THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.26746 OF 2009 O R D E R (Per the Hon’ble Sri Justice G.Chandraiah) Heard the counsel for the petitioner and the learned Advocate General for the respondents. 2. Aggrieved by the preventive detention order passed by the 1st respondent – The Collector and District Magistrate, East Godavari District at Kakinada in RC.No.201/A4/2009 dated 9.10.2009, in ordering detention of the detenu under 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, (for short ‘the Act;)the wife of the detenu filed the present writ petition. 3. In the affidavit filed in support of the writ petition, it is stated that the 1st respondent served a copy of grounds in Rc.No.201/A4/2009 dated 9.10.2009 on her husband alleging that he is a ‘bootlegger’ within the meaning of Section 2(b) of the Act for habitually indulging in clandestine possession, transportation and sale/distribution of illicit distilled liquor in contravention of Sections 7A read with Section 8( C ) of A.P. Prohibition (Amendment) Act, 1997 and thereby acting in a manner prejudicial to the maintenance of public order, and that the activities of her husband are directly causing and calculated to cause wide spread danger to public order, public health and feeling of insecurity in the locality namely Hukumpeta village of Rajahmundry rural and surrounding villages as evident from the record placed before the 1st respondent in crime numbers 327/2009-10 dated 24.10.2009 and 371/09-10 dated 6.9.2009 of Rajahmundry-South, Prohibition and Excise Station etc., and thus the activities of the bootlegger are effecting and also likely to affect adversely the maintenance of public order in the area named Hukumpeta village of Rajahundry rural. The 1st respondent having satisfied with the above material placed before him, passed the impugned order in exercise of the powers under Section 3(1) and (2) of the Act ordering him to keep in central prison. Now the case of the petitioner is that for all the cases mentioned in the order, criminal proceedings are pending before the court and in all the cases, no mediator’s report is available evidencing the seizure of the illicit distilled liquor from the possession of her husband, which was sent for the report of the analyst. It is stated that the sample alleged to have been seized was analyzed and opined as unfit for human consumption and injurious to health, as it contained fusel oil and acids etc. The case of the petitioner is that as the alleged seizure is not proper and the analyst report may not stand for scrutiny and further in all the cases, her husband was released on bail and no petition for recalling the bail was filed by the respondents. Further in the report of the analyst, no permissible limit of fusel oil and the other components was mentioned and the exceeding limit was also mentioned. Therefore, mere presence of fusel oil, cannot be said to be injurious to health. Therefore, the case of the petitioner is that the allegations leveled against her husband are not true and they are leveled for the purpose of maintainability of the action of the 1st respondent. It is also stated inter alia that her husband is eking out livelihood by cooli work and he is also suffering for different ailments and their family is dependent on him and because of his illegal detention, they are put to hardship. It is also stated that till now no decision of the advisory board with regard to reviewing the action of the 1st respondent in keeping the detenu and its opinion as contemplated under Section 10 of the Act, is communicated either to the detenu or to his address. It is further stated that the allegations leveled against the detenu does not constitute, as incidents for feeling insecurity among the general public or any section thereof or grave or wide spread danger to life or public health and the situation cannot be said to travel beyond the clutches of normal statutory procedure as contained in the A.P. Prohibition Act. With these averments, the impugned order of detention was sought to be set aside. 4. The 1st respondent – Collector and the District Magistrate, East Godavari District, Kakinada filed counter affidavit and stated that he passed the impugned order as the detenu is continuously indulging in the offences of possession, transport, sale/distribution of illicit distilled liquor in contravention of Section 7-A read with Section 8(e) of A.P. Prohibition (Amendment) Act, 1997 in the locality named Hukumpeta village of Rajahmundry rural and the surrounding villages, in the manner prejudicial to the maintenance of public order and tranquility, thereby causing danger to the public health. Before passing the order of detention, he has perused the records placed before him by the Sponsoring Authority i.e. Prohibition and Excise Superintendent, Rajahmundry and after satisfying himself that the activities of the detenu fall within the definition of ‘Bootlegger’ as defined under Section 2(b) of Act 1 of 1986, passed the order of detention against the detenu. The detenu has been continuously indulging in bootlegging activities, despite registration of crimes against him, and as normal penal laws failed to curb his illegal activities, it necessitated him to pass the order of detention against the detenu on justifiable grounds on 9.10.2009. Consequent to passing the order of detention, the detenu was taken into custody on 10.10.2009 and lodged at Central Prison, Rajahmundry, East Godavari District. At the time of taking the detenu into custody, the order of detention, grounds of detention and all the material relied