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CASE NO.: Appeal (crl.)  436 of 2005

PETITIONER: The District Collector,Ananthapur & Anr.                                 

RESPONDENT: V. Laxmanna                                      

DATE OF JUDGMENT: 17/03/2005

BENCH: N. Santosh Hegde & S.B. Sinha

JUDGMENT: J U D G M E N T (arising out of SLP(Crl.)  No. 3255/03)

SANTOSH HEGDE,  J.

       Leave granted.  

       The grievance of the State Government in this appeal primarily  is that the High Court erred in quashing the detention order on the  ground that some of the instances relied upon by the detaining  authority be ing stale the entire detention order becomes invalid.  So  far as this grievance of the appellant-State is concerned the same  is  since addressed to by us in our judgment in the case of The Collector  & District Magistrate, W.G.Dist. Eluru, Andhra Pradesh & Ors.   Vs. Sangala Kondamma [2004 (10) SCALE  315]  wherein we have  held:

"thus, if the facts placed before the  detaining authority are proximate to each  other and the last of the fact mentioned is  proximate to the order of detention then the  earlier incident cannot be treated as stale and  the order cannot be set aside."           

The  principle extracted herein above from the case The Collector &  District Magistrate, W.G.Dist. Eluru, Andhra Pradesh & Ors.  (supra) applies to the facts of this case also.   

       In the above case of The Collector & District Magistrate, W.G.  Dist. Eluru, Andhra Pradesh & Ors. (supra) even though we held the  order of the High Court was unsustainable, we did not interfere with  the same for reasons mentioned therein. In the normal course, the  very same reasons would have been sufficient to dispose of this  appeal also without interfering with the order of the High Court.  

         But, Mr. M.N. Rao, learned senior counsel appearing for the  respondent submitted that there is another question of law which  requires consideration arising from the facts of this case which also  may be decided in this case since the same issue arises very often in  many detention matters arising out of the  Andhra Pradesh Prevention  of Dangerous Activities of Boot Leggers, Dacoits, Drug-offenders,  Goondas, Immoral Traffic Offenders and Land Grabbers Act,  1986  (the ’Act’) hence, he submitted that the same may also be decided in  this appeal itself because there is no  judgment of this Court on this  point. Ms. D.Bharathi Reddy, learned counsel for the appellant-State  concurs with the submission made by Mr. M N Rao.

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The contention of Mr. Rao is that under the Act it is only the    manufacture, transport and sale of arrack which is dangerous to  public health which alone would become an act prejudicial to the  maintenance of public order attracting the provisions of the Detention  Act. The detaining authority has to be satisfied on material placed  before it that the alleged manufacture, transport or sale of arrack was  unfit for human consumption and if it is based on that material, the  detaining authority wants to pass the order of detention then copies of  such material based on which he forms the opinion that the arrack so  sold by him is dangerous to public health, must also be given to the  detenu otherwise the detenu will not be in a position to make an  effective representation.  

The learned counsel appearing for the State contends that such  supply of material is not necessary because in the State of Andhra  Pradesh the sale of arrack itself is prohibited, therefore, under the  provisions of the Act, the manufacture, transport and sale of arrack is  prohibited and hence under the Act it is sufficient if the detaining  authority is satisfied that the detenu is indulging in such manufacture,  transport and sale of arrack and there is no need for him to come to  the conclusion that such arrack is dangerous to public health.  Consequently, it is not necessary for the detaining authority to give  materials based on which the detaining authority came to the  conclusion that the detention of the detenu on the ground that he is  manufacturing, transporting or selling arrack unfit for human  consumption is necessary.  

We do not think this argument of the learned counsel can be  accepted. If the detention is on the ground that the detenu is  indulging in manufacture or transport or sale of arrack then that by  itself would not become an activity prejudicial to the maintenance of  public order because the same can be effectively dealt with under the  provisions of the Excise Act but if the arrack sold by the detenu is  dangerous to public health then under the Act, it becomes an activity  prejudicial to the maintenance of public order, therefore, it becomes  necessary for the detaining authority to be  satisfied on material  available to him that the arrack dealt with by the detenu is an arrack  which is  dangerous to public health to attract the provisions of the  Act and if the detaining authority is satisfied  that such material exists  either in the form of report of the Chemical Examiner or otherwise  copy such material should also be given to the detenu to afford him  an opportunity  to make an effective representation.  

       Therefore, while holding that dealing with arrack which is  dangerous to public health would become an act prejudicial to the  maintenance of public order attracting the provisions of the Act.  It  must be held that it is obligatory for the detaining authority  to  provide the material on which it has based its conclusion on this  point.   Therefore, we are in agreement with the High Court that if the  detaining authority is of the opinion that it is necessary to detain a  person under the Act to prevent him from indulging in sale of goods  dangerous for human consumption the same should be based on some  material and the copies of the such material should be given to the  detenu.          For the reasons stated above this appeal fails and is dismissed.