Andhra HC (Pre-Telangana)
Boya Chinna Subbarayudu vs The Collector And District Magistrate, ... on 17 October, 1994
Equivalent citations: 1994(3)ALT467, 1994(2)ANWR75, 1995CRILJ364
JUDGMENT M.N. Rao, J.
1. The petitioner, Boya Chinna Subbarayudu, is challenging in this writ petition the order passed by the District Collector and District Magistrate, Kurnool, the first respondent herein, on 13-7-1994 in Re. C1/2317/M/94 by which one Boya Naidu O. Boya Savenehu, the brother of the petitioner, was detained under section 3(2) of Act 1 of 1986 (A.P. Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986) "with a view to prevent the detenu from further acting in a manner prejudicial to the maintenance of public order." The State Government has confirmed the order of the District Collector and the Advisory Board has expressed the opinion after hearing the petitioner that in its opinion there is sufficient cause for the detention of the detenu in question. The period of detention as fixed by the Government under section 12 is one year with effect from the date of detention.
2. In support of the order of tthe detention, two grounds are mentioned by the detaining authority, a copy of which was supplied to the detenu. The two grounds are :
1. On 1-3-1994, the Enforcement Squad led by Excise Inspector raided a Venka on the South Eastern side of Isukapally village of Sirval Mandal and found 4 Iron Drums. One person stirring with his hand in one of the drums. The person fled on spotting the raid party. The Excise Constable, Sri Sunder Sekhar participating in the raids, identified the person as Boya Savenehu son of Boya Gangulaiah resident of Isukapally, aged about 30 years. On verification, each of the 4 drums found containing 200 litres (approximately) of fermented Jaggery wash, the wash was seized, samples were drawn and the wash destroyed. A case was registered under Section 34(a) of A.P. Excise Act, 1968 in Cr. No. 51/93-94 of Sirvel Excise Range. The Government Chemical Examiner for Excise, Regional Excise Laboratory, Kurnool reported that the sample is "FERMENTED WASH". The case is under investigation.
2. On 20-4-1994, raid party led by Assistant Excise Superintendent, Nandyal, raided Isukapally village and found you carrying a white can in front of your house. On verification the can was found containing 10 litres of illicitly distilled liquor. You were arrested and the contraband was seized. The case was registered under section 34(a) of A.P. Excise Act in Cr. No. 70/93-94 of Sirvel Range. You were remanded to Judicial Custody and later on released. The Government Chemical Examiner for Excise, Regional Excise Laboratory, Kurnool reported that the sample of the seized liquor is "ILLICITLY DISTILLED LIQUOR". The case is under investigation. The reports of the Government Chemical Examiner for Excise, Regional Excise Laboratory, Kurnool in respect of seized wash and illicit distilled arrack on the two occassions clearly indicate that they are "Fermented wash and illicitly distilled liquor" respectively and consumption of such arrack would cause harm to human health at large and thus affect adversely public order within the meaning of Section 2(a) of the A.P. Act No. I, 1986 read with explanation given thereunder.
3. The fermented wash referred to in ground No. 1, according to the Chemical Examiner's report "when chemically tested" disclosed :
1. Test for Ethyl Alcohol. .. Positive.
2. Test for Sugars. .. Positive.
With regard to the raid referred to in ground No. 2 the seized liquor according to the Chemical Examiner's report is illicitly distilled liquor and on subjecting the same to the chemical analysis, the test yielded the following :
1. Test for Ethyl Alcohol. .. Positive.
2. Test for Fusel Oil. .. Positive.
3. Test for Acidity. .. Positive.
4. In the counter-affidavit filed by the first respondent it is averred, inter alia, while adverting to the presence of fusel oil that "higher alcohols are the chief components of what is popularly known as fusel oil. Fusel oil contains besides higher alcohols substances like others and volatile oils. The higher alcohols act more strongly than ethyl alcohol on the nervous system of human beings and also tend to increase the action of ethyl alcohol. It is for this reason in the process of manufacture of spirits, the fusel oil, aldehydes, acids, others etc., are removed in the process of distillation to make the spirt more platable and less harmful. In the crude distillation process as is done in the preparation of I.D. Liquor, no care is taken in the fermentation process as well as in the distillation process. It is a very crude way of preparing liquor and distilled liquor contains all by products of fermentation, which are by themselves toxic and also add to the narcotic activity of alcohol. It is for this reason when there is no prohibition on the sale of arrack, the Government of Andhra Pradesh supplied to the consumers arrack prepared from rectified spirit which is free from fusel oil, aldehydes, acids etc. I submit that fusel oil is injurious to human health on consumption. It is therefore submitted that these incidents are relevant as they satisfy the requirement of Section 2(a) of the Act".
5. What is now sought to be explained in the counter affidavit with regard to the injurious effect of the fusel oil was not mentioned in the grounds.
6. Boot-legger is defined by Section 2(b) in the following terms :
"Boot-legger" means a person, who distils, manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxicating drug or other intoxicant in contravention of any of the provisions of the Andhra Pradesh Excise Act, 1968 and the Rules, notifications and orders made thereunder, or in contravention of any other law for the time being in force, or who knowingly expends or applies any money or supplies any animal, vehicle, vesel or other conveyance or any receptacle or any other material whatsoever in furtherance or support of the doing of any of the above mentioned things by himself or through any other person, or who abets in any other manner the doing of any such thing".
