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2023 DIGILAW 914 (AP)

Kadavala Bapanamma v. State of Andhra Pradesh

2023-06-20

CHEEKATI MANAVENDRANATH ROY, TARLADA RAJASEKHAR RAO

body2023
ORDER : 1. The writ petition for Habeas Corpus is filed to direct the 4th respondent to produce the detenue viz. Palika Chinna Papa W/o Ramana, who is the daughter of the petitioner, now detained in the Special Prison for Women, Rajamahendravaram, East Godavari District, as per the impugned detention order, dated 21.01.2023, passed by the 2nd respondent on the ground that she is involved in 5 cases registered under the Andhra Pradesh Excise Act, 1968, and set aside the impugned order of detention, dated 21.01.2023 passed by the 2nd respondent and set her at liberty. 2. Heard learned counsel for the petitioner and learned Government Pleader attached to the office of learned Additional Advocate General, appearing for the respondents. 3. The petitioner is the mother of Palika Chinna Papa W/o Ramana, who is now lodged in Special Prison for Women, Rajamahendravaram. About 5 cases were registered against her under Sections 7 (A), R/W 8 (E) of the Andhra Pradesh Prohibition (Amendment) Act, 2020. The details of the said crimes registered against her are as follows: S. No. Cr. No. and Date I.D. Liquor seized Gist of C.E. opinion C.E. Report and Date and Sample No. Stage of the Case 1. Cr. No. 107/2022, Dated 20.01.2022, U/Sec 7-B r/w 8-B of Andhra Pradesh Prohibition (Amendment Act. No. 18 of 2020 of SEB, Station, RJVM South. 30 Ltrs of ID Liquor Illicitly Distilled liquor, Unfit for human consumption and injurious to health C.E. No. 326/2022, Dated 15-02-2022 in S. No. 7251 CC No is awaited 2. Cr. No. 268/2022, Dated 26.02.2022, U/Sec 7-B r/w 8-B of Andhra Pradesh Prohibition (Amendment Act No. 18 of 2020 of SEB, Station, RJVM South. 05 Ltrs of ID Liquor Illicitly Distilled liquor, Unfit for human consumption and injurious to health C.E. No. 528/2 022, Dated 08.03.2022 in S. No. 10063 CC number is awaited 3. Cr. No. 345/2022, Dated 13.03.2022, U/Sec 7-B r/w 8-B of Andhra Pradesh Prohibition (Amendment Act No. 18 of 2020 of SEB, Station, RJVM South. 25 Ltrs of ID Liquor Illicitly Distilled liquor, Unfit for human consumption and injurious to health C.E. No. 774/2022, Dated 25-03-2022 in S. No. 11955 CC number is awaited 4. Cr. No. 405/2022, Dated 30.03.2022, U/Sec 7-B r/w 8-B of Andhra Pradesh Prohibition (Amendment Act No. 18 of 2020 of SEB, Station, RJVM South. 25 Ltrs of ID Liquor Illicitly Distilled liquor, Unfit for human consumption and injurious to health C.E. No. 774/2022, Dated 25-03-2022 in S. No. 11955 CC number is awaited 4. Cr. No. 405/2022, Dated 30.03.2022, U/Sec 7-B r/w 8-B of Andhra Pradesh Prohibition (Amendment Act No. 18 of 2020 of SEB, Station, RJVM South. 10 Ltrs of ID Liquor Illicitly Distilled liquor, Unfit for human consumption and injurious to health C.E. No. 1036/ 2022, Dated 02.05.2022 in S. No. 15790 CC Number is awaited 5. Cr. No. 16/2023, Dated 16.01.2022, U/Sec 7-B r/w 8-B of Andhra Pradesh Prohibition (Amendment Act No. 18 of 2020 of SEB, Station, RJVM South. 20 Ltrs of ID Liquor Illicitly Distilled liquor, Unfit for human consumption and injurious to health C.E. No. 123/2 023, Dated 17.01.2023 in S. No. 792 and 793 Case is UI 4. Alleging that the detenue is indulging in illicit manufacturing of liquor and transportation and sale of the same and that the said acts of the detenue, daughter of the petitioner, in repeatedly resorting to commission of the said crimes are prejudicial to the maintenance of the public order and also that it is causing grave and widespread danger to life or public health, the Collector and District Magistrate, East Godavari District, Rajamahendravarm, has passed an order of detention against her under Section 3(2) of the Prevention of Dangerous activities of Bootleggers, Dacoits, Drug offenders, Goondas, Immoral Traffic offenders and land Grabbers Act, 1986 (for short “the Act”). Thereafter, the said order was confirmed by way of issuing G.O.Rt.No. 576, dated 27.03.2023. 5. Aggrieved by the said detention orders that are passed against the detenue, daughter of the petitioner, the petitioner is before this Court challenging the legal validity of the said detention order passed against her daughter and the said G.O that was issued, which is now impugned in this writ petition. 6. Learned counsel for the petitioner would submit that mere registration of 5 crimes under Section 7 (A) and 8(E) of A.P. Prohibition Act, by itself is not sufficient to pass an order of detention under the aforesaid Act and it must be invariably further shown that the alleged acts of the detenue are prejudicial to the maintenance of public order or that it is causing grave or widespread danger to life or public health. He would submit that there is absolutely no material on record to show that the acts of the detenue is causing any grave or widespread danger to life or public health or prejudicial to the public order. He would submit that mere manufacturing and transporting or dealing with the illicit liquor by itself do not amount to causing any grave or widespread danger to life or public health as held by the Division Bench of the erstwhile, High Court of Andhra Pradesh in the case of Boya Chinna Subbarayudu vs. The Collector and District Magistrate, Kurnool and Others, 1995 (1) ALT (CRL) 58 (DB). Therefore, he would vehemently contend that the impugned order of detention that was passed against the detenue and the G.O that was issued are illegal and unsustainable and they are liable to be set aside. 