HON’BLE SRI JUSTICE V. ESWARAIAH AND HON’BLE SRI JUSTICE NOUSHAD ALI + W.P.No.23135 of 2010 % 25-03-2011 # P. Durga Rao ..PETITIONER VS. $ 1. State of Andhra Pradesh, rep. by its Principal Secretary, General Administrative Department (Law and Order.II), Secretariat, Hyderabad, and another. ..RESPONDENTS ! Counsel For the Petitioner: Sri K. Sarvabhouma Rao ^ Counsel For Respondent: Assistant Government Pleader < Gist : Ø Head Note : ? CITATIONS : 1. (2004) 7 SCC 257 2. (2006) 6 SCC 272 3. (2002) 7 SCC 691 4. AIR 1983 SC 181 5. AIR 1982 SC 710 6. (2004) 5 SCC 573 THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE NOUSHAD ALI W.P.No.23135 of 2010 BETWEEN: P. Durga Rao …. PETITIONER And 1. State of Andhra Pradesh, rep. by its Principal Secretary, General Administrative Department (Law and Order.II), Secretariat, Hyderabad, and another. …. RESPONDENTS Counsel for petitioners: Sri K. Sarvabhouma Rao Counsel for respondents: Assistant Government Pleader The Court made the following order: ORDER : (per Hon’ble Sri Justice Noushad Ali) 1. The petitioner is the son of the detenue Smt. Polisetti Lakshmi, wife of late Kondaiah, resident of Ayyappanagar, Rajahmundry, East Godavari District. He has filed this Writ Petition seeking issuance of a Writ of Habeaus Corpus directing to set the detenue at liberty by setting aside the order of detention made by the 2nd Respondent-District Collector-cum-District Magistrate, East Godavari District in File Rc.No.C1(M)/496/2010, dated 22.06.2010, as confirmed by the State Government by orders in G.O.Rt.No.4063, General Administration (Law and Order.II) Department, dated 13.08.2010. 2. Activities alleged against the detenu as set out in the order of detention, dated 22.06.2010 are: The detenu was involved in committing the offences of possession, transport, sale of illicitly distilled liquor in contravention of Section 8 (3) read with Section 7-A of the A.P. Prohibition (Amendment) Act, 1997 and also abating the commission of the said activities; that the said activities are directly causing and calculated to cause widespread danger to public health and feeling of insecurity in the locality, Ayyappanagar; that therefore the detenue is a bootlegger within the meaning of Section 2 (b) of the Andhra Pradesh Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short ‘Act 1 of 1986). 3. Grounds of detention as set out, are briefly stated as follows: (i) On 01.09.2009 at about 4 PM the Prohibition and Excise Sub- Inspector, Rajahmundry North, along with the staff, arrested the detenue while in possession of 105 litres of illicitly distilled liquor (I.D. liquor) in front of her house in Ayyappanagar. The contraband was seized under a mediators report and samples of liquor were sent for chemical analysis. A case was registered in crime No.461/09-10, dated 01.09.2009 of Prohibition and Excise Station, Rajahmundry North, under Section 8 (e) read with Section 7-A of the A.P. Prohibition (Amendment) Act, 1997. The report C.E.No.1288/2009, dated 26.10.2009 revealed that the liquor was unfit for human consumption and injurious to health as it contained fusel oil and acids etc. (ii) On 27.04.2010 at about 6.30 AM the detenue was arrested while in possession of 10 liters of I.D. liquor near Sairam Milk Product Company, Ayyappanagar. A case was registered in Crime No.77/10- 11, dated 27.04.2010 of Prohibition and Excise Station, Rajahmundry North under Section 8(e) read with Section 7-A of the A.P. Prohibition (Amendment) Act, 1997. The chemical analysis report C.E.No.449/2010, dated 20.05.2010 revealed that the liquor was unfit for human consumption and injurious to health. (iii) On 06.05.2010 at about 9 AM the detenue was again found to be in possession of 20 liters of I.D. liquor at the same place and the detenue was arrested and a crime No.119/10-11, dated 06.05.2010 was registered in the same station for the offences under Section 8(e) read with Section 7-A of the A.P. Prohibition (Amendment) Act, 1997. The chemical analysis report C.E.No.503/2010, dated 01.06.2010 revealed that it was unfit for human consumption and injurious to health. Charge sheets were filed against the detenue in all the aforesaid cases. 4. Apart from the above activities, the detenue was earlier detained under Preventive Detention Act, 2007 and as many as six crimes were registered during 13.04.2009 to 05.02.2010. 5. On the basis of the aforementioned grounds and the earlier detention and the material connected therewith as well as the medical opinion of Dr. B.Balaraju, Chief Physician, Professor and Head of the Department of Medicine, Osmania Medical College and General Hospital, Hyderabad, the 2nd Respondent came to the conclusion that the activities of the detenue were affecting the community, creating a sense of insecurity and danger to life and health of public in the locality. The 2nd Respondent thus considering the grounds and the frequent involvement of the detenue in dealing with illicit liquor, passed orders of detention, dated 22.06.2010. The said order was approved by the State Government vide orders in G.O.Rt.No.3184, General Administration (Law and Order.II) Department, dated 28.06.2010. The Advisory Board constituted under Section 9 of the Act reviewed the case after affording opportunity to the detenue and submitted a report, dated 12.07.2010 justifying the detention. On a consideration of the same, the State Government in exercise of its powers under Sub-Section (1) of Section 12 read with Section 13 (Act 1 of 1986) issued orders in G.O. Rt. No.3561, General Administration (Law & Order-II) Department, dated 19.07.2010 confirming the detention directing that the detenue be continued under detention for a period of 12 months from the date of detention i.e., 22.06.2010. An application seeking review of the said order was also dismissed vide G.O.Rt.No.4063, dated 13.08.2010. The petitioner has thus filed this writ petition. 