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2011 DIGILAW 278 (AP)

P. Durga Rao v. State of Andhra Pradesh

2011-03-25

NOUSHAD ALI

body2011
JUDGMENT Noushad Ali, J. (1) The petitioner is the son of the detenue Smt. Polisetti Lakshmi, wife of late Kondaiah, resident of Ayyappanagar, Rajahmundry, East Godavari District. He has filed this Writ Petition seeking issuance of a Writ of Habeaus Corpus directing to set the detenue at liberty by setting aside the order of detention made by the 2nd Respondent-District Collector-cum-District Magistrate, East Godavari District in File Rc.No.C1(M)/496/2010, dated 22.06.2010, as confirmed by the State Government by orders in G.O.Rt.No.4063, General Administration (Law and Order.II) Department, dated 13.08.2010. (2) Activities alleged against the detenu as set out in the order of detention, dated 22.06.2010 are: The detenu was involved in committing the offences of possession, transport, sale of illicitly distilled liquor in contravention of Section 8 (3) read with Section 7-A of the A.P. Prohibition (Amendment) Act, 1997 and also abating the commission of the said Activities; that the said Activities are directly causing and calculated to cause widespread danger to public health and feeling of insecurity in the locality, Ayyappanagar; that therefore the detenue is a bootlegger within the meaning of Section 2 (b) of the Andhra Pradesh Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short 'Act 1 of 1986). Grounds of detention as set out, are briefly stated as follows: (i) On 01.09.2009 at about 4 PM the Prohibition and Excise Sub-Inspector, Rajahmundry North, along with the staff, arrested the detenue while in possession of 105 litres of illicitly distilled liquor (I.D. liquor) in front of her house in Ayyappanagar. The contraband was seized under a mediators report and samples of liquor were sent for chemical analysis. A case was registered in crime No.461/09-10, dated 01.09.2009 of Prohibition and Excise Station, Rajahmundry North, under Section 8 (e) read with Section 7-A of the A.P. Prohibition (Amendment) Act, 1997. The report C.E.No.1288/2009, dated 26.10.2009 revealed that the liquor was unfit for human consumption and injurious to health as it contained fusel oil and acids etc. (ii) On 27.04.2010 at about 6.30 AM the detenue was arrested while in possession of 10 liters of I.D. liquor near Sairam Milk Product Company, Ayyappanagar. A case was registered in Crime No.77/10-11, dated 27.04.2010 of Prohibition and Excise Station, Rajahmundry North under Section 8(e) read with Section 7-A of the A.P. Prohibition (Amendment) Act, 1997. (ii) On 27.04.2010 at about 6.30 AM the detenue was arrested while in possession of 10 liters of I.D. liquor near Sairam Milk Product Company, Ayyappanagar. A case was registered in Crime No.77/10-11, dated 27.04.2010 of Prohibition and Excise Station, Rajahmundry North under Section 8(e) read with Section 7-A of the A.P. Prohibition (Amendment) Act, 1997. The chemical analysis report C.E.No.449/2010, dated 20.05.2010 revealed that the liquor was unfit for human consumption and injurious to health. (iii) On 06.05.2010 at about 9 AM the detenue was again found to be in possession of 20 liters of I.D. liquor at the same place and the detenue was arrested and a crime No.119/10-11, dated 06.05.2010 was registered in the same station for the offences under Section 8(e) read with Section 7-A of the A.P. Prohibition (Amendment) Act, 1997. The chemical analysis report C.E.No.503/2010, dated 01.06.2010 revealed that it was unfit for human consumption and injurious to health. Charge sheets were filed against the detenue in all the aforesaid cases. (3) APART from the above Activities, the detenue was earlier detained under Preventive Detention Act, 2007 and as many as six crimes were registered during 13.04.2009 to 05.02.2010. (4) On the basis of the aforementioned grounds and the earlier detention and the material connected therewith as well as the medical opinion of Dr. B.Balaraju, Chief Physician, Professor and Head of the Department of Medicine, Osmania Medical College and General Hospital, Hyderabad, the 2nd Respondent came to the conclusion that the Activities of the detenue were affecting the community, creating a sense of insecurity and danger to life and health of public in the locality. The 2nd Respondent thus considering the grounds and the frequent involvement of the detenue in dealing with illicit liquor, passed orders of detention, dated 22.06.2010. The said order was approved by the State Government vide orders in G.O.Rt.No.3184, General Administration (Law and Order.II) Department, dated 28.06.2010. The Advisory Board constituted under Section 9 of the Act reviewed the case after affording opportunity to the detenue and submitted a report, dated 12.07.2010 justifying the detention. On a consideration of the same, the State Government in exercise of its powers under Sub-Section (1) of Section 12 read with Section 13 (Act 1 of 1986) issued orders in G.O. Rt. On a consideration of the same, the State Government in exercise of its powers under Sub-Section (1) of Section 12 read with Section 13 (Act 1 of 1986) issued orders in G.O. Rt. No.3561, General Administration (Law and Order-II) Department, dated 19.07.2010 confirming the detention directing that the detenue be continued under detention for a period of 12 months from the date of detention i.e., 22.06.2010. An application seeking review of the said order was also dismissed vide G.O.Rt.No.4063, dated 13.08.2010. The petitioner has thus filed this writ petition. Heard Sri K. Sarvabhouma Rao, learned counsel appearing on behalf of the petitioner and learned Assistant Government Pleader for the respondents. (5) The learned counsel for the petitioner raised the following contentions. 1. The Activities alleged against the detenue do not fall within the ambit of Section 2(b) or Section 3(1) of the Act 1 of 1986. 