IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWELTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE D.S.R.VARMA and THE HON'BLE MR JUSTICE K.C. BHANU WRIT PETITION NO : 13952 of 2008 Between: Komatla Kameswar Rao S/o. Nageswara Rao, R/o. Posinavaripalem, Gudur Mandal, Krishna District. ..... PETITIONER AND 1 The Collector & District Magistrate, Krishna District at Machilipatnam. 2 The Chief Secretary, Government of Andhra Pradesh, Secretariat, Hyderabad. 3 The Superintendent, Central Prision, Rajahmundry, East Godavari District. .....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 an appropriate writ, order or direction more particularly one in the nature of writ of Habeas Corpus, under Article 226 of the Constitution of India directing the respondents to produce Sri Komatla Bhasker Rao, S/o. Nageswara Rao, detained in Central Prison, Rajahmundry, before this Hon'ble Court and he may be ordered to be released forthwith after declaring his detention is illegal and void and pass such other order or orders as this Hon’ble Court deems fit and proper in the circumstances of the case. Counsel for the Petitioner: MR.T.PRADYUMNA KUMAR REDDY Counsel for the Respondents: THE ADVOCATE GENERAL The Court made the following : THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION NO. 13952 OF 2008 ORDER: (per the HON’BLE SRI JUSTICE K.C.BHANU) 1. This Writ Petition, under Article 226 of the Constitution of India, is filed to issue a writ of Habeas Corpus, directing the respondents to produce Komatla Bhaskar Rao, s/o. Nageswara Rao, who is detained in Central Prison, Rajahmundry, before this Court, and to release him forthwith after declaring his detention as illegal and void. 2. The brief facts that are necessary for disposal of this Writ Petition may be stated as follows. The petitioner herein is younger brother Komatla Bhaskar Rao, s/o. Nageswara Rao(hereinafter called as ‘the detenu’), who is lodged in Central Prison, Rajahmundry. By order dated 20.03.2008, passed under Sections 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, 1986’), the first respondent ordered detention of the detenu on the ground that the detenu was a bootlegger within the meaning of the Act, 1986, and with a view to prevent him from acting in a manner prejudicial to the maintenance of the public order. 3. It is stated in the Writ Petition that the detaining authority has passed the order of detention in mechanical and routine manner on vague, irrelevant and non-existing grounds; that, the grounds of detention, served on the detenu, referred to three incidents, and the last incident took place on 22.11.2007, whereas the detention was passed on 20.3.2008 i.e. after lapse of 4 months from the date of last incident; that, in between the period, no incidents took place and therefore the third incident is a stale instance and there is no proximity of time. It is further stated that the detenu was released on bail in all the three cases, but no orders of release were supplied nor placed before the detaining authority to enable him to apply his mind before passing the order of detention. 4. A detailed counter affidavit has been filed by the first respondent stating that the detaining authority satisfied that the activities of the detenu fall within the definition of ‘Bootlegger’ as defined under Section 2(b) of the Act, 1986, and passed the impugned order; that in the three crimes, the detenu was found in possession of 10 litres, 75 litres and 35 litres of illicitly distilled liquor, respectively; that the Analyst, who analysed the samples, opined that the samples contained sediment which is injurious to health and unfit for human consumption; therefore, to prevent him from further indulging himself in similar offences in future, the detention order was passed. Hence, it is prayed to dismiss the Writ Petition. 5. The learned counsel for the petitioner argued that copies of the charge sheets in all the three cases, though filed, have not been supplied to the detenu so as to make effective representation; that there is a gap of four months from the date of last incident relied on by the detaining authority and date of passing of the impugned order; that copies of the bail applications and order passed therein, are not supplied to the detenu; that the date on which all the relevant documents were given to the detenu, has not been stated; that there is no indication that the contents of all the documents referred to and relied upon, by the detaining authority have been read over to the detenu so as to make effective representation. Hence, he prays to set aside the impugned order. 