*THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE R. KANTHA RAO +WP NO. 28793/2008 % Date: 19-3-2009 Between: # Ghantasala Narasimha Rao … Petitioner and $ 1. The Chief Secretary to the Government, Government of Andhra Pradesh,Secretariat, Hyderabad and another. …. Respondents ! Counsel for the petitioner: Sri P. Sri Raghuram ^ Counsel for respondent: The Advocate General < GIST: >HEAD NOTE: ? Cases referred: 1. 2005(2) ALT 244 (FB) 2. 2007(5) ALT 475 (DB) 3. (2006) 3 SCC 321 4. 2007(3) ALT 693 5. AIR 1989 SC 1703 6. AIR 1992 SC 979=(1992) 2 SCC 177 7. (1995) 3 SCC 237 8. (1970) 1 SCC 98 9. 1989 Supp (1) SCC 322 10. Unreported judgment of this Court dt. 3-12-2007 in WP No.20407/2007 THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE R. KANTHA RAO W.P.NO.28793/2008 ORDER: (per Hon’ble Sri Justice A. Gopal Reddy) In this Writ Petition, the petitioner Ghantasala Narasimha Rao, cousin brother of the detenu–Ghantasala Venkateshwara Rao @ Venkanna S/o Venkata Swamy, has challenged the order issued by the Government in G.O.Rt.No.6336, General Administration (Law and order II) Department dated 4-11-2008 confirming the order of detention passed against his cousin brother by the Collector and District Magistrate, Krishna District, Machilipatnam dated 5-10-2008 under Section 3(1)(2) read with Section 2 (a) (b) of the A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short ‘the Act 1 of 1986’). Briefly stated the alleged activities of the detenu as set out in the grounds of detention dt. 5-10-2008 are that prior to the detention, the alleged detenu was arrested in the following cases booked by the Prohibition and Excise Officials of West Godavari District. 1. Cr.No.310/2007-2008 dt. 15-1-2008 of Prohibition and Excise Station, Eluru, West Godavari District, the alleged detenu was found to have been in possession of 20 litres of illicitly distilled liquor in four plastic covers with white polythene bag. 2. Cr.No.6/2008-2009 dt. 23-4-2008 of Prohibition and Excise Station, Mandavalli involving 10 litres of illicitly distilled liquor in a black plastic can. 3. Cr.No.18/2008-09 dt. 22-6-2008 of Prohibition and Excise Station, Mandavalli, wherein the detenu was alleged to have been in possession of 35 litres of illicitly distilled liquor in black plastic can. In all the above cases, the detenu was found to be in possession and transporting illicitly distilled liquor, which are injurious to health and unfit for human consumption, in contravention of the provisions of the A.P. Excise Act, 1968. In all the cases, contraband was seized and samples were drawn and sent for chemical examination to the Government Chemical Examiner, Prohibition and Excise, Kakinada. As per the chemical analysis reports, it was found that all the samples drawn from the seized contraband was found to be “illicitly distilled liquor, unfit for human consumption and injurious to health”. In all the above cases, the detenu was arrested and produced before the court and subsequently enlarged on bail. As the detenu was continuously involving in the bootlegging activities i.e. possession, transportation and sale of illicitly distilled liquor for money gain in Penumaka Lanka village in Mandavalli Mandal, which is unfit for human consumption, and, as it will adversely affect the pubic health, particularly, the Collector and District Magistrate, Krishna District, Machilipatnam, in exercise of the power vested in him under sub-sections (1) and (2) of Section 3 of the Act 1 of 1986, ordered for his detention until further orders in the Central Prison, Rajahmundry, by the impugned order in Rc.570/2008/A-3 dt.5-10-2008 from the date of service. The Government in their order in G.O.Rt.No.5991, General Administration (Law and Order-II) Department dated 15-10-2008, in exercise of the power under sub-section (3) of Section 3 of the Act 1 of 1986, accorded approval to the order of detention passed by the Collector. Thereafter, the Government referred the matter to the Advisory Board constituted under Section 9 of the Act 1 of 1986, which, after hearing the detenu, the investigating officers and after perusing the connected records made available to it, opined that there is sufficient cause for the detention of the detenu Ghantasala Venkateswara Rao @ Venkanna. The Government after taking into consideration the report of the Advisory Board and the material available on record, in exercise of the powers conferred under sub- section (1) of Section 12 read with section 13 of the Act 1 of 1986, 1986, through G.O.Rt.No.6336 General Administration (Law and Order II) Department dated 4-11-2008 confirmed the order of detention and directed that the detention of the detenu be continued for a maximum period of 12 months from the date of his detention i.e. 7-10-2008. Hence, this writ of habeas corpus has been filed contending that the activities of the detenu do not come within the ambit of ‘bootlegger’ as defined under section 2(b) of the Act 1 of 1986 and no offence which was approved by the competent court under legal process has been continuously committed so as to attract the definition of “bootlegger” and as such the order of detention cannot be sustained. There is no standard proof or material to show that the detenu has sold illicitly distilled liquor anywhere and it is merely on suspicion based upon the statements of detenu in the Special Reports prepared by the Excise Officials, and the detenu has no past conduct of showing any bad antecedents in order to make the present order of detention. In