upon, was served on the detenu, both in English and Telugu languages, so as to enable him to make an effective representation under Article 22(5) of the Constitution of India, and the same was acknowledged by the detenu. The detenu was also duly informed that he has a right to make representation against the order of detention to the Detaining Authority, the Government of Andhra Pradesh and the Advisory Board in compliance of the constitutional/statutory mandate. In the counter, the 1st respondent referred to the details in Crime Nos.327/09-10 dated 24.7.2009, 371/09-10 dated 6.8.2009 and 829/09 dated 6.9.2009, registered against the petitioner for the offences punishable under the provisions of A.P. Prohibition (Amendment) Act, 1997 and the consequent numbering of criminal cases on the file of VII Additional Judicial First Class Magistrate, Rajahmundry and filing of the charge sheets. It is further stated that the order of detention, grounds of detention and the material relied upon were forwarded to the Government for its approval. The Government in exercise of the powers under sub section (3) of Section 3 of the Act, accorded approval to the order of detention passed by the detaining authority vide G.O.Rt/No.5014 General Administration (Law and Order.II) Department dated 16.10.2009 within the prescribed period of 12 days and the same was duly served on the detenu through the Superintendent, Central Prison, Rajahmundry. Thereafter, the Government referred the matter to the Advisory Board constituted under Section 9 of the Act on 20.10.2009 within the prescribed period of three weeks as per Section 10 of Act 1 of 1986 to review the case of the detenu. The Advisory Board met on 27.10.2009 within the prescribed period of seven weeks as per Section 11(1) of Act 1 of 1986 to review the case of the detenu. After hearing the detenu and the officials, and after going through the connected records, the Advisory Board opined that there is sufficient cause for the detention of the detenu . 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 Act 1 of 1986, issued G.O.Rt.No.5207, General Administration (Law and Order.II) Department dated 30.10.2009 confirming 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. 10.10.2009. It is further stated that in all the three crimes in Crime Nos.327, 371 and 829 the Excise Officials arrested the detenu red-handedly, while he was in possession and transportation of sizeable quantity of illicit distilled liquor, which is injurious to health and unfit for human consumption, in contravention of the provisions of the A.P. Excise Act, 1968. The Excise Officials seized the contraband from the possession of the detenu, under the cover of special reports drafted on the spot, as per the provisions of Section 100(4) of Cr.P.C. read with Section 23 of A.P. Prohibition Act, and drawn samples and sent for chemical analysis to the Government Chemical Examiner of Prohibition and Excise, Regional Prohibition and Excise Laboratory, Kakinada. As per the Chemical Analyst reports, it was found that all the samples drawn from the sized contraband, were found to be illicitly distilled liquor, unfit for human consumption and injurious to health as it contained fusel oil and acids etc. Therefore, the contention of the petitioner that the alleged seizure is not proper seizure, is without any merit and unfounded. In the further counter affidavit it is stated that there is no prohibition either under the provisions of Code of Criminal Procedure or Excise Laws, to apprehend a person or to seize the contraband under the cover of Special Report. Section 100(4) of Code of Criminal Procedure read with Section 23 of the A.P. Prohibition Act, empowers the Excise Officials to search the premises and seize the property. Section 100(4) does not make distinction between the searches made by the Investigating Officer on secret information or otherwise and the searches made in pursuance of a disclosure statement made by the accused. The contents of FIR clearly disclose that as no one came forward to act as mediators, the detenu was taken into custody under the cover of Special Report and crimes were registered against him. As such, it cannot be said that the seizure made by the Excise Officials, is not in accordance with the strict compliance of law. With these averments inter alia and relying on the judgment of a Full Bench of this court in DODDI SHARADA v. COLLECTOR AND DISTRICT MAGISTRATE[1], the writ petition was sought to be dismissed. 5. The learned counsel appearing for the petitioner reiterating the averments made in the writ affidavit submitted that in all the three cases in which the husband of the petitioner is alleged to have been in possession of illicit distilled liquor, criminal proceedings under the A.P. Prohibition Act are pending before the competent criminal court and the petitioner was released on bail and in no case, the respondent filed petitions for canceling the bail and further, the seizure also is not proper. He contended that merely because there is close proximity of offences, that cannot be the ground to pass detention orders invoking the provisions of the Act. In support of this contention, he relied on the judgment of a learned single Judge of this court reported in LALITHA v. STATE OF A.P. AND ANOTHER[2]. He further contended that in the report of the chemical examiner, it is only stated that the illicitly distilled liquor is unfit for human consumption and injuries to health and he did not specify the permissible limits of fusel oil and other components therein and he has also not stated the permissible limits. He stated that mere presence of fusel oil in illicit distilled liquor is not injurious to heath and that the authorities must mention permissible percentage limits of fusel oil and other components. Therefore, the chemical examiner’s report cannot be relied upon. In support of this contention, he relied on the judgment of the Division Bench of this court in CHALLA VENKATESWARA RAO v. COLLECTOR AND DISTRICT MAGISTRATE, KRISHNA DIST.