N.Y. Hanumanthappa, J.
1. The petitioner herein seeks a writ of Habeas Corpus to declare the detention of one Tirumalaraju Appala Krishnam Raju, S/o Narasimharaju, resident of Lova, Ranashalam Mandal, Srikakulam district as illegal and void.
2. The said Appalla Krishnam Raju was detained by the Collector and District Magistrate, Srikakulam in RC No.247/98/B4, dated 18-2-1998 under Section 3(1) and (2) read with Section 2(a) and (b) of A.P. Prevention of Dangerous Activities of Boot-leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (Act 1 of 1986), hereinafter referred to as 'Act 1 of 1986, on several grounds. The petitioner attacked the detention order on several grounds, the main among them are that (1) before passing the order of detention, the authority did not supply to the detenu the relevant material relied upon; (2) the grounds urged suffer from staleness as there is no proximity; (3) if the detenu has committed the offence if any as alleged in the grounds of detention, the detenu can be tried before appropriate forum and not by invoking the provisions of the Preventive Detention Act; (4) the order in question is not the result of the subjective satisfaction; (5) the acts referred to in the grounds do not attract the definition of public order and in no way disturb the even tempo of life; (6) in the order of detention no specific period of detention has been mentioned and lastly (7) in passing the order of detention there is inordinate delay between the date of incidents and the date of order of detention. As such the impugned order is vitiated.
3. On the other hand, Smt. K. Vijaya Laxmi, learned Government Pleader supported the order of detention. According to her non-specification of definite period of detention in the order is not fatal and it has not rendered the order illegal. To support this contention she placed reliance on a decision in "Ujagar Singh v. State of Punjab, , wherein the Supreme Court while dealing with Section 12 of Preventive Detention Act (1950) held as follows:
"Sec. 12. Preventive Detention Act does not require that the period of detention should be specified in the order itself where the detention is with a view to preventing any person from acting in any manner prejudicial to the maintenance of public order. The section itself provides that he can be detained without obtaining the opinion of an Advisory Board for a period longer than three months but not exceeding one year from the date of detention. Under Article 22(4)(a) read with Article 22(7)(a) of the Constitution, detention for more than three months can be justified either on the ground of an opinion of the Advisory Board sanctioning or warranting longer detention or on the ground that the detention is to secure the due maintenance of public order, in which case it cannot exceed one year in any event as stated in Section 12, Preventive Detention Act. It is thus clear that the period is not to exceed three months generally but may go up to one year in certain special cases. In view of these provisions, the non-specification of any definite period in the detention order is not a material omission rendering the order itself invalid."
For the same proposition she also relied on another decision of the Supreme Court in Golam Hussain v. Police Commissioner, Calcutta, AIR 1974 SC 1336, wherein the Supreme Court while dealing with Sections 3, 12 and 13 of the Maintenance of Internal Security Act, 1971, held as follows :
"Maintenance of Internal Security Act, 1971, Sections 3, 12 and 13 - Detention order - non-specification of any definite period of detention does not render the order illegal."
4. The learned Government Pleader farther urged that the grounds shall be taken into consideration while testing the correctness or otherwise of the detention order. It is sufficient if the authority is satisfied that the material placed before him is adequate to order detention.
5. Even single ground is sufficient to order detention if detention is necessary. To support this contention she placed reliance on a decision of the Supreme Court rendered in Asha v. Union of India, , wherein the Supreme Court while dealing with Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (52 of 1974) held as follows :
"Where order of detention was passed under Section 3(1) and the contraband articles alleged to be worth more than 1/2 crore of rupees had been received on the sea-shore at the back of the Raj Bhavan access to which place was only through the Raj Bhavan had allowed the truck to enter into the Raj Bhavan compound for the purpose of transporting the contraband articles it was held that it was up to the detaining authority to accept the statement of the employee and to be satisfied that such statement provided the link between the detenu and the receipt of the contraband articles and the bundle of facts relating thereto. This satisfaction was reached (sic) was quite possible that at a trial convict (sic) may not have been secured on the basis (sic) the statement of the employee. But the (sic) argument is not available for challenge (sic) an order of detention if the satisfactior(sic) the detaining authority has been reac(sic) on bona fide basis."