all the cases the detenu was enlarged on bail by the jurisdictional Magistrate and the Collector before passing the order of detention has not taken into consideration the said aspect and, therefore, there was non- application of mind by the detaining authority while passing the order of detention. The second respondent-Collector filed his counter-affidavit while explaining the reasons for passing the order of detention as detailed in the detention order and its confirmation stated that as the detenu is involved in three crimes and he was found in possession of illicitly distilled liquor and when the same was sent for chemical examination, the Chemical Examiner opined that the same is unfit for human consumption and injuries to health and taking into consideration of the law declared by this court in DODDI SHARADA V. COLLECTOR, DISTRICT MAGISTRATE, HYDERABAD[1] passed the detention order to prevent t h e detenu from further indulging in bootlegging activities as the launching of criminal prosecution against the detenu under the Excise Act has failed to curb his illegal activities since in all the cases he was released on bail. All the material relied was served on the detenu, both in English and Telugu languages, so as to make an effective representation under Art. 22(5) of the Constitution of India. In fact the detenu appeared before the Advisory Board on 30-10-2008 and after hearing him and the officials, the Advisory Board opined that there is sufficient cause for detaining him for a period of 12 months from the date of his detention. Basing upon the opinion of the Advisory Board, the Government issued G.O.Rt.6336 dt. 4-11-2008 confirmed the detention order. He placed reliance on the crimes registered against the detenue and Chemical Analysis reports for passing the detention order. Sri P. Sri Raghuram, learned counsel for the petitioner contended that in all the three crimes, the detenu was enlarged on bail by the jurisdictional Magistrate and the Collector before passing the order of detention has not taken into consideration the said aspect and, therefore there was non-application of mind by the detaining authority while passing the order of detention. He further contended that detenu was not indulged in sale of illicitly distilled liquor. In the order of detention, it is no-where mentioned that the detenu was enlarged on bail except in the ground of detention and bail orders have not been supplied for enabling the detenu to make an effective representation. On the other hand, learned Special Government Pleader representing the Advocate General contended that the detenu is an habitual bootlegger of transporting illicitly distilled liquor and the Collector after taking into consideration the chemical analyst reports in all the cases that the seized contraband is unfit for human consumption, in exercise of the power under section 3 of the Act 1 of 1986 has rightly ordered for his detention, as the activity of the detenu in transporting of the illicitly liquor will adversely affect the health of the downtrodden and underprivileged living in the area and as such no interference is warranted by this Court. She further contended that the material which was relied upon by the detaining authority has been supplied to the detenu. Since there is no specific ground urged by the detenu that bail orders have not been supplied for enabling him to make an effective representation, the petitioner cannot argue the same across the Bar. She further contended that if there is a condition imposed while enlarging him on bail, it has to be supplied, and the detenue is aware that no condition has been imposed while enlarging him on bail. In the light of the above submissions and pleadings as referred to above, the point that arises for consideration is: “Whether the detention order passed by the Detaining Authority as approved by the Government in G.O.Rt.No.5991 dated 15-10-2008 and confirmed in G.O.Rt.No.636 dated 4- 11-2008 can be sustained or not?” Before dealing with the rival submissions, it would be appropriate to notice relevant statutory provisions, which deal with the purpose and intention of the Act 1 of 1986. Sub Section (1) of Section 3 of the Act 1 of 1986 empowers the Government to make orders for detaining certain persons with a view to prevent them from acting in any manner prejudicial to the maintenance of public order. Preventive detention is an anticipatory measure and does not relate to an offence, while criminal proceedings are to punish a person for an offence committed by him under the Indian Penal Code. Sub-section (2) of Section 3 allows the detention of a person only if the appropriate detaining authority with whom the powers are delegated under sub-section (2) of Section 3 is satisfied with a view to prevent such person from carrying on any of the offensive activities enumerated therein, it is necessary to detain such person. The satisfaction of the detaining authority is not a subjective one based on his beliefs or prejudices. There must be a real likelihood of the person being able to indulge in such activities, the inference of such likelihood being drawn from objective data. Sub-Section (2) of Section 3 deals with delegation of powers by the State Government and provides that if the State Government is satisfied having regard to the circumstances prevailing in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, it is necessary to empower District Magistrate or the Commissioner of Police, as the case may be, to exercise the powers of