WP/25035/2008 of Mrs. V. Sukkamma Vs Government of Andhra Pradesh on 29 December 2008

1. COR No.384/2007-08 dt.18-3-2008 of Station House Officer, Charminar ExciseProhibition & Excise Station, Hyderabad, wherein the alleged detenu was foundto have been in possession of 187 arrack sachets of illicit distilled liquor, eachpacket containing about 100 ml illicit liquor.

2. COR No.141/2008-2009 dt. 17-8-2008 of Station House Officer, CharminarProhibition and Excise Station, Hyderabad, involving 160 litres of illicit distilledliquor.

3. COR No.147/2008-2009 dt. 20-8-2008 of Station House Officer, CharminarProhibition & Excise Station, Hyderabad, wherein the detenu was alleged tohave been found in possession of 1240 sachets of illicit distilled liquor eachpacket containing about 100 ml illicit liquor.

4. COR No.205/2008-2009 dt. 19-9-2008 of Station House Officer, CharminarProhibition and Excise Station, Hyderabad, wherein the alleged detenu wasalleged to have been found in possession of 800 sachets of illicit distilled liquor, each packet containing about 100 ml. illicit liquor.

5. COR No.234/2008-2009 dt. 14-10-2008 of Station House Officer, CharminarProhibition and Excise Station, Hyderabad, wherein the alleged detenu wasalleged to have been found in possession of 915 sachets of illicit distilled liquor,each packet containing about 100 ml. illicit liquor.Prohibition and Excise Station, Hyderabad, wherein the alleged detenu wasalleged to have been found in possession of 915 sachets of illicit distilled liquor,each packet containing about 100 ml. illicit liquor.

In all the above cases, the alleged detenu was found to be inpossession and transporting illicit liquor containing poisonoussubstances, which are injuries to health and unfit for humanconsumption, in contravention of the provisions of the A.P. Excise Act,1968. In all the cases contraband was seized and samples weredrawn and sent for chemical examination to the Government ChemicalExaminer of Prohibition & Excise, Regional Prohibition & ExciseLaboratory, Hyderabad. As per the chemical analysts reports, it wasfound that all the samples drawn from the seized contraband wasfound to be “illicit distilled liquor, unfit for potable purpose and it isinjuries to health”. In COR No.384/2007-08, COR No.141/2008-09,COR No.147/2008-09, and COR No.205/2008-09, the alleged detenuwas arrested and produced before the court and subsequentlyenlarged on bail. As regards COR No.234/2008-09, the allegeddetenu was arrested and produced before the court. Pursuant to theorder of detention, the detenu was taken into custody on 21-10-2008 and lodged in Central Prison, Hyderabad. At the time oftaking him into custody, order of detention, grounds of detention andmaterial relied upon were served on the detenu both in English and inthe vernacular language (Telugu), and the same was acknowledgedby him. He was duly informed that he has a right to makerepresentation to the Detaining Authority, Chief Secretary toGovernment and the Advisory Board. The Government in theirorder G.O.Rt. No.6175 dt. 24-10-2008, in exercise of powerunder sub-Section (3) of Section 3 of the Act No.1 of 1986, accordedapproval to the order of detention passed by the second respondent.Thereafter, the Government referred the matter to the Advisory Board

Conclusion

constituted under Section 9 of the Act No.1 of 1986, which, afterhearing the detenu, the investigating officer and after perusing theconnected records made available before it, opined that there issufficient cause for the detention of the detenu, Vanarashi Yadaiah S/oJangaiah. The Government after due consideration of the report of theAdvisory Board and the material available on record, in exercise ofthe powers conferred under sub-section (1) of Section 12 r/w 13 of theAct No.1 of 1986 throughG.O.Rt.No.6692 General Administration (Law& Order.II) Department dt. 22-11-2008 confirmed the order of detentionand directed that the detention of the alleged detenu be continued fora period of 12 months from the date of his detention ie., 21-10-2008. Inthe initial order of detention impugned in the writ petition, the period ofdetention was not specified for the reason that the order of detentionpassed by the second respondent would remain in force for a period of12 days unless it is approved by the Government. Therefore, thedetaining authority cannot specify the period of detention in the initialorder. Once the order of detention is approved by the Government thematerial will be placed before the Advisory Board and on the basis ofopinion of the Advisory Board, the Government issued G.O.Rt.6692dt.22-11-2008 fixing the period of detention. Since the detenu wascontinuously indulging in bootlegging activities it has necessitated forhim to pass the order of detention as the activities of the detenu werecausing prejudicial to the maintenance of public order, therebyaffecting public health.