6. She also relied on a decisior (Sic) Saraswathi v. State of Kerala, AIR 1,(sic) SC 1165, wherein the Supreme Court while dealing with Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (52 of 1974) held as follows:
"Whether a single solitary Act attributed to a person is sufficient to warrant an interference that he will repeat his activity in future also, will depend on the nature of the act and attendant circumstances, might be an index of his future conduct.
In the present case, the detenu tried to export illegally Indian currency to the tune of Rs.2,88,900 to a foreign country in a planned and pre-meditated manner by clever concealment of it in several parts of his baggage. This fully justified the detaining authority in coming to the conclusion that the detenu might repeat his illegal act in future also and that his detention was necessary to prevent him from repeating the same in future."
7. Thus the learned Government Pleader maintained that there is no staleness or irrelevancy in the grounds which were made basis for the impugned order nor there is any arbitrariness in it, as contended by the learned Counsel for the petitioner. The acts of the detenu are prejudicial to the interests of the society and against public order. Thus, his detention is warranted. She also contended that it is not the act of the detenu that was detected on 9-7-1997 but the conduct of the detenu in involving similar acts subsequent to 9-7-1997 that compelled the Collector and District Magistrate to pass the detention order. Thus, she contended that the order of detention is in no way bad.
8. In order to understand the rival contentions of both the parties, we have to bear in mind what is public order, what is law and order and the difference between the two, when it can be said that an act of an individual or public at large will result in disturbance of public order, peace, tranquility and disturbance of even tempo of life.
9. Section 2A of Act 1 of 1986 defines the phrase 'acting in any manner prejudicial to the maintenance of public order' as follows :
'"acting in any manner prejudicial to the maintenance of public order' means when a boot-legger, 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 arc 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 or widespread danger to life or public health."
In the light of the above now we have to examine the validity of the grounds of detention referred. The grounds of detention reads as follows:
"(1) You, Tirumalaraju Appella Krishnam Raju S/o Narasimha Raju, aged 38 years, r/o Lova village of Ransthalam Mandal is a criminal and boot-legger.
(2) On 9-7-1997 at 9 p.m. the Prohibition and Excise Inspector, Deputy Commissioner of Prohibition and Excise Squad, Visakhapatnam had searched the H.No.2-117 and in your presence found and seized the following non-duty paid IML contraband bottles-
(i) 58 cardboard boxes, each containing 12 qts. of Super Master Whisky with Company lables and seals intact meant for sale in Madhya Pradesh only (696 bottles each bottle 750 ml.)
(ii) 3 cardboard boxes each containing 12 quarts of Gold Ribband Whisky with company lable and seal intact and meant for sale in Madhya Pradesh only (36 bottles each bottle 750 ml.)
(iii) 25 Cardboard boxes each containing 48 nibs of Super Master Whisky with company lable and seals intact and are meant for sale in Madhya Pradesh only (1200 bottles each bottle 180ml.)
(iv) 3 cardboard boxes each containing 48 nibs of Super Master Whisky of liquor with company lable and seal intact are meant for sale in Madhya Pradesh and also fake adhesive lables attached on the caps (Total No. of bottles 144 each bottle 180 ml.)
(v) 6 cardboard boxes each containing 48 nibs of Gold Ribband Whisky each containing 180 ml. of liquor with company lable and seals intact and it also for sale in Madhya Pradesh only (Total 288 bottles each bottle 180 ml.)
(vi) One gunny bag containing: (a) 10 quart bottles of Super Master Whisky with 750 ml. of liquor; (b) 12 qrt. bottles of Gold Ribband Whisky with 750 ml. in size (c) 48 nib bottles of Super Master Whisky with 180 ml. liquor and; (d) 42 nib bottles of Gold Ribband Whisky with 180 ml. of liquor all the above liquor bottles are having company lables and seals are intact are meant for sale in Madhya Pradesh only (Total 22 quarts each bottle 750 ml. 90 nibs each bottle 180 ml.)
(vii) 5 sheets of fake adhesive lables. Sheet No.1 containing 58 lables, Sheet No.2 with 37 lables. Sheet No.3 with 38 lables. Sheet No.4 with 30 lables. Sheet No.5 with eight lables meant for the affixation of these fake lables on the non-duty paid liquor within the A.P. State, bottles clandestinely imported from the Madhya Pradesh State.
