LALITHA Vs. STATE OF A P

JUDGEMENT

(1.) Smt. Lalitha, w/o. Banoth Sammaiah, filed the present Writ Petition praying for a writ of Habeas Corpus directing the respondents to produce the detenu by name Banoth Sammaiah s/o.Balu Naik, aged 28 years, R/o. K.K. Nagar Mandal, Kamanpur of Karimnagar District and set him at liberty by declaring the detention order dated 7-4-2007 in Rc. No. 306/2007/P & Ex/A3 passed by the 2nd respondent and the order in G.O.Rt.No. 1942, General Administration (Law and Order. II) Department dated 12-4-2007 passed by the 1st respondent approving the detention order as illegal, arbitrary and contrary to the provisions of Act No. 1 of 1986 and Article 21 of the Constitution of India and to pass such other suitable orders.

(2.) It is stated that the petitioner is a resident of K K. Nagar, Godavarikhani of Kamanpur Mandal of Karimnagar District and eking out livelihood by working as a daily agricultural labour and she is the wife of the detenu by name Banoth Sammaiah and her husband also is working as agricultural labour and they are poor and belong to socially and economically backward class community. It is stated that the 2nd respondent herein passed the order dated 7-4-2007 in Rc. No. 306/2007/P&Ex/A3 exercising the powers under Section 3(1) and 3(2) of A. P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (hereinafter in short referred to as "Act" for the purpose of convenience) on the ground that the detenu was involved in three criminal cases i.e., (i) C.O.R. No. 19/2006-07 dated 20-4-2006, (ii) C.O.R.No. 470/2006-07 dated 29-12-2006 and (iii) C.O.R.No. 635/2006-07 dated 12-3-2007 under Section 7-A r/w. Section 8(e) of A.P. Prohibition and Excise Act 1995 on the file of Prohibition and Excise Station, Godavarikhani-ll of Karimnagar district. It is further stated that charge sheet was filed in all the above said cases on 28-3-2007 and they are pending for trial. The detenu was taken into custody on 7-4-2007 and is detained in Central Prison, Warangal. The detenu was served with the detention order dated 7-4-2007 and the grounds of detention and in the grounds of detention only three cases as aforesaid were referred to for initiation of the proceedings under Section 3 of the Act. It is also stated that the involvement of the detenu in the above referred cases is yet to be established by the competent court in which the charge sheet was filed. Except the above said three cases, the detenu was not involved in any other case nor he was convicted for any other offence. The passing of the impugned order referring to the above three criminal cases is irrelevant and does not constitute a ground for initiating proceedings under Section 3 of the Act. The acts of the detenu alleged in the above criminal cases does not constitute any offence or acting in any manner prejudicial to the maintenance of public order even if they were taken on their face value and as such the detention order is liable to be set aside the detention order passed by the 2nd respondent did not appreciate the material placed before it and had passed the order mechanically and the material placed before the 2nd respondent does not warrant passing of the detention order dated 7-4-2007. It is also stated that the 1st respondent-detaining authority relied on three crimes referred above in which the detenu was stated to have involved in possession of 5 litres of I. D. Liquor, 20 litres of I. D. liquor and 5 litres of I.D. liquor respectively. The possession of small quantity of liquor does not cause any prejudice to the maintenance of public order. Further, the grounds shown in the detention order are stale, irrelevant and hence the detention order is liable to be set aside and it is not known which ground influenced the detention authority in passing the inpugned order. Further, the detenu was arrested in all the three cases and was released on bail and charge sheet was also filed. The detaining authority did not place orders granting bail to the detenu and copies of charge sheet filed in the above cases along with the grounds of detention order so as to enable the detenu to make effective representation to the detaining authority and to the Government and on this ground alone the impugned order is liable to be set aside. It is further stated that the Hon'ble Supreme Court in a number of cases was pleased to hold that the documents which were referred to and relied on by the detaining authority must form part of the detention order and failure to serve documents i.e., bail order and charge sheet, vitiates the detention order. In such circumstances, the petitioner filed the present Writ Petition under Article 226 of the Constitution of India.