6. Heard Sri K. Sarvabhouma Rao, learned counsel appearing on behalf of the petitioner and learned Assistant Government Pleader for the respondents. 7. The learned counsel for the petitioner raised the following contentions. 1. The activities alleged against the detenue do not fall within the ambit of Section 2(b) or Section 3(1) of the Act 1 of 1986. 2. Power of the State Government to fix the period of detention although discretionary, should be exercised in a judicious manner, but it failed in discharging it by ordering detention for the maximum period of twelve months without assigning reasons. Point No.1:- 8. In order to appreciate the contention whether the activities alleged against the detenue fall within the ambit of Section 2(b) and 3(1) of the Act 1 of 1986, it is necessary to ascertain the meaning of “boot-legger” as defined in Section 2(b) of Act 1 of 1986, which reads as under. “Boot-legger” means a person, who distills, 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 there under, 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 above mentioned things by himself or through any other person, or who abets in any other manner the doing of any such thing.” 9. A plain reading of the above definition shows that a person who indulges in the activities, inter alia, of transporting, selling or distributing an intoxicant including liquor in violation of the provisions of A.P. Excise Act, 1968 and the rules, notifications made there under or in contravention of any other law for the time being in force is a “boot-legger”. 10. A.P. Prohibition Act, 1995 (Act No.17 of 1995) has been enacted in public interest to bring about the prohibition of manufacture, sale and consumption of arrack and regulation of manufacture, sale and consumption of other intoxicating liquors in the State of Andhra Pradesh. Section 7 of the said Act prohibits selling, buying, being in possession and consumption of liquor otherwise than in accordance with the provisions of the Act, or as the case may be. Section 7-A prohibits the production, manufacture, storage, possession, collection, purchase, sale and transport of arrack. Section 8 provides for punishment for violation of the provisions of Section 7 and 7-A. Clause (e) of Section 8 provides punishment by imprisonment for contravention of the provisions of Section 7-A. 11. In view of the absolute prohibition envisaged in Section 7- A, it is not permissible to possess, transport or sell illicitly distilled liquor. In the instant case, the detenue was found in possession of I.D. liquor and was arrested for offences of transportation, possession and sale on three occasions i.e., on 01.09.2009, 27.04.2010 and 06.05.2010. Crime was, therefore, registered against the detenue under Section 8 (e) read with Section 7-A of the Act No.17 of 1995. It is therefore evident that the detenue is a boot-legger within the meaning of Section 2 (b) (Act 1 of 1986). 12. It is true that a person cannot be detained merely because he is a boot-legger, unless he is acting in any manner prejudicial to the maintenance of the public order as provided in Section 3 of Act No.1 of 1986. 13. “Acting in any manner prejudicial to the maintenance of public order” is defined in Section 2 (a) of Act 1 of 1986, which is as follows: “2. Definitions:-- In this Act, unless the context otherwise require :-- (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 affected 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 public or any section thereof or a grave of widespread danger to life or public health;” 14. Thus, if any activity is causing or calculated to cause any harm, danger to the general public or cause a grave widespread danger to life or public health shall be deemed to affect public order. The grounds of detention in the instant case would disclose that the contraband seized from the detenue was found to contain organic acids, higher alcohols, aldehydes, furfural and other impunities, which are injurious to public health and unfit for human consumption. The contraband was manufactured by adopting crude and unscientific methods of using raw-material, such as black jaggery, aluminum, potassium sulphate which cause chronic diseases affecting public health and posing danger to life. More and more such activities would lead to wide spread danger to life and public health. Thus, the activities indulged by the detenue in dealing with the contraband unhesitatingly fall within the meaning of Section 2 (b) and scope of Section 3 (1) of Act 1 of 1986. Point No.2 15. It is the contention of the learned counsel for the petitioner that Section 13 vests discretionary power in the Government to fix the period of detention and hence such power should be exercised in a judicious manner, but the State Government failed in its duty in exercising its discretion and fixed the maximum period. The contention on behalf of the State, however, is that there is no discretion vested in the authority in the matter of fixing the period of detention and wherever detention is ordered, it should be for the maximum period of 12 months. 