Andhra HC (Pre-Telangana)
M. Laxmi Bai vs Commissioner Of Police And Ors. on 19 November, 2002
Equivalent citations: 2003(1)ALD35, 2003(1)ALT(CRI)181
JUDGMENT G. Yethirajulu, J.
1. The petitioner being the mother of the person by name Gopal Singh invoked the special jurisdiction of this Court through this writ of habeas corpus praying to direct the respondents to produce her son who is presently detained , in Central Jail, Chenchalguda before this Court and to order his release forthwith after declaring his detention as illegal and void.
2. In the affidavit filed in support of the petition the petitioner alleged that the 1st respondent passed an order under Section 3 (2) of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (A.P. Act No. 1 of 1986) ('the Act' for brevity) detaining her son Gopal Singh on the ground that he is a 'bootlegger' as defined in clause (b) of Section 2 of the Act and with a view to prevent him from acting in a manner prejudicial to the maintenance of public order in Hyderabad City. According to the petitioner, the said order was served on 29-6-2002 and representations were made to respondents 1 and 2 and also to the Advisory Board on 12-7-2002. The 2nd respondent rejected the said representation on 19-7-2002 and the Government of Andhra Pradesh confirmed the same on 10-8-2002. It is further alleged that the detention order was passed on the ground that the petitioner's son (detenu) was found transporting Illicit Distilled (ID) liquor packets on seven different occasions, crimes were registered and charge sheets were filed in all the cases and presently he is facing trial- The petitioner contends that the detention order was passed by the "authority in a mechanical manner on vague, irrelevant and non-existing grounds and the same is liable to be set aside.
3. The detention order passed by the 1st respondent, who is the detaining authority, on 28-6-2002 is supported by the grounds enclosed to it and the same, in brief, reads thus:
(1) On 17-2-2000 the detainee was found transporting 200 packets of ID liquor in the dicky of a scooter, that the said liquor packets were seized in Crime No. 66 of 2000 registered under Section 8(b) of the A.P. Prohibition Act, 1995 by the Police of P.S. Mangalhat. After an analysis of the samples taken from those packets the Assistant Director, A.P. Forensic Science Laboratories, Hyderabad reported that Item No. 1 of the sample contained 16.83% and Item No. 2 contained 16.50% of Ethyl alcohol and the samples were found to be illicitly distilled liquor.
(2) That on 17-2-2000 the detainee was found transporting 250 packets of ID liquor, that the Mangalhat Police seized the said liquor, took the samples and registered a case in Crime No. 246 of 2000 under Section 8(b) of the A.P. Prohibition Act, 1995 and on analysis by the Forensic Science Laboratory, Hyderabad the samples contained 27.96% of Ethyl alcohol and the samples were found to be illicitly distilled liquor.
(3) That on 2-11-2000 the detainee was found transporting 150 packets of ID liquor on a scooter in a plastic bag, that the Mangalhat Police seized the packets, took samples, arrested the detainee and registered a case in Crime No. 375 of 2000 under Section 8(b) of the A.P. Prohibition Act, 1995. On chemical analysis the samples were found to be containing 24.63% of Ethyl alcohol and the samples were found to be illicitly distilled liquor.
(4) That on 7-1-2001 the Mangalhat Police arrested the detainee while transporting 225 sachets of ID liquor, seized the same, took samples and registered a case in Crime No. 11 of 2001 under Section 8(b) of the A.P. Prohibition Act, 1995. On chemical analysis the samples were found to be unfit for potable purpose and that the strength of alcohol was 38.3 U.P. (5) That on 20-6-2001 the detainee was found transporting 200 packets of ID liquor on a scooter, that the Police of Mangalhat P.S. arrested him, seized the packets and took the samples and registered a case in Crime No. 165 of 2001 under Section 8(b) of the A.P. Prohibition Act, 1995. On chemical analysis the samples were found to be of ID liquor and that the strength of alcohol was 69.3 U.P. (6) That on 23-9-2001 the detainee was found transporting 190 packets of ID liquor and the Police of P.S. Mangalhat arrested him, seized the stock and took the samples of liquor for analysis and registered a case in Crime No. 279 of 2001 under Section 8(b) of the A.P. Prohibition Act, 1995. On chemical analysis the samples were found to be of ID liquor unfit for potable purpose and that the strength of alcohol was 75.6 U.P. (7) That on 17-4-2002 the detainee was found transporting 200 ID sachets on a scooter, the Police of P.S. Mangalhat seized the same, took samples and registered a case in Crime No. 158 of 2002 under Section 8(b) of the A.P. Prohibition Act, 1995. On chemical analysis the samples were reported to be ID liquor unfit for potable purpose and that the strength of alcohol was 89.4 U.P.