7. Per contra, learned Government Pleader appearing for the respondents would submit that admittedly the detenue is involved in 5 crimes and they were registered against her under Sections 7 (A), R/W 8 (E) of Andhra Pradesh Prohibition (Amendment) Act, 2020, which clearly indicates that she is habituated in transporting and dealing with the illicit liquor and the said transportation and dealing with the illicit liquor would cause grave and widespread danger to the life of the public. Therefore, considering the said conduct of the detenue in indulging in the acts of transporting and dealing with the illicit distilled liquor, as it would likely to cause harm to the health of the public that the impugned order of the detention was passed by the competent authority, as the detenue clearly comes within the definition of “Bootlegger” as defined under Section 2(b) of the Act. He would further contend that the analyst report filed in all the above crimes clearly indicates that the said illicit distilled liquor is unfit for human consumption and injurious to health. Therefore, he would contend that the said analyst report bears ample testimony of the fact that the said acts of the detenue in transporting and dealing with the illicit liquor is causing widespread danger to the health of the public. He would submit that the Division Bench in the above reported case did not discuss the said issue. He would submit that the said judgment is of no help to the present case. He would submit that the Division Bench in the above reported case did not discuss the said issue. He would submit that the said judgment is of no help to the present case. So, he strongly supported the impugned order of detention and prayed for dismissal of the writ petition. 8. We have carefully gone through the earlier judgment of the Division Bench of the erstwhile High Court of Andhra Pradesh. The facts of the said case are almost similar to the present case on hand. In the instant case, on the sole ground that the detenue was involved in 5 crimes registered under Sections 7 (A), R/W 8 (E) of Andhra Pradesh Prohibition (Amendment) Act, 2020, in transporting and dealing with the illicit distilled liquor which may likely to cause harm to the health of the public, the impugned detention order was passed against her. No doubt, on account of the fact that about 5 crimes under Sections 7 (A), R/W 8 (E) of Andhra Pradesh Prohibition (Amendment) Act, 2020 were registered against her, the detenue comes within the definition of “Bootlegger” as defined under Section 2 (b) of the Act. But, that by itself is not sufficient to pass an order of detention against her under the said Act. It must be further shown that on account of the alleged acts committed by her, there is likelihood of affecting the public health and safety or the maintenance of public order. 9. In the above reported judgment of the Division Bench, it is held as follows: “6. 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)). 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.” 10. 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.” 10. Thus, the Division Bench clearly held that 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 prevent the person concerned from acting in any manner “prejudicial to the maintenance of public order.” 11. Then, the Division Bench proceeded to examine the analyst report that was filed in the said case to ascertain whether mere presence of potable spirits like amyl, butyl and propyl and fusel oil by itself would cause harm or likely to cause harm to the health of the public justifying passing of any such detention order under the Act or not. 12. After considering the Excise Manual, the Division Bench at Para No. 10 of the judgment held as follows: “10. 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 detenue is acting in a manner prejudicial to the maintenance of public order.” 13. Then at Para No. 12 of the judgment, it is held as follows: “12. 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.” 14. 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.” 14. Finally, the Division Bench has quashed the order of detention and ordered for release of the detenue therein. 15. Further, the Apex Court also in the case of Munagala Yadamma vs. State of Andhra Pradesh, 2012 (2) SCC 386 held at Para 9 as follows: “9. No doubt, the offences alleged to have been committed by the appellant are such as to attract punishment under the Andhra Pradesh Prohibition Act, but that in our view has to be done under the said laws and taking recourse to preventive detention laws would not be warranted. Preventive detention involves detaining of a person without trial in order to prevent him/her from committing certain types of offences. But such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes which the detenu may have committed. After all, preventive detention in most cases is for a year only and cannot be used as an instrument to keep a person in perpetual custody without trial. Accordingly, while following the three- Judge Bench decision in Rekha Case (2011) 5 SCC 244 : (2011) 2 SCC (Cri) 596 we allow the appeal and set aside the order passed by the High Court dated 20-7-2011 and also quash the detention order dated 15-2-2011, issued by the Collector and District Magistrate, Ranga Reddy District, Andhra Pradesh.” 