Sri C. Raghu, learned counsel for the petitioner contended thatthe order of detention does not disclose subjective satisfaction onwhich the detaining authority comes to a conclusion to detain thedetenu. Further, non-mention of the fact of obtaining bail order wouldamount to arbitrariness and total non-application of mind; therefore,the detention order is liable to be set-aside. For the said proposition, a reliance is placed on the judgment of this court in KALLAYMUTYALAMMA V. DISTRICT COLLECTOR, EAST GODAVARI[[1]].He further contended that subjective satisfaction of the detainingauthority is traceable only in three cases and omitted the other twocases, which were mentioned in the order of detention, the sameamounts to non-application of mind, which would vitiate the detentionorder, therefore the same is liable to be set-aside. For the saidproposition, a reliance is placed on the judgment of this court in PAMULA PITCHAIAH V. GOVERNMENT OF AP[[2]].

Learned Government Pleader representing Advocate Generalwhile sustaining the order of detention impugned in the writ petitioncontended that in all the five crimes, the detenu was found to be inpossession of huge quantity of illicit distilled liquor and chemicalanalysts reports show that the same is unfit for human consumptionand injurious to health. Further, mere non- mention of bail granted intwo cases, which are subsequent to the date of order, does not vitiatethe detention order and material placed before the detaining authorityis sufficient to hold that the detenu was continuously involving inbootlegging activities, which necessitated the authorities to pass thedetention order, which has been approved by the State Government.The subjective satisfaction reached by the detaining authority cannotbe a subject matter of judicial review unless the same is established tobe perverse. Similarly, the detention order passed by the secondrespondent need not contain the period of detention; it is only the dutyof the approving authority to specific the period of detention.

In view of the above rival submissions, the point that arises forconsideration is:

“Whether the detention order passed by the detaining authority asapproved by the Government in G.O.Rt.No.6175dt. 20-10-2008 and confirmed in G.O.Rt. No. 6692 dt. 22-11-2008 can be sustainable or not?”approved by the Government in G.O.Rt.No.6175dt. 20-10-2008 and confirmed in G.O.Rt. No. 6692 dt. 22-11-2008 can be sustainable or not?”

Before dealing with the rival submissions, it would beappropriate to notice the relevant statutory provisions, which deal with thepurpose and intention of Act 1 of 1986.

Sub-section (1) of Sec.3 of the Act 1 of 1986 empowers theGovernment to make orders detaining certain persons with a view toprevent from acting in any manner prejudicial to the maintenance of publicorder. Preventive detention is an anticipatory measure and does notrelate to an offence, while criminal proceedings are to punish a person foran offence committed by him under the Indian Penal Code. Sub-section(2) of Section 3 allows the detention of a person only if the appropriatedetaining authority with whom the powers are delegated under sub-section (2) of Section 3 is satisfied with a view to prevent such personfrom carrying on any of the offensive activities enumerated therein, it isnecessary to detain such person. The satisfaction of the detainingauthority is not a subjective one based on his beliefs or prejudices. There must be a real likelihood of the person being able to indulge insuch activities, the inference of such likelihood being drawn fromobjective data.

Sub-Section (2) of Section 3 deals with delegation of powers bythe State Government and provides that if the State Government issatisfied having regard to the circumstances prevailing in any areawithin the local limits of the jurisdiction of a District Magistrate or aCommissioner of Police, it is necessary to empower District Magistrateor the Commissioner of Police, as the case may be to exercise thepowers of the State Government to order detention of a person asprovided 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 insub-sec. (2), he shall forthwith report the fact to the State Government,together with the grounds on which the order has been made and suchother particulars as, in his opinion, have a bearing on the matter, and nosub-sec. (2), he shall forthwith report the fact to the State Government,together with the grounds on which the order has been made and suchother 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 themaking thereof, unless in the meantime, it has been approved by theState Government.

Sections 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, intoxicatingdrug or other intoxicant in contravention of any of the provisions of theAndhra Pradesh Excise Act, 1968, and the rules, notifications and ordersmade thereunder or in contravention of any other law for the time being inforce, or who knowingly expends or applies any money or supplies anyanimal, vehicle, vessel or other conveyance or any receptacle or anyother material whatsoever in furtherance or support of the doing of any ofthe abovementioned things by himself or through any other person, orwho 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” andreads as follows:

(a) "acting in any manner prejudicial to the maintenance of publicorder" means when a boot-legger, dacoit, a goonda, an immoraltraffic offender or a land grabber is engaged or is makingpreparations for engaging, in any of his activities as such, whichaffect adversely, or are likely to affect adversely, themaintenance of public order". Explanation to Section 2 (a) ofthe Act reads as under: "For the purpose of this clause publicorder shall be deemed to have been affected adversely, or shallbe deemed likely to be affected adversely inter alia, if any of theactivities of any of the persons referred to in this clause directly,or indirectly, is causing or calculated to cause any harm, dangeror alarm or a feeling of insecurity among the general public orany section thereof or a grave or widespread danger to life orpublic health.”