[3] With these averments, he sought to set aside the impugned order of detention. 6. On the other hand the learned Advocate General while referring to the averments made in the counter affidavit further submitted that as the 1st respondent was satisfied based on the material evidence that the husband of the petitioner was acting prejudicial to the maintenance of the public order and in order to prevent him from acting further, the impugned order of detention is passed. He stated that under explanation to Section 2(a) public order would also mean a danger to public health and since as per the chemical examiner’s report the sample seized from the possession of the detenu was found to be unfit for human consumption and injuries to health. Therefore, as the detenu was found to be deliberately violating the provisions of the Excise laws, which is likely to cause wide spread danger to public health and create a feeling of insecurity among the general public and that if it is allowed, there is every possibility of danger to the life or public health who consumes the illicit distilled liquor and the detaining authority after recording his subjective satisfaction, passed the impugned order. Relying on the Full Bench judgment of this court referred to 1 supra, he stated that the chemical examiner need not mention the percentage of different constitutes of the sample and he has to only mention whether the liquor is unfit for human consumption and endanger the public health. In the present case as the chemical examiner and also a Physician offered his remakes about the ill effects caused by consumption of seized illicit distilled liquor. Therefore, the detaining authority after satisfying himself, based on the material available on record, passed the impugned order of detention and there are no grounds to interfere with the same. With these averments, he sought to dismiss the writ petition. 7. The allegation on the detenu is that he is habitually indulging in clandestine business by possession, transportation and sale/distribution of illicit distilled liquor, which is unfit for human consumption and injurious to health due to presence of acids and thereby creating situation, which is causing feeling of insecurity among the public and widespread danger to public health and have thus been disturbing public order, which constitution offence under Section 2(b) of the Act. In the present case there is no dispute with regard to following of the principles of natural justice and the provisions under Article 22(5) of the Constitution of India. 8. From the material on record, it could be seen that on three occasions within a short period of time i.e. on 24.7.2009, 6.8.2009 and 6.9.2009 the petitioner was alleged to have been found with illegal possession of illicit distilled liquor ranging from 5 to 20 liters and cases were registered and sent to the court and the petitioner was released on bail and the charge sheets were also filed and the said cases will be decided based on the material available on record. Similarly the question whether the seizure under special report is valid or not and whether the prosecution will be able to prove its case, will be considered during the trial of the criminal cases and the same cannot be gone into at this stage. 9. However, the fact remains that the petitioner was involved in three crimes of similar nature in a short span of time i.e., indulging in bootlegging activities of purchase, transportation and sale/distribution of illicitly distilled liquor in the Hukkumpeta village, Rajahmundry Rural and the surroundings, violating the provisions of A.P. Prohibition Act, and Excise Act in spite of ban on sale of Arrack since 1.10.1993. In all the three cases, samples were drawn for chemical analysis. The Chemical Examiner, Kakinada who analyzed the sample, gave report opinion that it is illicit distilled liquor unfit for human consumption and injurious to health, as it contained fusel oil and acids etc. All these allegations were stated in the grounds of detention, served on the detenu. In the grounds of detention it is also stated 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 remakes about the ill-effects of consumption of illicit distilled liquor and opined that it causes liver diseases and responsible for cardiac problem like Bradycardia and sudden death, mental irritation, stupor coma, convulsion and renal failure. Therefore, the consumption of illicit distilled liquor is found to be harmful, injurious to public health and hence unfit for human consumption. As already noted above, the petitioner was found to have involved in the three cases of similar nature in a short span of time and if he is not prevented, we are of the considered view, that it will have impact on public health and order. Further in the grounds of detention it is stated that there are several oral and written complaints received against the detenu, about his illegal activities, which are causing wide spread danger to public health and creating a feeling of insecurity among the general public of that locality and that if his activities are allowed unchecked, there is every danger of its leading