All the above IML bottles are non-duty paid liquor meant for sale in Madhya Pradesh only.
(3) On interrogation you have confessed that you alongwith your partner Chadalavada Bhaskara Rao has purchased 150 cardboard boxes of liquor from N. Masthana Rao S/o Satyanarayana of Vijayanagaram Town for Rs. 1,05,000/- on equal share basis and you are selling the liquor bottles through Papuri Siva Rama Prasad who was paid salary of Rs.3,000/-per month for looking after this clandestine business.
(4) You further confessed that the owner of the house is related to you and Papuri Siva Rama Prasad corroborated your statement. Thus, you have caused heavy loss to the Government Revenue.
(5) You are also an IML Licensee of M/s. Bhaskara Wines, Pydibhimavaram and hence a case has been registered against you by the Prohibition & Excise Inspector, Srikakulam in PR Nos.1674 & 1675/96-97 under Section 8(b) of A.P. Prohibition Act of 1995.
(6) The Hon'ble High Court in WP No.28748/97 dismissed the appeal filed by you as there is no merit in the writ petition and upheld the cancellation of the licence, as a case was registered for involving the possession of non-duty paid liquor.
(7) The Chemical Examiner vide C.E. report No.695/97 items 17409 to 17416 and 17348 had opined that the samples bottles were analysed and are substandard Indian Made Liquor containing particles and they are injurious to health when consumed. Hence you are storing and selling the liquor which is not fit for human consumption by affixing fake adhesive lables, causing prejudicial to the public health.
(8) During the investigation, the SHO, Srikakulam recorded the statements of Sri Mainapu Tata of Pydibhimavaram and Sri Ch. Thavudu of Ranasthalam and they have stated that the accused was in the habit of selling non-duty paid liquor at cheaper rates to the village.
Thus you are contravening the provisions of A.P. Excise Act, 1968 and A.P. Prohibition Act, 1995.
Collector and District
10. It is nobody's case that dealing or selling of spurious liquor is not dangerous to public health. In fact this question had come up for consideration before this Court in B. Vijay Kumar v. Secretary to Government, GAD, Hyderabad, (DB), wherein the
Division Bench of this Court while dealing with Section 3(1) and (2) read with Section 2(a) and 2(b) of the Act 1 of 1986 held as follows:
"When the expert opinion is unambiguous 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. If the report is indicative of the fact that illicitly distilled liquor is unfit for human consumption, it impliedly means that consumption of such liquor would cause danger to life and public health. 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.
The phrase "acting in any manner prejudicial to the maintenance of public order" takes in its fold the activity of a boot-legger, a dacoit, a drug-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, 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 of 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.
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."
11. The proximity test though normally being invited to consider the correctness or otherwise of the detention order, but it can be said that there is no rigid mechanical rule. As such the proximity test shall be applied strictly as held by the Supreme Court in the case of Gora v. State of West Bengal, AIR 1975 SC 473, wherein the Supreme Court while dealing with Section 3(3) of Maintenance of Internal Security Act, 1971 held as follows:
"The test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention. It is a subsidiary test evolved by the Court for the purpose of determining the main question whether the past activities of the detenu is such that from it a reasonable progress can be made as to the future conduct of the detenu and its utility, therefore, lies only insofar as it subserved that purpose and it cannot be allowed to dominate or drown it. The prejudicial act of the detenu may in a given case be of such a character as to suggest that it is a part of an organised operation of a complex of agencies collaborating to clandestinely and secretly carry on such activities and in such a case the detaining authority may reasonably feel satisfied that the prejudicial act of the detenu which has come to light cannot be a solitary or isolated act, but must be part of a course of conduct of such or similar activities cladestimely or secretly carried on by the detenu and it is, therefore, necessary to detain him with a view to preventing him from indulging in such activities in the future."