the State Government to order detention of a person as provided by sub-section (1). Sub-section (3) of Section 3 reads as under: “When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the State Government, together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless in the meantime, it has been approved by the State Government.” Section 2(b) defines “bootlegger”, which reads as follows: “2. (b) ‘bootlegger’ means a person, who distils, 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 thereunder 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 abovementioned things by himself or through any other person, or who abets in any other manner the doing of any such thing. Section 2(a) of the Act defines the meaning of the expression “acting in any manner prejudicial to the maintenance of public order” which reads as follows. (a) “acting in any manner prejudicial to the maintenance of public order” means when a bootlegger, 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 asunder. “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.” The grounds of detention disclose that in all the three crimes registered against the detenu, the detenu was arrested and subsequently released on bail by the jurisdictional Magistrate. The file produced by the learned Special Government Pleader discloses that all the documents which were relied on by the detaining authority including the chemical analyst reports were supplied and acknowledge by the detenu. No ground has been urged in the writ petition that bail orders obtained by the detenu were not made available to the detenu, and in the process he could not make an effective representation nor it is his case that while enlarging him on bail observations made by the court or conditions imposed are favarouble to him and non mention of order of bail obtained would vitiate the detention order. Before we deal with the rival submission, we briefly refer to the judgments on which strong reliance is placed by the learned counsel for the petitioner. In KALLAY LMUTYALAMMA V. DISTRICT COLLECTOR, EAST GODAVARI[2] this court after referring to the ratio laid down by the Supreme Court in SUNILA JAIN V. UNION OF INDIA[3] held as under: “From a perusal of the impugned order, passed by the respondent No. 1, it appears that in item Nos. 1, 2, 3 and 5, bail was obtained by the detenu. Item No. 4 is the last crime registered against the detenu, in which case also he obtained bail, which fact is not in dispute. When the detaining authority had made a specific mention of the orders of bail in ail the earlier crimes, the non-mentioning of the order of bail obtained by the detenu would be, in our considered view, a vital fact, which is capable of impairing the subjective satisfaction of the detaining authority. (para 36) This court further held: “As already noticed, it is always not necessary for the detaining authority to supply the entire material and make a reference of all the bail orders either, if he really is not relying on such material for passing the impugned order. When a partial reference has been made to some material and some has been omitted, the mind of the detaining authority shall be capable of being perceived that the authority has not been relying on other material or that the authority is under clear impression that such material is ineffective or the authority is of the opinion that the case can be made out in spite of the absence of or reference of such material before him in the order of detention. Suffice it for the detaining authority to put on record the reason, in this regard.” (para 39) Another Division Bench of this court in LALITHA V. STATE OF ANDHRA PRADESH[4] after referring to nearly 25 judgments of this Court as well the Apex Court and the definition of “bootlegger” as defined under Sec. 2(b) of the Act 1 of 1986 and placing strong reliance on the observation of the Supreme Court in RASHIDMIYA V. POLICE COMMISSIONER[5] concluded that mere fact that three crimes had been registered by itself may not be sufficient but further satisfaction or further material to satisfy the condition ". . . from acting in any manner prejudicial to the maintenance of public order" to be satisfied. The term or expression 'public order' may also be understood in the backdrop of the Detention legislations and further the nature and the gravity of the offences which may have a close nexus to this concept also may have to be weighed by the detaining authority while making an order of detention. After referring to the relevancy of ground of maintenance of public order while making an order of detention which had been dealt with by the Apex Court and after distinguishing the Full Bench Judgment of this court in DODDI SHARADA (1 supra) it was observed that the decision of the Supreme Court in RASHIDMIYA (5 supra) has not been cited before the Full Bench and while repelling the contention of the State set-aside the detention order on the ground that the petitioner having been released on bail and charge sheets having been filed, these crucial aspects were not considered and the Sponsoring Authority had not placed the copies of the same along with the grounds of detention by virtue of which prejudice had been caused to the detenu in relation to making effective representation. While distinguishing the Full Bench judgment of this court in DODDI SHARADA (1 supra), learned Division Bench of this court in LALITHA (4 supra) has not considered the observation of the Supreme Court in HARPREET KAUR V. STATE OF MAHARASHTRA[6] where