial to the maintenance of public order, therefore, it becomes necessary for the detaining authority to be satisfied on material available to it that the arrack dealt with by the detenu is an arrack which is dangerous to public health to attract the provisions of the Act and if the detaining authority is satisfied that such material exists either in the form of report of the Chemical Examiner or otherwise, copy of such material should also be given to the detenu to afford him an opportunity to make an effective representation. From a perusal of the material on record, it is seen that the alleged detenu is involved in several similar offences of clandestine business by possession, transportation, and sale/distribution of illicitly distilled liquor, which is unfit for human consumption, as per the report of the analyst. Public order in terms of explanation to Section 2(a) of the Act would include persons who cause harm and danger to public health and therefore, the learned Magistrate is justified in recording a finding that when the activities of a person are danger to the public health, he has to be detained and it is necessary to prevent him from acting further. Further, as per the provisions of the Act, the seized I.D. liquor, which is dangerous to public health, would become an act prejudicial to the maintenance of public order. When several cases are pending against the alleged detenu for his illegal activities, which cannot be treated as stale incidents, it cannot be said that his detention is illegal. As per the decision reported in DISTRICT COLLECTOR, ANANTHAPUR, 4 supra, the material relied upon by the detaining authority etc. should be given to the detenu to afford him an opportunity to make an effective representation. It is stated in the counter affidavit that the material relied on by the detaining authority as well as the copies filed before this Court were served on the alleged detenu. The Supreme Court also held that earlier incidents should become relevant material along with the other grounds and therefore, all the seven incidents have to be taken into account, while passing the order of detention. Having regard to the facts and circumstances of the case, we do not find any illegality or irregularity in the order of detention. Accordingly, the writ petition is dismissed. No order as to costs. _____________________ GHULAM MOHAMMED, J _____________________ G. BHAVANI PRASAD, J Date:14.10.2008 sj ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{SPJS} [1] 2005 CRL.L.J. 689 [2] 2006(1) ALD (Crl.)473 (AP) [3] 2005(2) ALT 244 (F.B) [4] (2005) 3 Supreme Court Cases 663