16. In the above reported judgment before the Hon’ble Apex Court also as per the facts of the said case, the alleged detenue was also found to have been involved in several cases registered under Sections 7 (A), R/W 8 (E) of Andhra Pradesh Prohibition (Amendment) Act, 2020, pertaining to illicit distilled liquor. However, the Apex Court after considering the ratio of the law laid down by the earlier three judge bench in Yumman Ongbi Lembi Leima vs. State of Manipur and Others held that the personal liberty of an individual is the most precious and guaranteed under Part- III of the Constitution of India. However, the Apex Court after considering the ratio of the law laid down by the earlier three judge bench in Yumman Ongbi Lembi Leima vs. State of Manipur and Others held that the personal liberty of an individual is the most precious and guaranteed under Part- III of the Constitution of India. The State has been granted the power to curb such rights under criminal laws, as also under the laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public order, warranting issuance of such an order. 17. The Apex Court ultimately quashed the order of detention passed on the basis of mere registration of certain cases under the Andhra Pradesh Prohibition Act relating to illicit distillation of liquor. 18. In the present case also, as can be seen from the analyst report, it is only stated that ethyl alcohol, fusel oil are present in the illicit distilled liquor. It is not stated that impermissible limit of fusel oil is present in the said illicit distilled liquor that was subjected to test in the said case. As already noticed supra, the Division Bench after considering the Excise Manual held that mere presence of fusel oil to a certain limit by itself will not cause any widespread harm or danger to the health of the public. Further held that it is only when it is separated from the liquor and consumed in large quantities by the human beings, then only it would be injurious to the health of the human beings. Therefore, the opinion of the analyst furnished in the analyst report that the illicit liquor is injurious to health cannot be the sole basis to order for preventive detention of the detenue, under the Act. 19. The judgment of the Apex Court relied on by the learned Government Pleader for respondents on facts is distinguishable and it is not applicable to the present facts of the case. There is no dispute with regard to the legal position that the order of detention can be passed before initiating the prosecution or during the prosecution or subsequent to the prosecution of an individual. There is no dispute with regard to the legal position that the order of detention can be passed before initiating the prosecution or during the prosecution or subsequent to the prosecution of an individual. If it is ultimately found that his acts are prejudicial to the maintenance of public order or that it would have the effect of causing harm to the public life and health, order of preventive detention can be passed. Therefore, the ratio laid down in the aforesaid judgment is of no use to the case of the respondents. 20. After considering the material on record and reasons assigned in the impugned order of detention, we are of the opinion that the acts of the detenue in indulging in transportation and dealing with illicit liquor by itself is not sufficient to detain her preventively under the provisions of the Act. The respondents have miserably failed to substantiate their version that the acts are prejudicial to the maintenance of public order or that it is causing grave and widespread danger to the life and health of the public. 21. Therefore, in the said facts and circumstances of the case, the impugned order of the detention passed against the detenue, is clearly unsustainable under law and it is liable to be set aside. 22. It is relevant to note that the liberty of a citizen is a precious right conferred on him under Article 21 of the Constitution of India and he cannot be deprived of the said liberty, what is guaranteed under Article 21 of the Constitution of India by an illegal order of detention, when the same is not satisfying the requirements contemplated under Section 3 of the Act. So, the impugned order is liable to be set aside. 23. Resultantly, the Writ Petition is allowed. The impugned order of detention is set aside. The daughter of the petitioner viz. Palika Chinna Papa W/o Ramana, who is now detained in the Special Prison for Women, Rajamahendravaram, East Godavari District, shall be released forthwith, unless she is required in connection with any other crime. There shall be no order as to costs. 23. Miscellaneous petitions, if any pending, in the Writ Petition, shall stand closed.