12. Apart from explaining what is meant by public order or otherwise in the Act 1 of 1986, what is the public order and what is the law and order and when it can be said that the even tempo of life has been disturbed etc., the Supreme Court laid down in the case of Ram Manohar Lohia v. the State of Bihar, , wherein the Majority View of the Supreme Court as follows :
"Per Sarkar, J : It is common place that words in a statutory provision take their meaning from the context in which they are used. In the case of detention under Rule 30(1)(b), the context is the emergent situation created by external aggression. It would, therefore, be legitimate to hold that by maintenance of public order what was meant was prevention of disorder of a grave nature, a disorder which the authorities thought was necessary to prevent in view of the emergent situation. It is conceivable that the expression "maintenance of law and order" occurring in a detention order under Rule 30(1)(b) may not have been used in the sense of prevention or disorder of a grave nature. The expression may mean prevention of disorder of comparatively lesser gravity and of local significance only."
Per Hidayatullah & Bachawat, JJ : The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances."
Deprival of personal liberty is not for the reason that the person's presence of his activities tend to disturb 'law and order' but it shall be only when it disturbed the 'public order'. In other words, no action becomes one as affecting 'public order' unless it affects the even tempo of public life, the life of the community, even though it may create a situation of 'law and order'. A Division Bench of this Court while dealing with what is 'public order' and what is 'law and order' in Moganti Srihari Rao v. the Commissioner of Police, 1997 (1) ALT (Crl.) 755, relying upon the various decisions of the Supreme Court observed as follows :
"The principle laid down in the judgments of the Supreme Court shows that there are three circles one within each other : The law and order represents the largest circle, the next circle represents public order and the smallest circle represents the security of the State; and whether law and order is affected or public order is affected or security of the State is affected has to be decided as per the facts and circumstances of each case. There is vast distinction between public order and law and order. Every incident of law and order cannot be said to be incident of public order. Therefore, the Court has to decide taking the facts and circumstances of each case whether there is threat to maintenance of public order or not.''
13. On the points of stalcness, vagueness, proximity, non-application of mind, the effect of pending of criminal cases before other Court and whether the inclusion of an irrelevant ground vitiates the entirc order of detention, and when there shall be a detention, the Supreme Court and other Courts including this Court rendered number of decisions, and a few among them, are as follows : Shibban LAL v. State of U.P., ; Shiv Prasad v. State of M.P., ; P.
Mukherjee v. State of West Bengal, : A. Raja Reddy v. Collector & District Magistrate, 1996(4) ALD 1154.
14. In Shibban Lal's case (supra), the Supreme Court observed that if the grounds of detention arc more than one, and one or two grounds are state, vague or irrelevant or not amounting to disturbance of public order, then the entire order of detention shall have to be declared as illegal. The relevant portion is extracted herein:
'"Where however the Government itself while confirming the detention in exercise of its power under Section 11 admits that one of the two grounds mentioned in the original order is unsubstantial or non-existent, to say that the other ground, which still remains, is quite sufficient to sustain the order would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute. In such cases, the position would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole."
In Shiv Prasad's case (supra), the Supreme Court held that "grounds of detention must be pertinent and not irrelevant, proximate and not stale, precise and not vague. Irrelevance, stateness and vagueness are vices, any single one of which is sufficient to vitiate a ground of detention. And a single vicious ground is sufficient to vitiate an order of detention." In Mukherjee's case (supra), the Supreme Court while explaining the scope of public order held that the detention can be ordered to prevent subversion of 'public order' but not in aid of maintenance of 'law and order'. It also held that if one of the grounds are extremely, vague and not giving sufficient particulars, the same shall not be basis for detention. In Raja Reddy's case, a Division Bench of this Court while dealing with the effect of a criminal case wherein the detenu was involved, held as follows:
"A.P. Prevention of Dangerous, Activities of Boot-leggers, Dacoits, Drug-offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 - Section 3(2) -Detaining authority reciting in its order three criminal cases in which the detenu is said to be involved-cases relate to the period of 3 to 9 years prior to the date of order - No rational connection with the conclusion that the detention was necessary for maintenance of public order - Detention not valid."
15. The idea in imposing a restriction that the detaining authority should be careful and cautious in invoking preventive detention provisions, is only to explain that the citizen's personal liberty has been placed at a very high pedestal in our Constitution as explained by the Supreme Court in the case of Mohd. Subrati v. State of West Bengal, , wherein the Supreme Court held as follows:
"It must be remembered that the personal liberty of the individual has been given an honoured place in the fundamental rights which our Constitution has jealously protected against illegal and arbitrary deprivation and that this Court has been entrusted with a duty and invested with a power to enforce that fundamental right."