6. On the other hand, the learned Assistant Government Pleader representing the Advocate General, opposed the same on the ground that the detaining authority, after subjective satisfaction of the material placed before him, passed the impugned order; that the I.D. liquor recovered from the possession of the detenu affects the entire nervous system and it would cause on-to-ward incident in the general public; that the existing laws cannot curb the activities of the detenu; that none of the grounds raised by the learned counsel for the petitioner, is enough to set aside the impugned order. Hence, she prayed to dismiss the Writ Petition. 7. The detaining authority passed the impugned order basing on the following three crimes registered against the detenu. 1) Cr. No.1892/2006-07, dated 25.3.2007 of Prohibition & Excise Station, Machilipatnam, Krishna district. On 25.3.2007, during the raid conducted by Prohibition & Excise officials at Posinavaripalem village, Gudur Mandal, they found the detenu in possession of 10 ltrs of I.D. liquor. After taking the sample, the contraband was seized from him and the detenu was taken into custody and the above crime was registered. The sample drawn was sent to Chemical Examiner, Kakinada for analysis. He was produced before the Special First Class Magistrate for trying Prohibition and Excise Offences, Machilipatnam and sent to judicial custody. Subsequently, he was enlarged on bail on 2.4.2007. After analyzing the sample, the Chemical Examiner, Prohibition and Excise, Kakinada in his report in C.E. No.526/2007, dated 25.6.2007 opined that the sample is “illicitly distilled liquor, unfit for human consumption and injurious to health”. After completion of investigation, charge sheet was filed and the case was numbered as C.C.No. 139/2008 and the same is under trial. 2) Cr. No.320/2007-08, dated 19.6.2007 of Prohibition & Excise Station, Machilipatnam, Krishna district. On 19.6.2007 during the raid conducted by Prohibition and Excise officials at Pindivaripalem of Posinavaripalem village, Gudur Mandal, they found the detenu in possession of 75 ltrs of I.D. liquor. After taking the sample, the contraband was seized from him and the detenu was taken into custody and the above crime was registered. The sample drawn was sent to Chemical Examiner, Kakinada for analysis. He was produced before the Special First Class Magistrate for trying Prohibition and Excise Offences, Machilipatnam and sent to judicial custody. Subsequently, he was enlarged on bail on 27.6.2007. After analyzing the sample, the Chemical Examiner, Prohibition and Excise, Kakinada in his report in C.E. No.684/2007, dated 16.8.2007 opined that the sample is ‘illicitly distilled liquor, unfit for human consumption and injurious to health’. After completion of investigation, charge sheet was filed and the case was numbered as C.C. No.140/2008 and the same is under trial. 3) Cr.No.915/2007-08, dated 22.11.2007 of Prohibition & Excise Station, Machilipatnam, Krishna district. On 22.11.2007 during the patrolling conducted by Prohibition and Excise officials at Posinavaripalem village, Gudur Mandal, they found the detenu in possession of 35 ltrs of I.D. liquor. After taking the sample, the contraband was seized from him and the detenu was taken into custody and the above crime was registered. The sample drawn was sent to Chemical Examiner, Kakinada for analysis. He was produced before the Special First Class Magistrate for trying Prohibition and Excise Offences, Machilipatnam and sent to judicial custody. Subsequently, he was enlarged on bail on 26.11.2007. After analyzing the sample, the Chemical Examiner, Prohibition & Excise, Kakinada in his report in C.E. No.262/2008, dated 19.3.2008, opined that the sample is ‘illicitly distilled liquor, unfit for human consumption and injurious to health’. After completion of investigation, charge sheet was filed and the case was numbered as C.C. No.138/2008 and the same is under trial.” 8. It is clear from the above that the sample that was drawn from the contraband on each occasion, was sent to Chemical Examiner. On analysis of the sample, the Chemical Examiner opined that the I.D. liquor contained sediment, which is injurious to health and unfit for human consumption. No doubt, there is a time gap of 4 months from the date of seizure of contraband from the detenu in the last case, which is on 22.11.2007, and date of passing of the impugned order which is on 20.3.2008. At the same time, it can be seen that report of the analyst was received on 19.3.2008. Unless the opinion is given by the expert with regard to the contents of the sample sent to him, prima facie offence under Section 8(e) of the A.P. Prohibition Act, cannot be made out. So, necessarily the authority has to wait till the report of the analyst is received for passing the impugned order. In the circumstances, it cannot be said that there was no proximity of time between the last date of incident and the date of passing the impugned order. Therefore, the contention raised by the learned counsel for the petitioner is unsustainable. 