In COLLECTOR & DISTRICT MAGISTRATE, ELURU

V.SANGALA KONDAMMA[[3]]this court set-aside the detention orderpassed by the District Collector made under Sec. 3(1)(2) r/w Sec.2(a)and (b) of the Act 1 of 1986, which was approved by the StateGovernment and confirmed the detention of the detenu for a period of 12months from the date of detention. On appeal being filed by the detainingauthority, the Supreme Court while upholding the detention order observed as under:

“……In the instant case, it is seen that between the period from 10-1-2001and 25-10-2002 the detenue was involved in five incidents of bootleggingwhich are reasonably proximate to each other and the last of the incidentsbeing proximate to the order of detention, we think the High Court was notjustified in treating the two incidents of 17-1-2000 and 10-1-2001 as staleby taking them in isolation. In our opinion, the court should haveconsidered the proximity of the incidents between themselves whichindicates the possibility of the proposed detenue continuing to indulge inthe illegal activities which requires his preventive detention. In the presentcase, as noticed above, the five incidents recorded in the order ofdetention being proximate enough to each other shows the continuity ofthe acts of the detenue. In such a fact situation, we think the High Courterred in coming to the conclusion that two of the five grounds being notproximate to the order of detention and the order of detention was base onstale grounds.”

In R. KALAVATHI V. STATE OF T.N[[4]], the husband of theappellant was detained under T.N. Prevention of Dangerous Activities ofBootleggers, Drug-offenders, Forest Offenders, Goondas, Immoral TrafficOffenders, Slum-Grabbers and Video Pirates Act, 1982, which is parimateria to Act. 1 of 1986. While considering the meaning of word“habitually” the Supreme Court held as under:

”The expression “habit” or “habitual” has not been defined under the GujaratPrevention of Anti-Social Activities Act, 1985. The word “habitually” doesnot refer to the frequency of the occasions but to the invariability of apractice and the habit has to be proved by totality of facts. It, therefore,follows that the complicity of a person in an isolated offence is neitherevidence nor a material of any help to conclude that a particular person is a“dangerous person” unless there is material suggesting his complicity insuch cases, which lead to a reasonable conclusion that the person is ahabitual criminal. The word “habitually” means “usually” and “generally”.Almost similar meaning is assigned to the word “habit” in Aiyar’s JudicialDictionary, 10th Edn., at p. 485. It does not refer to the frequency of theoccasions but to the invariability of practice and the habit has to be provedby totality of facts. (See Mustakmiya Jabbarmiya Shaikh v . M.M. Mehta(1995) 3 scc 237)(para 12)

The expression “habitually” is very significant. A person is said to be ahabitual criminal who by force of habit or inward disposition is accustomedto commit crimes. It implies commission of such crimes repeatedly orpersistently and prima facie there should be continuity in the commission of those offences. (See Ayub v. S.N. Sinha (1990) 4 scc 552) (para 13)

The Supreme Court in HARPREET KAUR V. STATE OF

MAHARASHTRA[[5]]while considering the identical provision ofMaharashtra Prevention of Dangerous Activities of Slumlords,Bootleggers and Drug Offenders Act, 1981 held that “Public Order” or“Law and Order” are two different and distinct concepts and there isabundance of authority of this Court drawing a clear distinction betweenthe two, with a view to determining the validity or otherwise of the order ofdetention, it would be necessary to notice the difference between the twoconcepts. After referring to the various judgments rendered by it, theSupreme Court held as under:

“The explanation to S. 2(a) (supra) brings into effect a legal fiction as tothe adverse effect on 'public order'. It provides that if any of the activitiesof a person referred to in clauses (i)-(iii) of Section 2(a) directly orindirectly causes or is calculated to cause any harm, danger or alarm ora feeling of insecurity among the general public or any Section thereof ora grave or a wide-spread danger to life or public health, then public ordershall be deemed to have been adversely affected. Thus, it is the fall outof 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 detentionsunder the Act.