2. Power of the State Government to fix the period of detention although discretionary, should be exercised in a judicious manner, but it failed in discharging it by ordering detention for the maximum period of twelve months without assigning reasons. (6) In order to appreciate the contention whether the Activities alleged against the detenue fall within the ambit of Section 2(b) and 3(1) of the Act 1 of 1986, it is necessary to ascertain the meaning of "boot-legger" as defined in Section 2(b) of Act 1 of 1986, which reads as under. (6) In order to appreciate the contention whether the Activities alleged against the detenue fall within the ambit of Section 2(b) and 3(1) of the Act 1 of 1986, it is necessary to ascertain the meaning of "boot-legger" as defined in Section 2(b) of Act 1 of 1986, which reads as under. "Boot-legger" means a person, who distills, 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 there under, 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, vessel 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." A plain reading of the above definition shows that a person who indulges in the Activities, inter alia, of transporting, selling or distributing an intoxicant including liquor in violation of the provisions of A.P. Excise Act, 1968 and the rules, notifications made there under or in contravention of any other law for the time being in force is a "boot-legger". (7) A.P. Prohibition Act, 1995 (Act No.17 of 1995) has been enacted in public interest to bring about the prohibition of manufacture, sale and consumption of arrack and regulation of manufacture, sale and consumption of other intoxicating liquors in the State of Andhra Pradesh. Section 7of the said Act prohibits selling, buying, being in possession and consumption of liquor otherwise than in accordance with the provisions of the Act, or as the case may be. Section 7-A prohibits the production, manufacture, storage, possession, collection, purchase, sale and transport of arrack. Section 8 provides for punishment for violation of the provisions of Section 7 and 7-A. Clause (e) of Section 8 provides punishment by imprisonment for contravention of the provisions of Section 7-A. (8) In view of the absolute prohibition envisaged in Section 7-A, it is not permissible to possess, transport or sell illicitly distilled liquor. Section 8 provides for punishment for violation of the provisions of Section 7 and 7-A. Clause (e) of Section 8 provides punishment by imprisonment for contravention of the provisions of Section 7-A. (8) In view of the absolute prohibition envisaged in Section 7-A, it is not permissible to possess, transport or sell illicitly distilled liquor. In the instant case, the detenue was found in possession of I.D. liquor and was arrested for offences of transportation, possession and sale on three occasions i.e., on 01.09.2009, 27.04.2010 and 06.05.2010. Crime was, therefore, registered against the detenue under Section 8 (e) read with Section 7-A of the Act No.17 of 1995. It is therefore evident that the detenue is a boot-legger within the meaning of Section 2 (b) (Act 1 of 1986). It is true that a person cannot be detained merely because he is a boot-legger, unless he is acting in any manner prejudicial to the maintenance of the public order as provided in Section 3 of Act No.1 of 1986. (9) "ACTING in any manner prejudicial to the maintenance of public order" is defined in Section 2 (a) of Act 1 of 1986, which is as follows: "2. Definitions:-- In this Act, unless the context otherwise require :-- (a) "acting in any manner prejudicial to the maintenance of public order" means 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 affected 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 section thereof or a grave of widespread danger to life or public health;" (10) Thus, if any activity is causing or calculated to cause any harm, danger to the general public or cause a grave widespread danger to life or public health shall be deemed to affect public order. The grounds of detention in the instant case would disclose that the contraband seized from the detenue was found to contain organic acids, higher alcohols, aldehydes, furfural and other impunities, which are injurious to public health and unfit for human consumption. The contraband was manufactured by adopting crude and unscientific methods of using raw-material, such as black jaggery, aluminum, potassium sulphate which cause chronic diseases affecting public health and posing danger to life. More and more such Activities would lead to wide spread danger to life and public health. Thus, the Activities indulged by the detenue in dealing with the contraband unhesitatingly fall within the meaning of Section 2 (b) and scope of Section 3 (1) of Act 1 of 1986. It is the contention of the learned counsel for the petitioner that Section 13 vests discretionary power in the Government to fix the period of detention and hence such power should be exercised in a judicious manner, but the State Government failed in its duty in exercising its discretion and fixed the maximum period. The contention on behalf of the State, however, is that there is no discretion vested in the authority in the matter of fixing the period of detention and wherever detention is ordered, it should be for the maximum period of 12 months. (11) SEVERAL statutes provide for penalties prescribing minimum/maximum sentences/fines. Wherever such minimum and maximum sentences are prescribed, it is permissible to order sentence for the minimum or the maximum period as well. In all such cases it is not an invariable rule to order only the minimum sentence or the maximum sentence as the case may be. It can also be more than the minimum and less than the maximum period. Awarding of sentence depends on the facts and circumstances and gravity of a case. (12) It is therefore necessary to examine Section 13 to ascertain whether it vests any discretion. Section 13:- Maximum period of detention - The maximum period for which any person may be detained, in pursuance of any detention order made under this Act which has been confirmed under Section 12 shall be twelve months from the date of detention. The aforesaid provision has prescribed the maximum period but has not prescribed any minimum period of detention.