16. Several statutes provide for penalties prescribing minimum/maximum sentences/fines. Wherever such minimum and maximum sentences are prescribed, it is permissible to order sentence for the minimum or the maximum period as well. In all such cases it is not an invariable rule to order only the minimum sentence or the maximum sentence as the case may be. It can also be more than the minimum and less than the maximum period. Awarding of sentence depends on the facts and circumstances and gravity of a case. 17. It is therefore necessary to examine Section 13 to ascertain whether it vests any discretion. Section 13:- Maximum period of detention – The maximum period for which any person may be detained, in pursuance of any detention order made under this Act which has been confirmed under Section 12 shall be twelve months from the date of detention. 18. The aforesaid provision has prescribed the maximum period but has not prescribed any minimum period of detention. By omitting to prescribe the minimum period, the intention of legislative is clear that it desired to provide maximum discretion to the authority in fixing the period of detention. 19. Therefore even though it is competent to order detention for a maximum period of 12 months, maximum detention in each and every case need not be ordered unmindful of the facts of the case. It is true that there is no hard and fast rule in this regard. In the absence of any specific guidelines for exercising discretionary power, it should be exercised in a fair, judicious, just and reasonable manner. Failure to do so would give room for arbitrary exercise of power. There may be variety of cases and circumstances which may not be identical to each other. All such cases cannot be treated alike. In a given case, the activities alleged may be very grave warranting the maximum detention, whereas in another case the alleged activities though justify detention, may not warrant detention for the maximum period. 20. In this regard it is useful to refer to the views expressed by the Apex Court. In Deo Narain Mandal v. State of U.P.[1] the Apex Court while considering conviction and sentence of the appellant therein, who was found guilty of the offence punishable under Sections 365/511 r/w Section 149 IPC considering the question in regard to reduction of sentence, observed as follows. “In criminal cases awarding of sentence is not a mere formality. Where the statute has given the court a choice of sentence with maximum and minimum limit presented then an element of discretion is vested with the court. This discretion can not be exercised arbitrarily or whimsically. It will have to be exercised taking into consideration the gravity of offence, the manner in which it is committed, the age, the sex of the accused, in other words the sentence to be awarded will have to be considered in the background of the fact of each case and the court while doing so should bear in mind the principle of proportionality. The sentence awarded should be neither excessively harsh nor ridiculously low.” 21. In Bhupinder Singh and others v. Jarnail Singh and another[2] the Apex Court while considering the powers of the Magistrate for detention of the accused under Section 167 Cr.PC., referring to Section 304-B IPC relating to dowry deaths, which provides for punishment with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life, observed as follows. “Where minimum and maximum sentences are prescribed both are imposable depending on the facts of the cases. It is for the Court, after recording conviction, to impose appropriate sentence. It cannot, therefore, be accepted that only the minimum sentence is imposable and not the maximum sentence. Merely because minimum sentence is provided that does not mean that the sentence imposable is only the minimum sentence…….” 22. In Ruli Ram v. State of Haryana[3], the Apex Court while considering the question of sentence for the offences punishable under Section 304 Part-II IPC, observed as follows. “….. the punishment has to be always proportionate to the crime. Punishment serves a purpose inasmuch as it acts as a deterrent for those who have the propensity to take the law into their own hands. The principle of proportion between crime and punishment is a principle of just deserts that serves as the foundation of every criminal sentence that is justifiable. As a principle of criminal justice it is hardly less familiar or less important than the principle than the principle that only the guilty ought to be punished. Indeed, the requirement that punishment not to be disproportionately great, which is a corollary of just deserts, is dictated by the same principle that does not allow punishment of the innocent, for any punishment in excess of what is deserved for the criminal conduct is punishment without guilt.” It is further observed that – “The Criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice, sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the traffic results of his crime. Inevitably these considerations cause a departure from just deserts as the basis of punishment and create cases of apparent injustice that are serious and widespread.” 