In KALLY MUTYALAMMA’s case(1 supra) the facts are that five crimes were registered against the alleged detenu; the detenuobtained bail in all crimes, and though the detaining authority made aspecific mention of orders of bail in all the four crimes failed to mentionorder of bail obtained by the detenu in the last crime. Under thosecircumstances, this court held that when the detaining authority had madea specific mention of the orders of bail in all the earlier crimes, the non-mentioning of the order of bail obtained by the detenu in the last crimewould be a vital fact, which is capable of impairing the subjectivesatisfaction of the detaining authority.

In the case on hand, it is no-where averred by the petitioner that by the time of passing of detention order, the petitioner was enlargedon bail in last two crime numbers ie., COR No.205/2008-09 and CORNo.234/2008-09 nor any pleading to the said effect. The ground ofdetention clearly discloses that the detenu was arrested on 14-10-2008and produced before the court for judicial remand and the detention orderwas passed on 20-10-2008. Therefore, facts in the above judgment aremisplaced to the facts in the present case.

This court in G.GOVIND RAJU V. THE COLLECTOR &

DISTRICT MAGISTATE, CHITTOOR DISTRICT[[6]]held that the fact thatthe Court enlarged the detenu on bail has nothing to do with the power tobe exercised by the authority under the provisions of the Act, 1986. Thelearned counsel for the petitioner has not brought to our notice anyprovision of the Act, 1986, which mandates the detaining authority thatwhile passing an order of detention, it has to take into consideration thefact that the detenu was enlarged on bail by the Court. The power to beexercised by the Court in granting a regular bail in a criminal case isindependent of the power to be exercised by the designated detainingauthority under the provisions of Act, 1986. In the absence of any suchprovision under the Act empowering the detaining authority to take intoconsideration the factum of detenu being enlarged on bail by the Courtwhile passing an order of detention, it cannot be said that the action of thedetaining authority in passing the order of detention is vitiated on accountof non-application of mind.

In the present case, it is not the case of the petitioner that thedetenu was not supplied with necessary documents, so that he lost anopportunity of defending his case efficiently, and it is also not his case thatin the last two crimes he obtained bail and observations made by thecourt while enlarging bail are favourable to him, which were not placedbefore the detaining authority, and non-mention of order of bail obtainedwould vitiate the detention order. In the absence of the same, we reject the contention of the learned counsel that non-mention of order of bailobtained/rejected in the two crimes would vitiate the order of detention.

The grounds of detention, as referred to above, clearly disclosesthat detenu was habituated in commission of crimes and is accustomed tocommit crimes of transporting and selling of illicit distilled liquor, whichcontains injuries substances and unfit for human consumption. Once thedetenu is indulging in bootlegging activities of purchase, transport, saleand distribution of illegally manufactured spurious liquor violating theprovisions of the Excise Act, which is likely to cause widespread dangerto public health and create a feeling of insecurity among the generalpublic and if the same is allowed, there is every possibility of danger tothe life of public health who consumes illicit liquor, which is a prejudicial activity causing danger to public health and maintenance of public order.The detaining authority satisfied that the activities, which were carried on by the detenu, would cause prejudice and adversely affect the publichealth, particularly the downtrodden and the under-privileged in the areaand passed the detention order, which was approved by the Government.When the matter is placed before the Advisory Board, the Advisory Boardafter providing an opportunity to the detenu, opined that there is sufficientcause for the detention of the alleged detenu and the same had beenaccepted by the Government only to prevent the detenu fromperpetuating, transporting and distribution of illicit distilled liquor. Thesubjective satisfaction arrived at by the detaining authority as approved bythe Government is based on sufficient material, which was supplied to thedetenu complying the Constitutional mandate under Ar. 22(5) of theConstitution. In view of the same, the detention order passed by theCollector & District Magistrate, Hyderabad as approved by theGovernment in G.O.Rt.6692 dt. 22-11-2008 does not suffer from anyillegality or it violates the constitutional/statutory right under of the detenuunder Art. 22(5) of the Constitution rendering the detention order illegal.

The writ petition fails and is accordingly dismissed at theadmission stage.

_______________A.GOPAL REDDY,J

______________

R.KAANTHA RAO,J.

Dt. -12-2008kmr

[1]2007(5) ALT 475(DB)[2]2008(3) ALT 243 (DB)[3]2005 AIR SCW 159::AIR 2005 SC 1165[4](2006) 6 SCC 14[5]AIR 1992 SC 979=(1992) 2 SCC 177[6]Unreported judgment of this Court dt. 3-12-2007 in WP No.20407 of 2007