HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE V.SURI APPA RAO Writ Petition No.32737 of 2010 Date: 28-02-2011 Between Ragolu Vimala … Petitioner and The Government of Andhra Pradesh, Rep. by its Chief Secretary to Government, General Administration (Law & Order.II) Department, Secretariat, Hyderabad and 6 others … Respondents HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE V.SURI APPA RAO Writ Petition No.32737 of 2010 Order: (per V.Eswaraiah, J.) The petitioner, who is the wife of the alleged detenu Ragolu Sankara Rao, son of late Appayya, resident of Kothavalasa of Parvathipuram Municipality of Vizianagaram district filed this Writ of habeas corpus questioning the detention order passed by the 2nd respondent in Rc.No.349/2010/A4 dated 14-10-2010 under the provisions of Section 3(1) and (2) read with Section 2(a) and (b) of the Andhra Pradesh Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (Act 1 of 1986) (hereinafter called as ‘the Act’). 2. The said order of detention dated 14-10-2010 made by the 2nd respondent-Collector and District Magistrate, Vizianagaram district was approved by the Government in G.O.Rt.No.5173 GENERAL ADMINISTRATION (LAW & ORDER.II) DEPARTMENT, dated 21-10- 2010 under sub-section (3) of Section 3 of the Act. Thereafter, the matter was placed before the Advisory Board constituted under Section 9 of the said Act and the Advisory Board reviewed the case on 10-11-2010 and tendered its report dated 10-11-2010 opining that there is sufficient cause for the detention of the detenu. After considering the said report of the Advisory Board, the Government, in exercise of the powers conferred under sub-section (1) of Section 12 read with Section 13 of the Act, confirmed the order of detention and directed that the detenu be continued in detention for a period of 12 months from the date of his detention i.e., 19-10-2010. Aggrieved by the same, this writ petition is filed. 3. Heard both the learned counsel. 4. The detention order dated 14-10-2010 was passed by the 2nd respondent-Collector and District Magistrate, Vizianagaram district on the grounds that the detenu has been repeatedly indulging in committing the offences of possession for the purpose of sale of the illicitly distilled liquor in contravention of Section 7(A) read with Section 8(e) of the A.P. Prohibition Act, 1995 and the illicitly distilled liquor was seized in 3 Crime Nos.451 of 2009-10, 130 of 2010-11 and 177 of 2010-11 of Parvathipuram Prohibition and Excise Station and analysed the seized liquor by the Chemical Examiner, who found that the said liquor is unfit for human consumption and injurious to health. According to the said information laid by the requisitional authority i.e., the Prohibition and Excise authorities before the District Collector, based on the material placed before the requisitional authority, the District Collector formed an opinion after satisfying himself that the action of the said detenu is prejudice for the maintenance of the public order and therefore, it is necessary to prevent him from further indulging in any such dangerous activities prejudicial to maintenance of public order and accordingly directed for the detention. 5. The narration of 3 cases registered against the detenu are as follows: Case No.1:- Case in Crime No.451 of 2009-10 dated 28-01-2010 of Prohibition and Excise Station, Parvathipuram. The said case was registered on 28-01-2010 by the Prohibition and Excise Sub Inspector, Parvathipuram under the mediators’ report stating that on 28-01-2010 at about 4.15 p.m., the Prohibition and Excise Sub Inspector, Parvathipuram and the staff reached at Naviri Colony near the rice mill of Parvathipuram town limits along with the mediators and while conducting route-watch they found 2 persons carrying 2 packets on Bajaj Chetak scooter and in another moped i.e., Bajaj Sunny behind which 2 persons were also carrying 2 bags and after seeing the Excise officials from 20 metres away, the said packets were thrown on the ground and escaped by going back. The alleged detenu was shown as accused No.1 along with 3 more others. The mediators’ report does not disclose the name of the mediator but at the end of the mediators’ report, the signature of one S.Srinivasa Rao, who is said to have been the mediator, contains. Pursuant to the said mediators’ report, Crime No.451 of 2009-10 was registered for the offence under Section 7(A) read with Section 8(e) of the A.P. Prohibition Act, 1995 and after investigation the charge-sheet was filed vide C.C.No.226 of 2010 on the file of the Judicial Magistrate of I Class, Parvathipuram. 