Andhra HC (Pre-Telangana)
B. Vijaya Kumar vs Secretary To Government, Government Of ... on 6 February, 1997
Equivalent citations: 1997(3)ALD266, 1997(2)ALD(CRI)116, 1997(2)APLJ68, 1997CRILJ2738
Author: Syed Shah Mohammed Quadri
Bench: B.S. Raikote, Syed Shah Mohammed Quadri
JUDGMENT Syed Shah Mohammed Quadri, J.
1. Balagani Srinivasa Rao s/o Venkata Subbaiah was ordered to be detained by the District Collector and the District Magistrate, Prakasam District, Ongole, in RC. No. 3018/96/C3, dated 11-12-1996 under Section 3(1) and (2) read with Section 2(a) and (b) of the Andhra Pradesh Prevention of Dangerous Activities of Boot-Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offencers and Land Grabbers Act, 1986 (for short 'the Act'). The petitioner, his brother, challenges the validity of that order as illegal, arbitrary, unconstitutional and violative of Arts. 19 and 21 of the Constitution of India and seeks a declaration that the order is bad in law and prays that the detenu be released forthwith by granting writ of habeas corpus.
2. The ground of detention is only one and that was served on the detenu immediately after passing of the impugned order. The ground of detention which is assaulted inter alia states that on 28-11-1996, the Inspectors and Sub-Inspectors of the task force, Prakasham District, on credible information, reached the house of the petitioner and during search of the house found 275 Bag Piper Whisky Bottles of 750 ml capacity, packed in 11 white ploythene bags, each containing 25 bottles. They were intended for sale in Maharashtra State. Sample for chemical analysis was drawn from the said bottles and sent to the Regional Laboratory, Guntur, for analysis. The report of the Analyst inter alia states that the sample is substandard Indian liquor in respect of alcoholic strength and it is unfit for human consumption as it contains fine suspended particles.
3. Two contentions are raised by Sri J. Venugopala Rao, learned counsel appearing for the petitioner. It is argued that inasmuch the report of the Analyst dated 7-12-1996 does not state that the liquor seized contains harmful substances which are injurious to public life, it cannot be said that it is a case of acting in a manner prejudicial to the maintenance of public order and that it can at best be violation of the provisions of the Act. In support of his contention, the learned counsel relied upon a judgment of the Division Bench of this Court in Boya Chinna Subbarayudu v. Collector and District Magistrate, Kurnool . In that case, against the detenu, an order of detention was passed on the ground that he was in possession of fermented wash and illicitly distilled liquor. The report of the Government Chemical Examiner for Excise was that it contains the following :-
"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."
It was contended therein that the presence of fusel oil indicated that it was dangerous to the public life. The Bench observed that what was the permissible level of the fusel oil was not mentioned in the Excise Manual. The Bench further observed that unless it was stated in the report of the Chemical Examiner that the seized liquor contained fusel oil in impermissible limits so as to cause grave or widespread danger to life or public health, the detaining authority would not be justified in ordering the detention on the ground that the detenu was acting in a manner prejudicial to the maintenance of public order.
4. The report of the Chemical Examiner in the present case is entirely different. Here in the opinion column of the report, it is mentioned that :
"the sample is sub-standard Indian liquor in respect of Alcoholic strength and it is unfit for human consumption as it contains lime suspended particles."
Therefore, that judgment, in our view, does not help the petitioner.
5. The learned counsel for the petitioner next relied on another judgment of a Division Bench of this Court in V. Narasamma v. Sub-Inspector of Excise (1995) 2 Andh LT 514 to which one of us (Syed Shah Mohammed Quadri, J.) was a member. In that case, in the grounds of detention it was stated that the liquor seized was substandard and unfit for human consumption. Applying Subbarayudu's case (supra) it was held that as nothing was mentioned in the order of detention as to the nature of the components in the spurious liquor and to what extent those materials would cause danger to the public health, the order of detention could not be sustained. We may refer to a recent judgment of the Division Bench of this Court in Writ Petition No. 22143 of 1996, D/- 26-11-1996 (Dhanraj Singh v. Government of Andhra Pradesh), to which one of us (Syed Shah Mohammed Quadri, J.) was member. There, the report of the Chemical Analyst was in the following terms : "the sample is illicitly distilled liquor, unfit for potable purpose." It was contended that as in the Narasamma's case, the report did not contain the recital that it was injurious and dangerous to public health, so Subbarayudu's case must be followed. The Bench distinguished the judgment in Subbarayudu's case and observed as follows :-
"...... It is now well settled that mere sale of illicit liquor, per se, does not satisfy the above requirement (See Mutakmiya Jabbarimiya Shaikh v. M. M. Menta (1994 (3) ALT 467). Therefore, unless the alleged activities result in grave or widespread danger to life or public health, the order of detention cannot be sustained. It is in this context that the observations of the Division Bench in Subbarayudu's case that is relied upon. It would be apt to refer to the facts in Subbarayudu's case. There the order of detention was passed on two grounds viz., (1) relating to possession and transporting of 'Fermented wash' and (2) relating to transporting of 'illicitly distilled liquor.' The report of the Chemical Examiner in that case indicated presence of 'fusel oil.' The Division Bench pointed out that the report of the Chemical Examiner did not indicate that 'fusel oil' was present in impermissible limits so as to cause grave or widespread danger to life or public health in the 'fermented wash' and 'illicitly distilled liquor.' That case is clearly distinguishable from the facts of the present case. In this case, the report of the Government Chemical Examiner of Prohibition and Excise, Regional Prohibition and Excise Laboratory, Hyderabad contains the following remarks :-
"The sample is illicitly distilled liquor unfit for potable purpose."