In the case of Moganti Srihari Rao, (supra), the Division Bench of this Court while referring to the right of 'personal liberty' observed as follows:
"In a Constitutional Democratic Republic where Life and Liberty of the Citizens are guaranteed as one of the Fundamental Rights, the Court has to always regard Personal Liberty as the most precious possession of the Citizens and whenever any order of illegal detention is brought to the notice of the Court, it has to be scrutinised with utmost care and the case has to be decided with utmost top priority. In this context, it is relevant to quote the observations of Bhagawati, J., in Ichudevi v. Union of India, :
''..The Court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegrade. This is an area where the Court has been most strict and scrupulous in ensuring observance with the requirements of law, and even where a requirement of the law is breached in the slightest measure, the Court has not hesitated to strike down the order of detention...'
..... personal liberty of a citizen is sacrosanct and the approach to the curtailment of the personal liberty is an idealistic one, as the loss of personal liberty deprives a man of all that is worth living for and builds up deep resentments. Therefore, the Courts have to scrutnise the cases giving paramount importance to the personal liberty."
16. As far as delay is concerned, normally any action to be taken under the Preventive Detention Act be within a reasonable time. But if the delay caused is not properly explained it will vitiate the proceeding as held by this Court in Tirumala Rao v. Collector and District Magistrate, 1986 (1) ALT 334 (DB) and Pinjari Hussain Sab v. District Collector, Anantapur, 1994 (1) ALT (Crl.) 332 (FB). In Tirumala Rao's case, the Division Bench while dealing with Section 2(a) read with Section 3(1) of Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 held as follows :
"The delay involved in the present matter is of such a nature that over a long period of 7 months no action has been taken to restrain the individual concerned from indulging in nefarious activities likely to prejudice the public interests. From this the only conclusion that can be drawn is that the activities of the detenu are not of a such serious nature which can warrant his detention under the provisions of the Prevention of Black Marketing and Maintenance of Essential Commodities Act, 1980. Therefore, primarily on the question of delay itself, the order of detention cannot be sustained in the eye of law".
In Pinjari Hussain Sab's case (supra) the Full Bench of this Court while dealing with Section 3(1)(a) and (b)(i) and (ii) and Article 22(5) of the Constitution of India held that unexplained delay of five months between the date of incident and the order of detention vitiates the order. However, to what extent the delay can be a ground either to sustain or to quash the detention order depends on the facts of each case and other circumstances existing therein.
17. Now we have to see whether the order of detention can be sustained in the light of principles laid down in the above decisions. From a reading of the grounds of detention and the order of detention dated 18-2-1998, one thing is clear that the incident happened on 9-7-1997 and the order of detention is on 18-2-1998. It is not the case of the authority that the articles were seized from the house of the detenue. It is mentioned that the articles were seized from the house bearing D.No.2.117, which, admittedly does not belong to the detenue. He is neither the owner nor the lessee of that house. To connect the detenu to the action in question is not substantiated. It is stated that for the alleged violation of the provisions of the Act, criminal cases are registered and they are pending. It cannot be disputed that the Collector after going through the material satisfied himself that the grounds urged are existing. But there is no proper explanation as to why he kept silent for a period of 7 months to pass detention order. Further the connection between the alleged detenu and others has not been established. Cancellation of licence or its challenge before this Court in W.P.No.28748/97 and rejection of the said writ petition cannot be a ground to warrant detention of the petitioner as the scope of this writ petition and the earlier writ petition No.28748/97 is altogether different. Violation of conditions of licence is different from the acts which are prejudicial to the interests of the society or acts which tend to impair the even tempo of public life. If one of the grounds is shown as irrelevant as held by the Supreme Court in the above decisions, the entire order deserves to be held as illegal. In the case on hand Ground No.4 is quite irrelevant. But the Collector while passing the order took into consideration the ground No.4 also.
18. Thus viewing from any angle, the order of detention suffers from arbitrariness, non-application of mind and contrary to Article 21 of the Constitution of India. As such the same deserves to be quashed.
19. Accordingly, the writ petition is allowed and the order of detention is quashed and now it is ordered that the detenu shall be set at liberty forthwith if he is not required in any other case.