Everyone who answers the description of boot-legger cannot be detained preventively under the Act. The detaining authority must be satisfied that the detention is necessary with a view to preventing the person concerned from acting in any manner "prejudicial to the maintenance of public order" (vide Section 3(1)). The words "acting in any manner prejudicial to the maintenance of public order" are defined by Section 2(a) as meaning" when a boot-legger, a dacoit, a goonda, an immoral traffic offender or a land-grabber is engaged or is making preparations for engaging, in any of his activities as such, which affect adversely, or are likely to affect adversely, the maintenance of public order". The explanation to clause (a) of Section 2 says :
"For the purpose of this clause public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely inter alia, if any of the activities of any of the persons referred to in this clause directly, or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life or public health".
It is therefore clear that a person who is a boot-legger by reason of his indulging in acts in contravention of the provisions of the A.P. Excise Act, the rules and the notifications and the orders made under that Act cannot be detained under section 3(1) of the Act unless the acts in which he is indulging affect or likely to affect adversely the maintenance of public order. In other words only if the activities of the boot-legger cause "grave or widespread danger to life or public health", he can be detained, if a boot-legger sells illicitly distilled arrack which contains harmful substances, certainly he can be detained on the ground that his activities constitute grave danger to life or public health.
7. The question to be considered is whether a selling of illicit arrack itself is an act which constitutes a grave or widespread danger to life or public health ? In our view the answer must be in the negative; unless the arrack illicitly sold contains substances which constitute grave danger to life or public health, no order of detention can be issued under section 3 of the Act. With regard to the illicit arrack seized from the premises of the detenu as referred to in ground No. 2, the Chemical Examiner's report, as already stated supra, is to the effect that the test disclosed positive with regard to the presence of ethyl alcohol, fusel oil and acidity. The attempt in the counter-affidavit is that 'in the crude distillation process as is done in the preparation of I.D. liquor, no care is taken in the fermentation process as well as in the distillation process and therefore fusel oil is injurious to human health on consumption'. In the grounds of detention it is not mentioned that the presence of fusel oil in the seized illicit arrack would endanger human health. 'The Technical Excise Manual', a copy of which is placed before us by the learned Assistant Government Pleader representing the learned Advocate General, contains relevant information as to the characteristics of the fusel oil. This Manual, it is stated before us, is followed by the Excise Department. Paragraph 92 of the manual which bears the heading 'Higher alcohols' says :
"The principal higher alcohols occurring in potable spirits are amyl, butyl and prepyl. Others, such as caprise or hexyl, heptyl, eotyl, etc., occur in such minute amounts that they need not be considered for practical purposes. These higher alcohols are the chief, components of what is popularly know as fusel oil. .............. It is thus a very complex mixture Fusel oil is produced chiefly during fermentation. These higher alcohols are so called because in general they have higher densities and boiling points and more complex chemical composition than ordinary or ethylic alcohol. Small proportions of fusel oil are invariably present, being normal products of fermentation, and it is impossible to remove them entirely without destroying in the potable character of spirit. So that it is incorrect to talk of a potable spirit as being "quite free from fusel oil".
Paragraph 97 says that 'By-products are generally present in negligible quantities'. "Although most of them are very poisonous if separated out by themselves and given in sufficiently large amounts to a man or animal, yet in the proportion in which they are usually found in spirits their action is quite harmless".
8. Paragraph 104 bears the heading 'Prevention of excessive fusel-oil productions'. It says "Fusel oil is contrary to popular idea of little practical importance in Indian liquors. It is produced during fermentation chiefly, so that care as regards the details of fermentation is specially indicated. The employment of a doubler and rectifier are particularly useful in keeping back the higher boiling-point amyl and butyl alcohols; but have much less effect on the propyl alcohol, which passes over along with the ethyl alcohol, from which it is practically impossible completely to separate it."
9. From a reading of the relevant paragraphs of the Excise Manual it is clear that the presence of fusel oil in liquor by itself is not injuries to health. Only when fusel oil is separated from the liquor and consumed in large quantities either by human beings or animals, it will prove injurious. What is the permissible level of the fusel oil is not mentioned in the Excise Manual, nor do we get it from the report of the Chemical Examiner. Unless it is stated in the report of the Chemical Examiner that the seized liquor from the premises of the petitioner contained fusel oil in impermissible limits so as to cause grave or widespread danger to life or public health, the detaining authority will not be justified in ordering the detention on the ground that the detenu is acting in a manner prejudicial to the maintenance of public order.
10. As regards the seized "fermented wash" referred to in ground No. 1, it is not stated in the grounds that the end product which will ultimately emerge out of the fermented wash will contain fusel oil in impermissible limits and, therefore, the activity of the detenu is prejudicial to the maintenance of public order. As the statutory requirement in this regard has not been satisfied, the order of detention is vitiated.
11. Unless the grounds of detention specifically advert to the fact that the percentage of the fusel oil found in the seized liquor constitutes a 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. Since that has not been done, we are constrained to hold that the fundamental right of the detenu under Article 22(5) of the Constitution is violated.
12. In the result, the writ petition is allowed. The impugned order passed by the first respondent in Rc. C1/2317/M/94 is quashed. The detenu who is now detained in the District Jail, Secunderabad shall be released forthwith, unless his presence is required in connection with any other case.
13. Petition allowed.