to liquor tragedies, costing many lives on the poor in Hukumpeta village, Rajahmundry rural and the surroundings and thereby effects the public order. In view of these circumstances, though as per the judgment of a learned single Judge of this court in the decision cited 2 supra, close proximity of offences cannot be taken as ground to pass detention order, in view of the averments made in the grounds of the detention that there are several complaints apart from the three cases and also having regard to the reports submitted by the chemical examiner in the said three cases, we are of the view that the judgment relied on by the counsel for the petitioner in this regard, cannot be relied upon. 10. At this juncture it is necessary to note relevant definitions under Section 2 of the Act 1 of 1986 as under: 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 indirecty, in 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: (b) “boot-legger” means a person, who distills manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxicating during 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, vessel or other conveyance or any receiptacle 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; 11. From a reading of the above definition, in the present set of facts and circumstances, the detenu, is found to have in possession and transportation of illicit distilled liquor, which as per the chemical examiner’s report, is unfit for human consumption and injurious to health, as it contained fusel oil and acids etc. As per the explanation under clause ( a) of Section 2, public order would also mean danger to public health. Therefore, the activities of the detenu are found to affect public health, which squarely falls within the definition of clause (b) under Section 2 of the Act. 12. The grievance of the petitioner is that as per the report of the analyst the seizure liquor contained fusel oil and acids etc. But without specifying the permissible limits of fusel oil and other components therein and without revealing that the permissible components exceeded the limit, the report cannot be relied upon and hence mere presence of fusel oil itself may not be injurious to health. This contention, has not legs to stand, as already noted above, the chemical examiner in his reports has categorically stated that the illicit distilled liquor is unfit for human consumption and injuries to health. This, in our opinion is sufficient and there may not be any need to specify the permissible limit and the exceeded limit and ultimately the purpose of the analysis is to find out whether the illicit distilled liquor is fit for human consumption or not. However, this issue is no longer res integra in the view of the judgment of the Full Bench of this court Doddi Sharada’s case (1 supra), wherein it was held at paragraph no.27 as under: “In the light of all these judgments, it is clear that what is necessary for the District Magistrate for arriving at a subjective satisfaction on the basis of the material before him is that the activities of the person are prejudicial to maintenance of public order. In terms of explanation to Section 2(a) public order would also mean a danger to public health and if the Public Analyst, on a seized sample, was on the opinion that it is not potable or was not fit for human consumption, that in our view, is relevant material for the purpose of arriving at subjective satisfaction. In our view, it is not necessary that the percentage of different constituents of the sample should be mentioned by the Public Analyst. Even if a Public Analyst gives the composition of all the ingredients of the sample without mentioning whether the sample was fit for human consumption or not, it may not be possible for the District Magistrate to know as to whether the sample was injurious to health or not. Basically, it is the opinion of the Public Analyst, which is paramount in determining whether the liquor that was being sold, stored or manufactured, would cause danger to public health.” 13. In view of the above judgment of this court, the contention of the petitioner that chemical examiner did not specify the permissible limits of fusel oil and other components and whether the permissible limit exceeded or not, cannot be sustained and the same is rejected. 14. Considering all the above material, which is stated in the grounds of detention and, which is served on the detenu and after complying with the principles of natural justice and Article 22(5) of the Constitution of India, the detaining authority after recording his satisfaction that the detenu is acting and is also calculated to act in a manner prejudicial to the maintenance of public order and to prevent him from acting further in detrimental to public health, exercising the powers vested in him under Section 3(1) and (2) of the Act, passed the impugned order of detention dated 9.10.2009. In these circumstances, the judgment relied on the counsel for the petitioner in Lalitha’s case is not applicable, to the facts of the present case since the detention order satisfies the provisions of the Act and the detaining authority after recording his subjective satisfaction based on the entire material passed the impugned order of detention. 15. In the counter it is also stated that the order of detention, grounds of detention and the material relied upon, were forwarded to the Government for its approval. The Government in exercise of the powers under sub section (3) of Section 3 of the Act, accorded approval to the order of detention passed by the detaining authority vide G.O.Rt/No.5014