23. The aforesaid judgments have clearly laid down that wherever minimum and maximum sentences are prescribed, there is an element of discretion and that it should be exercised taking into consideration the proportionality of the crime committed and various other factors including the age, sex, etc. 24. The learned Government Pleader would however seek to contend that as Section 13 has not prescribed the minimum period, it leaves no discretion to the authority except ordering detention for the maximum period. Reliance is placed on Suresh Bhojraj Chelani v. State of Maharashtra[4]. In our opinion, this judgment is not relevant to the issue under consideration. In that case the Apex Court was dealing with an order passed by the Government which did not mention the period of detention. Considering the contention that if an order does not mention the period it would vitiate the order itself, it was held that when no period is mentioned in an order, the implication is that the detention is for the maximum period of one year. The Apex Court in the said case was not dealing with the question whether there is any discretion provided by the Act. 25. On the other hand, in A.K. Roy v. Union of India[5] a Constitution Bench of the Apex Court while considering the validity of the National Security Act rejected the argument that the absence of provision requiring the detaining authority to provide for maximum period of detention was illegal, observed as follows. “Dr. Ghatate's objection against Section 13 is that it provides for a uniform period of detention of 12 months in all cases, regardless of the nature and seriousness of the grounds on the basis of which the order of detention is passed. There is no substance in this grievance because, any law of preventive detention has to provide for the maximum period of detention, just as any punitive law like the Penal Code has to provide for the maximum sentence which can be imposed for any offence. We should have thought that it would have been wrong to fix a minimum period of detention, regardless of the nature and seriousness of the grounds of detention. The fact that a person can be detained for the maximum period of 12 months does not place upon the detaining authority the obligation to direct that he shall be detained for the maximum period. The detaining authority can always exercise its discretion regarding the length of the period of detention. It must also be mentioned that, under the proviso to Section 13, the appropriate Government has the power to revoke or modify the order of detention at any earlier point of time.” 26. A Division Bench of this Court of which one of us (V. Eswaraiah, J) is a member, in Sunkara Lakshumma v. Government of Andhra Pradesh, in W.P.No.21099 of 2010 dated 8.12.2010 while dealing with the case of detention observed thus – “The maximum period specified under Section 13 of the Act for which any person may be detained in pursuance of the detention order would be 12 months from the date of detention. Therefore, we are of the view that the Government is empowered to detain the detenu for a maximum period of 12 months. It does not mean that the State has no power to detain for less than the maximum period of 12 months.” 27. From the aforesaid decisions, it is manifest that Section 13 provides discretion to the Government in the matter of fixing the detention period. The contention on behalf of the State that it is mandatory to detain for the maximum period of 12 months is therefore liable to be rejected. 28. We would now examine whether in the instant case, the State Government has exercised its discretion when it has ordered detention for the maximum period of 12 months. The order is as follows : “WHEREAS the Collector and District Magistrate, East Godavari District, made an order of detention vide reference first read above under Section-3(2) read with 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 (Act No.1 of 1986) in respect of Smt.Polisetti Laxmi, W/o Kondaiah (Late), aged 38 years, R/o Ayyappa Nagar, Thadi Thota, Rajahmundry Town, Godavari District, with a view to prevent her from further indulging in a manner prejudicial to the maintenance of public order; 2. WHEREAS the Government accorded approval to the said detention order under sub-section (3) of section-3 of the Act, vide Government Orders second read above; 3. WHEREAS the Advisory Board constituted under Section-9 of the said Act, consisting of Sri Justice T.L.N.Redy (Retired), Chairman and two other Members, reviewed the case on 12- 07-2010 and after having heard the detenu, her son and her relation and the investigating officers and also after perusing the connected records, and the written representation submitted by her son to the Board, and reported vide reference third read above that in its opinion “there is sufficient cause for the detention of the detenu, Smt.Polisetti Laxmi, W/o Kondaiah (late). 4. NOW, THEREFORE, after due consideration of the report of the Advisory Board and the material available on record, Government, in exercise of the powers conferred under sub- section (1) of Section-12 read with Section-13 of the said Act, hereby confirm the order of detention and direct that the detention of Smt.Polisetti Laxmi, W/o Kondaiah (late), R/o Ayyappa Nagar, Thadi Thota, Rajahmundry Town, East Godavari District, be continued for a period of 12 months from the date of her detention, i.e., 22-06-2010.” 29. A perusal of the aforesaid order shows that the Government has not addressed the question as to what weighed with it to order the maximum detention. No reasons have been assigned why the petitioner deserved detention for 12 months. From the law laid down, as noticed above, an authority is vested with discretionary powers to fix the length of detention and such power should be exercised in a fair and judicious manner. Assigning reasons for a decision is a facet of exercise of discretionary power and an authority should speak and disclose its mind only through the order. Further, reasons for an order is an indispensable right of an affected person. 30. In State of Rajasthan v. Sohan Lal [6] the Supreme Court while dealing with the question whether the High Court was required to