(3.) A counter affidavit is filed on behalf of the 2nd respondent wherein it was stated that the order of detention against the detenu Banoth Sammaiah was passed by exercising the powers under Section 3(1) and (2) r/w Section 2(a) and (b) of the Act as he had been indulging in the offences of possession, transportation and sale of I.D. liquor in and around K.K. Nagar, Godavarikhani of Karimnagar District in the manner prejudicial to the maintenance of public order and tranquility thereby causing danger to the public health. The illicitly distilled liquor sold by the detenu was prepared in crude methods and it was causing wide spread danger to the public health. Upon perusing the record placed by the Sponsoring Authority i.e., Prohibition & Excise Superintendent, Peddapalle, Karimnagar District, it is clear that the activities of the detenu fall within the definition of Bootlegger as defined under Section 2(b) of the Act and accordingly the impugned order was passed on satisfying that the circumstances exist for passing the order of detention. It is also further stated that while passing the impugned order, in order to determine the conduct of the detenu, the 2nd respondent had gone through various cases registered against him. On 20-4-2006 at about 6.50 P.M. the Excise officials proceeded to the house of the detenu on reliable information that he was in possession of I. D. liquor and found him in possession of a can with 5 litres of I.D. liquor. The said contraband was seized from his possession and the sample drawn was sent for chemical analysis and C.O.R. No. 19-2006 was registered under Section 7(A) r/w. Section 8(e) of A. P. Prohibition Act, 1995 of Prohibition and Excise Station, Godavarikhani. II and that the detenu was arrested and sent to judicial custody. The Chemical Examiner, Warangal, analysed the sample and in his report in C.E. No. 647/2006 SI.No. 11823 dated 22-8-2006 opined that the sample is illicitly distilled liquor containing sediment. It was also opined that the same is injurious to the health and unfit for human consumption. After completing the investigation charge sheet was filed before the Judicial First Class Magistrate, Manthani and it is yet to be numbered. Further, on 29-12-2006 at about 12.30 P.M. when the Excise Officials proceeded to the house of the detenu on reliable information of sale of I.D. liquor and proceeded to Railway Track 7B, Vittalnagar, Godavarikhani, they found the detenu in possession of 20 litres of I.D. liquor. The said contraband was seized from his possession and the sample drawn was sent for chemical analysis and C.O.R. No. 470/2006-07 was registered under Section 7(A) r/w. Section 8(e) of A. P. Prohibition Act, 1995 of Prohibition and Excise Station, Godavarikhani. II and the detenu was arrested and sent to judicial custody. The Chemical Examiner, Warrangai, analysed the sample and in his report in C.E.No. 119/2007 SI.No. 3068, dated 29-1-2007, it was opined that the sample is illicitly distilled liquor containing sediment and the same is injurious to health and unfit for human consumption. After completing the investigation, charge sheet was filed before the Judicial first Class Magistrate, Godavarikhani and it is yet to be numbered. It is further stated that on 12-3-2007 at about 8 a.m. the Excise officials proceeded to the house of the detenu on reliable information of sale of I.D. liquor, proceeded to 5 Incline Chowrastha, Godavarikhani and found the detenu in possession of 5 litres of I.D. liquor. The said contraband was seized from the possession of the detenu and the sample drawn was sent for chemical analysis. On that the detenu was arrested and sent to judicial custody and C.O.R.No. 635/2006-07 was registered. The Chemical Examiner, Warangal, analysed the sample and in his report in C.E.No. 402/2007, SI.No. 6868, dated 23-3-2007 opined that the sample is illicitly distilleld liquor containing sediment and the same is injurious to health and unfit for human consumption. After completing the investigation, charge sheet was filed before the Judicial First Class Magistrate, Godavarikhani and it is yet to be numbered. Thus the activities of the detenu clearly fall within the definition of "Bootlegger" as defined under Section 2(b) of the Act requiring passing of the order of detention. Upon perusing of the material papers, the 2nd respondent is satisfied that the detenu shall be prevented from further indulging himself in similar offences in future and thereby the order of detention was passed on justified grounds on 7-4-2007. It is further stated that the detenu was taken into custody on 7-4-2007 and lodged at Central Prison, Warangal and at the time of taking him into custody the order of detention, the grounds of detention and the material relied upon were served on the detenu and the same was acknowledged by him. The detenu was duly informed that he has a right to make representation to the Detaining Authority, Chief Secretary to Government and Advisory Board and thus the