identical provision of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981 similar to the Act 1 of 1986 held that “Public Order” or “Law and Order” are two different and distinct concepts and there is abundance of authority of this Court drawing a clear distinction between the two, with a view to determining the validity or otherwise of the order of detention, it would be necessary to notice the difference between the two concepts. After referring to the various judgments rendered by it, the Supreme Court further held as under: “The explanation to S. 2(a) (supra) brings into effect a legal fiction as to the adverse effect on 'public order'. It provides that if any of the activities of a person referred to in clauses (i)-(iii) of Section 2(a) directly or indirectly causes or is 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 a wide-spread danger to life or public health, then public order shall be deemed to have been adversely affected. Thus, it is the fall out of the activity of the "bootlegger" which determines whether public order' has been affected within the meaning of this deeming provision or not. This legislative intent has to be kept in view while dealing with detentions under the Act. The conclusion reached by the learned Division Bench in LALITHA (4 supra) that unless the alleged activities result in grave or wide-spread danger to life or public health, the order of detention cannot be sustained is contrary to the law laid down by the Supreme Court in HARPREET KAUR (6 supra). Further the judgment of the Supreme Court referred, namely, MUKTAKMIYA JABBARMIYA SHAIKH V. M.M. MEHTA[7] for arriving such conclusion is not for the bootlegging activities. MUKTAKMIYA JABBARMIYA SHAIKH case is not on the point, where order of detention was passed branding the detenu as a dangerous person under Gujarat Prevention of Anti-Social Activities Act, 1985. In the said case ie., MUKTAKMIYA JABBARMIYA SHAIKH, the Supreme Court considered the definition of “dangerous person” as defined in Sec.2 ( c ) of the said Act and drawn the distinction between “law and order” and “public order” in the following lines: “It is the degree of disturbance and its impact upon the even tempo of life of the society or the people of a locality which determines whether the disturbance caused by such activity amounts only to a breach of "law and order" or it amounts to "public order". If the activity falls within the category of disturbance of "public order" then it becomes essential to treat such a criminal and deal with him differently than an ordinary criminal under the law as his activities would fall beyond the frontiers of law and order, disturbing the even tempo of life of the community of the specified locality.” The Supreme Court in MUKTAKMIYA JABBARMIYA SHAIKH (7 supra) after referring to its earlier judgment in ARUN GHOSH V. STATE OF W.B[8]. wherein Hidayatullah, C.J. (as he then was) dealt with the distinction between the law and order and public order and also to the judgment of the Supreme Court in PIYUSH KANTILAL MEHTA V. COMMISSIONER OF POLICE [9] held that “if any act of a person creates panic or fear in the minds of the members of the public upsetting the even tempo of life of the community, such act must be said to have a direct bearing on the question of maintenance of public order. The commission of an offence will not necessarily come within the purview of public order which can be dealt with under ordinary general law of the land”. Since the criminal activities as alleged against the detenu are under the Indian Penal Code and under Arms Act, detention order was quashed, which is not applicable to the detention order passed against the persons for his bootlegging activities. Once the explanation to S.2(a) of the Act 1 of 1986 brings into effect a legal fiction as to the adverse effect on “public order”, if any of the activities of a person referred to in clause (a) 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, then public order shall be deemed to have been adversely affected as held i n HARPREET KAUR’s case (6 supra). The conclusion reached by the Division Bench in LALITHA (4 supra) is not a binding precedent in view of the law declared by the Supreme Court in HARPREET KAUR (6 supra). This court in G.GOVIND RAJU V. THE COLLECTOR & DISTRICT MAGISTATE, CHITTOOR DISTRICT[10] held that the fact that the Court enlarged the detenu on bail has nothing to do with the power to be exercised by the authority under the provisions of the Act 1 of 1986. The learned counsel for the petitioner has not brought to our notice any provision of the Act 1 of 1986, which mandates the detaining authority that while passing an order of detention; it has to take into consideration the fact that the detenu was enlarged on bail by the Court. The power to be exercised by the Court in granting a regular bail in a criminal case is independent of the power to be exercised by the designated detaining authority under the provisions of Act, 1986. In the absence of any such provision under the Act empowering the detaining authority to take into consideration the factum of detenu being enlarged on bail by the Court while passing an order of detention, it cannot be said that the action of the detaining authority in passing the order of detention is vitiated on account of non- application of mind. The grounds of detention, as referred to above, clearly discloses that detenu was habituated in commission of crimes and is accustomed to commit crimes of transporting and selling