6. The learned counsel for the petitioner submitted that according to the charge-sheet, one S.Srinivasa Rao alone was the mediator, who is said to have identified the accused and the said Srinivasa Rao, the so-called mediator, is no other than working as job typist at the Prohibition and Excise Station, Parvathipuram and he worked previously in the said Station, as is evident from the judgment dated 19-11-2010 in C.C.No.226 of 2010 on the file of the Additional Judicial Magistrate of I Class, Parvathipuram. As per the charge-sheet, 4 persons were found carrying the illicitly distilled liquor of 4 bags, each bag containing 25 litres of I.D. liquor in a rubber tube. It is stated that admittedly 4 persons are said to have been escaped and the said mediators’ report, crime and filing of the charge-sheet are foisted with the help of the job typist who worked in the Excise Station, but, however, the alleged detenu was found not guilty along with 3 other accused in the said C.C., for the offences alleged. 7. Case No.2:- Crime No.130 of 2010-11 dated 20-7-2010 of Prohibition and Excise Station, Parvathipuram. This crime was registered based on the mediators’ report dated 20-7-2010 stating that on 20-7-2010 at about 5.30 p.m., during the raid conducted by the Prohibition and Excise Inspector, Parvathipuram along with the staff at Seemanaiduvalasa village limits of Jiyyammavalasa Mandal, 2 persons were found carrying 2 rubber mica tubes and on interrogation they have revealed that the said packets containing 200 illicitly distilled arrack sachets, each sachet containing 100 ml., and the detenu is accused No.1. The samples were drawn under the cover of panchanama. Based on the said mediators’ report, Crime No.130 of 2010-11 was registered under Section 7(A) read with Section 8(e) of the A.P. Prohibition Act, 1995 by the Prohibition and Excise Inspector, Parvathipuram and thereafter, the charge-sheet was also filed in C.C.No.249 of 2010. Though the mediators’ report does not contain the names but at the end, it is stated that the mediators are the very self same Srinivasa Rao, who worked in the Excise Station and at that time working as job typist with the Prohibition and Excise Inspector, Parvathipuram. The name of the mediator is no where mentioned in the mediators’ report except a signature in the end of the mediators’ report. However, the said C.C.No.249 of 2010 was also ended in acquittal of the detenu and others on the ground that the very self same mediator Srinivasa Rao, who was attending as a job typist in the Excise Station and he previously worked in the Excise Police Station and the said statement of the witnesses sufficiently proves that he is not an independent mediator as required by the provisions of law and accordingly he was acquitted. 8. The learned counsel for the petitioner submits that the mediators’ report as well as the First Information Report shows that detection of the crime was at Seemanaiduvalasa village of Jiyyammavalasa Mandal, but, whereas in the charge-sheet it is stated that the Excise Inspector and the staff and mediator detected the case at Kothavalasa village limits. In fact, the judgment also refers about the place of the crime at Kothavalasa. The learned counsel for the petitioner submits that the fact that the very self same mediator, who was working as a job typist and earlier worked in the Excise Station and the discrepancy in the mediators’ report, crime and occurrence report and the charge-sheet is evident that the case was falsely foisted for statistical purposes. In the first case the vehicles were not at all seized and in the second case while they were coming by walking, the alleged crime was said to have been detected. 9. Case No.3:- Crime No.177 of 2010-11 dated 30-8-2010 of Prohibition and Excise Station, Parvathipuram. The 3rd case was registered based on the occurrence report dated 30-8-2010 stating that when the Excise officials at about 9.30 p.m., conducting route-watch at Kothavalasa limits of Parvathipuram town, a person found coming in his left hand a packet containing 300 illicitly distilled liquor sachets, each containing 100 ml., and none of the persons present there were accepted to act as mediators and therefore, the case was registered under the occurrence report by the Excise officials themselves and the samples were drawn and sent for the chemical analysis. The charge- sheet was filed in C.C.No.250 of 2010 on the file of the Additional Judicial Magistrate of I Class, Parvathipuram and the learned Magistrate acquitted the detenu and another on the ground that the scene of offence being a busy locality and the statement of the Excise officials that they have made effort to secure a mediator but they could not secure any mediator throws a doubt that in the absence of any independent mediator no reliance can be placed on the evidence of Excise officials. 