The same remarks are noted in all the three cases (instances) referred to above. It is true that the report does not contain the words "'fusel oil' is in impermissible limits so as to cause grave or widespread danger to life or public health" as pointed out by the Division Bench. The observations of the Division Bench have to be understood in the light of the circumstances of that case. In our view, where the report of the Chemical Examiner states that the illicitly distilled liquor is unfit for potable purpose, it has to be implied that if such an illicitly distilled liquor is consumed, it causes grave or widespread danger to life or public health. It cannot be emphasised that if such illicitly distilled liquor is sold in any part of the State, the danger is widespread and grave as it is not fit for potable purpose. Therefore, in our view, merely because the report does not contain the words that 'the illicitly distilled liquor would cause grave and widespread danger to life and public health,' it cannot be held that such a liquor would not result in widespread danger to life and public health. The said expression is not a formula which should be found in every report. If the report is indicative of the fact that the illicitly distilled liquor is unfit for potable purpose, it impliedly means that consumption of such a liquor would cause danger to life and public health. For the above reasons, we are unable to accept the first contention of the learned counsel for the petitioner."
6. The observation that the opinion of the expert should indicate that the liquor would cause widespread danger to life or public health, in terms of the judgment in Subbarayudu's case referred to supra, was for the reason that no opinion was expressed as to whether the seized liquor was fit for human consumption. When the expert opinion is unambigious and specific that it is unfit for human consumption, it is implied that the liquor would cause widespread danger to life or public health. It cannot be gainsaid that liquor unfit for human consumption would necessarily cause grave and widespread danger to life or public health if it is allowed to be sold in the State and consumed by the public at large. We are in agreement with the observation made in Dhanraj's case that if the report is indicative of the fact that illicitly distilled liquor is unfit for human consumption, it impliedly means that consumption of such a liquor would cause danger to life and public health. Following the judgment in Dhanraj's case, we are of the view that absence of the words 'liquor is dangerous and injurious to the public health' in the report would not militate against the seized liquor, in the instant case, not having the effect of being prejudicial to the maintenance of public order.
7. It is next argued that the ground of detention was only one and therefore the requirement of the phrase in the definition of Clause 2(a) of the Act is not satisfied. We shall now read Section 2(a) :-
"(a) "acting in any manner prejudicial to the maintenance of public order" means when a bootlegger, a dacoit, a drug-offender, 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 :
Explanation :- 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 action thereof or a grave or widespread danger to life or public health."
From a plain reading of the definition, it is clear that the phrase "acting in any manner prejudicial to the maintenance of public order" takes in its fold the activity of a boot-legger, a docoit, a drug-offender, a goonda, an immoral traffic offender or a land grabber, who is engaged or is making preparation for engaging any of its activities as such which affect adversely or likely to affect adversely the maintenance of public order. The explanation appended to the above definition clarifies that for the purpose of Clause 2(a), '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 person referred to in the said 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. What Mr. Venugopala Rao contends is both in Clause 2(a) as well as in the explanation, the word used is 'activities' and in the instant case there is only one act or activity, therefore, neither Clause 2(a) nor explanation would cover the situation. We are afraid we cannot accede to the contention of the learned counsel. Doing so, would be doing violence to the language of the explanation, for in the explanation, it is clearly mentioned 'if any of the activities' and this is to clarify the phrase or the word 'activity' used in Clause 2(a). This can only mean that even a single activity of a person referred to in Clause 2(a) would have the effect of acting in any manner prejudicial to the maintenance of public order. Even a single activity which falls within Clause 2(a) would be enough to bring the case within the ambit of Section 3(1) of the Act.
8. For the above reasons, we find no merit in the writ petition and it is accordingly dismissed. No costs.
9. Petition dismissed.