4. The 1st respondent further mentioned in the grounds of detention that as per the report of the chemical examiner, the ID liquor containing impurities in sufficiently large quantities affect all the systems in the body, paralyse nervous system and damage digestive system and greatly reduce the life-span of the person consuming ID liquor regularly. The opinion of the chemical examiner further discloses that the ID liquor containing so many deleterious substances is undoubtedly harmful to the public health and the regular consumption of such liquor results in premature deaths and that the poor labourers and the daily-wage earners are silently suffering by consuming the same.
5. The 1st respondent further stated in the grounds of detention that the detenu was found clandestinely indulging in acts of transporation/sale of ID liquor, the consumption of which is seriously injurious to public health and ultimately he passed the order, being satisfied that the provisions of the A.P. Act 1 of 1986 are attracted and invoked them with a view to prevent the detainee from acting in any manner prejudicial to the maintenance of public order.
6. In the light of the detention order passed by the 1st respondent-detaining authority, arguments of the learned Advocate General supporting the order of detention and the arguments of Sri C. Padmanabha Reddy, learned Senior Counsel appearing on behalf of the petitioner, the following points are taken up for consideration:
(1) Whether the transportation of ID liquor sachets by the alleged detenu do not attract the provisions of A.P. Act No. 1 ofI986?
(2) Whether the grounds mentioned in the detention order are stale and whether the non-bringing of the fact of the alleged detenu being released on bail to the notice of the detaining authority is a ground to quash the proceedings of detention?
Points :
7. In all the seven grounds there is a specific allegation that the detenu was found transporting ID liquor packets for sale. There is so much case law on this subject and we wish to refer to the principles laid down by the Apex Court and this Court in various judgments to test whether the principles laid down by the Courts are applicable to the facts of the case on hand.
8. If a bootlegger sells ID arrack, which contains harmful substances, certainly he can be detained on the ground that his activities constitute grave danger to life or public health. A person cannot be detained under Section 3(1) unless the acts in which he is indulging affect or likely to affect adversely to the maintenance of public order. If the chemical examiner's report does not disclose as to what is the permissible level of the fusil oil and impermissible limits so as to cause grave or widespread danger to life or public health, the detaining authority is not justified in ordering detention. Boya Chinna Subbarayudu v. The Collector and District Magistrate, Kurnool and Ors., (DB).
9. If the order of detention is not in accordance with law, it cannot be sustained and the same is liable to be quashed on the ground that there was no material to show that the contraband, if consumed, will result in grave or widespread danger to life or public health. Smt. Konala Syamala v. The Collector and District Magistrate, East Godavari District, (DB).
10. Unless the ID liquor being sold contains substances, which constitute grave danger to life or public health, order of detention is illegal. In the absence of specific allegation that the liquor seized from the detenu contained fusil oil or other impurities constituting grave or widespread danger to life or public health, the order of detention amounts to violation of fundamental rights of the detenu under Article 22 (5) of the Constitution and the same is liable to be quashed. N. Rami Reddy v. Government of A.P. represented by its Secretary, G.A. (Law & Order) Department, Hyderabad, (DB).
11. The legal position makes it clear that unless there is specific advertence in the grounds of detention that the seized ID liquor contains so many impurities resulting in widespread danger to life or public health, it is not open to the detaining authority to order detention under Section 3 of the Act
12. In the case on hand, in ground Nos.4 to 7 there is a mention that the report of the chemical examiner was to the effect that the samples are of ID liquor, which is unfit for potable purpose. In ground Nos. 1 to 3 there is a mention that the samples of ID liquor contained 16.83% and 16.5%, 27.96% and 24.63% of Ethyl alcohol respectively, which is beyond the permissible limit.