10. The learned counsel appearing for the State submits that this Court cannot go into the merits of the case and the lapses, if any, committed by the Excise officials while registering the cases under the cover of mediators’ report and filing the charge-sheet. Mere discrepancy of the place of occurrence in the mediators’ report, crime and occurrence reports from that of the charge-sheet is only a clerical mistake and therefore, it cannot be said that the cases have been registered for the statistical purposes without there being any truth or otherwise. 11. In support of her contention, she has also relied on a judgment of the apex Court in U.Vijayalakshmi v. State of Tamil Nadu[1]. One of the grounds raised before the Hon’ble Supreme Court with regard to the non-existence of the ground for detention under Section 3(1) of the said Act, but the Hon’ble Supreme Court after going through paragraph 4 of the grounds of detention found that the ground of detention is one recognised under sub-section (1) of Section 3 of the Act and therefore, it is not for the Court to probe into the correctness of the alleged facts since the Court has a limited role in the matter of examining the validity of the detention order. 12. In the instant case, we are not disputing the correctness or otherwise of the Chemical Examiner’s report and the existence of the grounds warranting to pass the detention order. But, we are of the opinion that the only limited judicial review available to the Court is about the subjective satisfaction of the determination of the detaining authority. Therefore, we have to meticulously and scrupulously look into the material placed by the requisitional authority before the detaining authority. 13. In the instant case, the requisitional authority placed 3 crime reports before the detaining authority. Admittedly, in the first two crime reports, the so-called mediator is their own ex-employee and working as a job typist at the time of registering the cases. 14. In the first case, the detenu was said to have been escaped along with the other accused and therefore, the Excise officials did not seize the scooter but they have registered the cases in the alleged presence of their own ex-employee and therefore the C.C., was ended in acquitted. 15. Insofar as the second case is concerned, though the mediators’ report of the crime states about the place of occurrence as in Crime No.130 of 2010-11, the place of occurrence was Seemanaiduvalasa village of Giyyammavalasa Mandal, but the charge-sheet and the judgment says that the place of occurrence is Kothavalasa village limits. The so-called mediator is the very self same S.Srinivasa Rao, who was a job typist and ex-employee of the Excise officials. 16. In the third case, admittedly though the Excise officials said to have detected the said case in the busy locality but they could not secure single mediator and therefore, we are of the opinion that when registration of the crime itself creates a doubt, the opinion of the Chemical Examiner is of no consequence. However, since there is a clear discrepancy about the place of occurrence, we are of the opinion that the detaining authority has not at all applied its mind and scrutinized the material placed by the requisitional authority. 17. Therefore, we are of the opinion that the detention order suffers from the lapses as above and it cannot be said that the detention order is based to the subjective satisfaction of the detaining authority. Neither the detaining authority nor the Advisory Board or the Government considered the material placed on record and in view of the discrepancy as the name of the mediator is not at all mentioned in the first two crimes, but, however, the so-called mediator is their own ex-employee working as a job-typist and the third case was registered only on the special report in the absence of any mediator and therefore, it cannot be said that the provisions of the A.P. Prohibition Act, 1995 are not sufficient to prevent the detenu from possessing the I.D. liquor. We are of the opinion that the Prohibition and Excise officials have not taken minimum care in registering the cases, which resulted in acquittal of the detenu in all the three cases registered against him. 18. In view of the aforesaid discrepancies, we set aside the impugned order of detention in Rc.No.349/2010/A4, dated 14-10-2010 passed by the 2nd respondent-Collector and District Magistrate, Vizianagaram district, Vizianagaram against the alleged detenu viz., Ragolu Sankara Rao, son of Appayya, aged 34 years, resident of Kothavalasa of Parvathipuram Municipality of Vizianagaram district and the alleged detenu is directed to be released forthwith, if not required in any other case. The writ petition is allowed accordingly. _____________________ V.ESWARAIAH, J. _____________________ V.SURI APPA RAO, J. 28th February, 2011. Ak HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE V.SURI APPA RAO Writ Petition No.32737 of 2010 (Order of the Division Bench delivered by VE, J.) 28th February, 2011. [1] A.I.R. 1994 SUPREME COURT 165