constitutional and statutory mandate had been complied with. It is further stated that the Government issued G.O.Rt. No. 1942, General Administration (Law & Order. II) Department, dated 12-4-2007 approving the order of detention and the order of detention passed against the detenu will be placed before the Advisory Board in its meeting to be held on 30-4-2007 and after the Advisory Board rendering its opinion the government would pass appropriate orders. Further it is stated that the detention order under the Act was passed only to prevent the detenu from further indulging in such bootlegging activities. It is further stated that the competent Court would try the cases and pass appropriate orders, but that does not bar the detaining authority from passing the order of detention against the detenu with a view to prevent him from further indulging in such illegal activities on perusing the material placed before it on justified grounds. It cannot be said that the detention order is liable to be set aside on the ground that he was not convicted or the truth or otherwise of the above cases is not yet established by the competent Court. It is also further stated that the crimes referred to in the order of detention are of the same Excise Year 2006-07 and in all the crimes the detenu was caught red-handedly while he was in possession of I. D. liquor and hence it cannot be said that the crimes are irrelevant for arriving at the subjective satisfaction. Further it is stated that it is not correct to state that the crimes mentioned in the detention order are stale. The first crime was registered in April 2006, the second was registered in the month of December 2006 and the third was registered in the month of March 2007 and the order of detention was passed against the detenu on 7-4-2007 and as such it cannot be said that the crimes registered are stale, irrelevant and the order of detention is liable to be set aside on the said grounds. It is further stated that the ordinary Excise Laws failed to curb the illegal activities of the detenu and hence he was continuously indulging in bootlegging activities despite registration of crimes against him and hence the order of detention against the detenu to prevent him from further indulging in such activities was passed. It is further stated that in C.O.R. No. 19/2006-07 the detenu was found in possession of 5 litres of I. D. liquor, in C.O.R.No. 470/2006-07 the detenu was found in possession of 20 litres of I.D liquor and in C.O.R. No. 635/2006-07 the detenu was found in possession of 5 litres of I.D. liquor. Further it is stated that by consuming the said I.D. liquor, there would be wide spread danger to the public health and it would cause prejudice to the maintenance of public order and therefore it is not the quantity of the liquor but quality of the liquor is the criterion under the provisions of the Act. The detenu was in possession of I.D. liquor and after analysis of the sample, the Chemical Examiner opined that it is illicitly distilled liquor and injurious to health and unfit for human consumption. It is further stated that the order of detention was made basing on the decision of this Court in Doddi Sharada v. Collector and District Magistrate wherein it was held that the opinion of the Analyst is paramount to determine whether the liquor seized would cause danger to the public health. The opinion of the Analyst that the liquor is not potable and unfit for human consumption is the relevant material to detain a person Hence it cannot be said that the order of detention is liable to be set aside on this ground. It is also further stated that in C.O.R.No. 19/2006-07 registered on 20-4-2006, the detenu was enlarged on bail on 21-4-2006; in C.O.R. No. 470/2006-07 the detenu was arrested on 29-12-2006 and was released on bail on 2-1-2007 and in C.O.R. No. 635/2006-07 the detenu was arrested on 12-3-2007 and was released on bail on 13-3-2007. As the said offences are bailable in nature, the detenu was enlarged on bail within one or two days of his arrest. It is further stated that the detention order was passed placing reliance on Sunila Jain v. Union of India wherein it was held that if a person had been released on bail on the ground that the offence is bailable it would not be necessary to bring the said fact before the detaining authority. The detaining authority will have to satisfy himself on the basis of the material placed on record as to whether the order of preventive detention should be passed against the detenu or not. The 2nd respondent had arrived at the subjective satisfaction on the basis of the Chemical Examiner's Report and the same were served on the detenu and it cannot be said that the order of detention is vitiated on the ground that the bail application and bail orders were not served on the detenu and it would affect the right to make an effective representation to the detaining authority and the Government. This is the stand taken by the 2nd respondent in the counter affidavit.