9. With regard to non-supply of copies of bail applications and orders passed therein, it is well settled that all the documents need not be supplied to the detenu, but the documents relied upon by the detaining authority which have material bearing in assessing the satisfaction, have to be supplied to the detenu. On this aspect, it is pertinent to refer to a decision of a Division Bench of this Court, in which one of us (D.S.R. Varma, J.) is a member, in Kallay Mutyallamma v. Collector & District Magistrate, East Godavari at Kakinada & others, wherein it is held thus: (para 23) “From the judgments referred to above (1 to 3 supra), it is clear that it is always not necessary that the detaining authority shall supply the entire material, including the bail applications and the order of bail, and refer the same in the order of detention. In other words, suffice it for the detaining authority to pass the order of detention only on the basis of material on which reliance is placed.” From the above decision, it is clear that only such material on which reliance was placed by the detaining authority, has to be supplied to the detenu. 10. It is one of the contentions raised by the learned counsel for the petitioner that copies of charge sheets in all the 3 crimes have not been furnished to the detenu. Though it is mentioned in the counter that charge sheets have been filed in the above-referred crimes registered against the detenu and cognizance of the cases have been taken by the competent Court basing on the reports filed by the investigating officer, at the same time, the charge sheets are neither referred to, nor relied upon, by the detaining authority to arrive for subjective satisfaction. Therefore, the documents which have not been referred to, and not relied on, by the detaining authority, need not be supplied to the detenu. 11. The other contention of the learned counsel for the petitioner is that since the petitioner is a thumb impressionist, he could not be in a position to know the contents of the documents and on what date they have been served to him. On this aspect, it is pertinent to refer to Article 22(5) of the Constitution of India, which reads thus: “When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order”. 12. Admittedly, the detenu has filed appeal before the Government and also made representation to the advisory board. Nowhere in the affidavit filed in support of this Writ Petition, it is stated that there was a delay in supply of the documents to the detenu and that because of the delay, he could not make effective representation to the Government as well as the advisory board. It is not the case of the detenu that the contents of the documents were not read over and explained to him at the time of furnishing those copies to him and for that reason he could not be in a position to make an effective representation. Therefore, the contention raised by the learned counsel for the petitioner is devoid of merit. 13. As seen from the impugned order, the detaining authority has taken into consideration the consequences of consuming the I.D. liquor which will have impact on the central nervous system and cause liver diseases, and cardiac problems like Bradycardia and sudden death, mental irritation, Stupor coma, convulsion and renal failure, etc. Therefore, if such I.D. liquor is consumed by public, certainly it would affect the interest of public in general of that locality, and consequently it would cause wide spread danger to public health and create a feeling of insecurity among the general public of the locality, which will have an impact on the public health and public order. Therefore, after perusing the impugned order, we are of the opinion that the detaining authority has applied its mind in order to arrive at subjective satisfaction, and passed the impugned order, and it does not suffer from any infirmities so as to call for any interference by this Court. 14. The Writ Petition is devoid of merit and is, accordingly dismissed. No costs. --------------------------------- JUSTICE D.S.R.VARMA -------------------------------- JUSTICE K.C.BHANU 12.08.2008. DRK To 1 The Collector & District Magistrate, Krishna District at Machilipatnam. 2 The Chief Secretary, Government of Andhra Pradesh, Secretariat, Hyderabad. 3 The Superintendent, Central Prision, Rajahmundry, East Godavari District. 4. The Advocate General, High Court buildings, Hyderabad. 5. Sri T.Pradyumna Kumar Reddy, Advocate for petitioner (OPUC) 6.2CD copies ..... REGISTRAR // TRUE COPY // SECTION OFFICER