13. The detaining authority (1st respondent) enclosed a statement along with the detention order showing the list of copies of documents relied on by him at the time of passing the detention order. Though there is a mention about the reports of the chemical examiner in the said list of documents, along with other copies of documents, the same were not annexed to the detention order. The respondents neither produced the reports of the analyst nor made them available for verification of this Court. Be that as it may, the 1st respondent stated in the detention order that the detenu informed the police party that he purchased ID liquor packets from the manufacturers. It is however not disclosed as to whether the delenu informed the name of such manufacturer to the police, if so, who was the manufacturer and what was the place at which the manufacturing activity was going on. It is also not stated in the grounds of detention as to whether the detenu, who is alleged to have purchased the ID liquor packets from the manufacturers on various occasions, purchased the ID liquor packets from only one manufacturer or from different manufacturers and even there is no mention in the grounds as to whether any raids were conducted at the place of such manufacture. The Excise Officials have already registered seven crimes against the detenu, arrested him and produced before the concerned Magistrate and presently he is facing trial in all the cases. The detenu is released on bail in all the seven crimes. If the prosecution establishes that he is in possession of ID liquor packets, he will be convicted and directed to undergo the sentence.
14. Insofar as ground Nos. 1 to 3 stated in the detention order is concerned, though there is a mention that the percentage of Ethyl alcohol is high, it is not known whether there is any express opinion given by the chemical analyst that the samples collected in those crimes are injurious lo health and not potable for consumption. The detaining authority has also not specifically mentioned as to whether the chemical analyst opined-that the ID liquor seized is not potable and is injurious to health. On a perusal of these grounds it is found that the said seizure of ID liquor was in the year 2000 i.e., more than 1 1/2 year prior to the last seizure, which was about four months prior to the passing the order of detention. The ground Nos. 1 to 3 have therefore become stale.
15. In K. Aruna Kumari v. Govt. of A.P., , the Supreme Court held that if material and vital facts which would influence the mind of the detaining authority one-way or the other on the question whether or not to make the detention order, are not placed, it would vitiate the subjective satisfaction rendering the detention order illegal.
16. In Shivprasad Bhatnagar v. State of Madhya Pradesh, , the Supreme Court held as follows:
It is now well settled that grounds of detention must be pertinent and not irrelevant, proximate and not stale, precise and not vague. Irrelevance, staleness and vagueness are vices, any single one of which is sufficient to vitiate the ground of detention. And, a single vicious ground is sufficient to vitiate an order of detention.
17. The Supreme Court further held:
The second ground of detention suffers from both the vice of staleness because of the passage of time since the happening of some of the incidents, and the vice of irrelevance because they relate to 'law and order' and not to 'the maintenance of public order'. The detenu is therefore entitled to be released.
18. In A. Rajareddi v. The Collector and District Magistrate, Adilabad, 1996 (4) ALD 1154 = 1996 (2) ALD (Crl) 947 (AP) = 1996 (4) AET 305 (DB), a Division Bench of this Court held that the detaining authority has to prove that the detenu is continuously engaged in activities in a manner prejudicial to the maintenance of public order before ordering detention and an isolated incident cannot be made a basis to show the detenu as habitual offender and the order of detention passed by the authority in a mechanical manner without applying its mind to the facts of the case is unsustainable.
19. In the earlier judgments of this Court, which was referred supra, it is held that in the absence of a specific allegation that the ID liquor seized from the detenu contained fusil oil or other impurities constituting grave or widespread danger to life or public health, it is not open to the detaining authority to order detention under Section 3 of the Act. .But, the detaining authority is' not taking note of those observations and making efforts to get a detailed opinion from the chemical analyst to substantiate the wording used in his report as to whether there was certain percentage of fusil oil or other impurities in the ID liquor and whether they constitute a grave or widespread danger to life or public health. The detaining authority is not supposed to impose his own opinion regarding the contents of ID liquor. Therefore he has to rely on the reports of the analyst and when he is relying on such reports a sweeping allegation at the end of the grounds of detention generalising the method being adopted for the manufacturing of ID liquor that if anybody takes ID liquor with certain impurities they affect all the systems in the body, paralyse nervous system, damage digestive system etc., may not be sufficient to bring the detenu within the definition of the word 'bootlegger' as defined under Section 2(b) of the Act.
20. By passing an order of detention, the detaining authority is trying to catch a small fish, leaving the big fish free from any kind of action. Had the detaining authority detained the manufacturers of ID liquor, instead of chasing the sellers, it would have been appreciated. Unless there is an effort to find out the root cause and curb the same at the nip, booking of cases against those who are carrying ID liquor for statistical purpose is not likely to yield any result, since the manufactures are likely to allure others with attractive commissions etc., to continue their business unabated.
21. In the light of the above observations, we hold that the detention order passed by the 1st respondent is illegal and the same is liable to be quashed.
22. In the result, the writ petition is allowed. The detention order passed by the 1st respondent is quashed, as it is violative of the provisions of the Constitution of India. It is further ordered that the detenu shall be set at liberty forthwith, unless he is required in any other case.
No costs.