SHAIK BASHU Vs. COLLECTOR AND DISTRICT MAGISTRATE ANANTHAPUR

JUDGEMENT

(1.) This Writ Petition is filed by the Petitioner praying for issue of a writ of Habeas Corpus directing the respondents to produce his son, S. Abubakar who is detained in the Chenchalguda Central Prison, Hyderabad, before this Court and to release him forthwith after declaring that his detention is ille gal and invalid.

(2.) It is stated that by an order dated 28-1-2003 under Section 3(2) read with Section 3(1) of the A.P. Prevention of Dangerous Activities of Boot-Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short, the Act), the Collector and the District Magistrate, Anantapur ordered detention of the Petitioner's son on the ground that he is a boot-legger and his activities are prejudicial to the maintenance of public order. The State Government, on 3-2-2003, approved the said order of detention. The Advisory Board reviewed the case on 3-3-2003, and by an order dated 6-3-2003, the Government confirmed the order of detention and directed the detention of the Petitioner's son for a maximum period of 12 months from the date of his detention i.e., from 30-1-2003. It is also stated that in the order of detention, the Respondents have mentioned 6 grounds indicating his involvement in six cases under which the Prohibition and Excise authorities have seized, from the possession of the detenu, contraband arrack sachets varying from 50 to 150 on each of the occasions. According to the Petitioner, the first instance referred to in the order of detention had taken place on 5-9-2000 with reference to which a case in Cr. No. 129 ot 2000-01 dated 5-9-2000 was registered under Section 7(A) read with Sec. 8(E) of the A.F. Prohibition Act. According to the Petitioner, as the said event had occurred two years prior to the order of detention, it is a stale incident for the purpose of passing the order of detention. It is also stated that the report of the Chemical Examiner in respect of the first incident was to the effect that the samples contained 'diluted arrack' and there is no allegation in the report that it contained any substance, which is unfit for human consumption or injurious to health. According to the Petitioner, the first ground is irrelevant and it should not have been taken. It is stated with reference to other grounds that the reports of the Chemical Examiner were to the effect that the samples contained sediments unfit for human consumption, but the said reports do not contain the details as to the substances contained in the samples which would affect the health of the public. It is also stated that as per the reports of the Chemical Examiner, the samples contained fusel oil within the limits and the other tests were negative, except showing the presence of alcohol. It is the case of the Petitioner that the fact that the samples contained alcohol do not make them unfit for human consumption nor are they injurious to health and, therefore, do not make the activities of the detenu prejudicial to the maintenance of public order. It is also stated that the order of detention was passed without applying the mind.

(3.) The 1st Respondent - Collector and District Magistrate, Anantapur who passed the order of detention, filed a counter affidavit refuting the allegations made by the Petitioner in the affidavit filed in support of the Writ Petition. In the counter it is stated that the sale of arrack is prohibited and as the detenu has been regularly indulging in the sale of arrack, the detaining authority was constrained to pass an order of detention in order to curb the activity of boot-legging. It is also stated in the counter affidavit that any variation with reference to the prescribed limits of the constituents of arrack would be considered as spurious and it amounts to adulterated arrack and the sale is prohibited as it is injurious to the health and thereby causes prejudice to the maintenance of public order.