IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT: THE HON'BLE MR JUSTICE D.S.R.VARMA and THE HON'BLE MR JUSTICE K.C. BHANU WRIT PETITION NO : 11547 of 2008. DATED: -07-2008. Between: Smt. Appilisetti Lakshmi, w/o Appilisetti Ramana Aged 35 years, R/o Bhennabhupalapatnam village, Rolugunta Mandal, Visakhapatnam District. ..... PETITIONER AND 1.The Govt. of A.P., rep. by its Chief Secretary, General Administration, (Law & Order-II) Department, Secretariat Buildings, Hyderabad 2.The Collector and District Magistrate, Visakhapatnam, Visakhapatnam District. . 3.The Superintendent, Central Jail, Chenchal Guda, Hyderabad. .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ of Habeas Corpus or any other appropriate Writ, Order or direction to produce the body of Appilisetti Ramana, now detained in Central Prison, Chenchalguda, Hyderabad before this Court and set him at liberty forthwith and to pass such other order or orders. Counsel for the Petitioner: MR.T. NIRANJAN REDDY Counsel for the Respondents: THE ADVOCATE GENERAL The Court made the following : ORDER: (per the HON’BLE SRI JUSTICE K.C.BHANU) This Writ Petition, under Article 226 of the Constitution of India, is filed to issue a writ of Habeas Corpus, directing the respondents to produce the body of Appilisetti Ramana, now detained in Central Prison, Chenchalguda, Hyderabad before this Court and set him at liberty forthwith, after declaring his detention as illegal and void. 2. The brief facts that are necessary for disposal of this Writ Petition may be stated as follows. The petitioner herein is the wife of Appilisetty Ramana (hereinafter called as ‘the detenu’), who is lodged in Central Prison, Chenchalguda, Hyderabad by order of detention, dated 19-04-2008 passed under Section 3 (1) & (2) R/w Section 2(a) & (b) of the A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short, ‘the Act, 1986’). The 2nd respondent ordered detention of the detenu on the ground that his activities are prejudicial to the maintenance of the Public Order and it is necessary to prevent him from acting further as such by directing the said person to be detained. The said order was approved by the Government in G.O.Rt.No.2466, dated 28-04-2008, and it was also confirmed by the Advisory Board. The said order of detention is now challenged in this Writ Petition on the ground that it was passed without application of mind on vague, irrelevant and non-existent grounds, which resulted in violation of the provisions of the Constitution of India. 3. Learned counsel appearing for the petitioner contended that there was no subjective satisfaction reached by the detaining authority while passing the order, that the grounds mentioned in the order are vague and are not substantiated by any material, that in support of the ground No.1, the detaining authority has not supplied the material, that the alleged acts do not in any manner prejudicial to the maintenance of the public health and order, that there was no whisper in the impugned order that there was possibility of the accused being released on bail, that as a matter of fact, no bail application was moved in Cr.No.4/2008- 09 and hence, he prays to set aside the impugned order. 4. On the other hand, learned counsel representing the Advocate General contended that the detenu was involved in transportation of Ganja, which is a prohibited Psychotropic Substance, that the existing laws failed to have any desired impact on his clandestine, bootlegging activities and therefore the acts of the detenu are dangerous to public health and prejudicial to the maintenance of public order, that the impugned order has been passed after following the statutory provisions, that the said order does not suffer from any infirmities so as to call for interference by this Court and hence, he prays to dismiss the Writ Petition. 5. Both sides relied upon various decisions, which will be referred to at appropriate time. 6. It is well settled that preventive detention is resorted to, when the Executive is convinced that such detention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain objects which are specified by the law concerned. Satisfaction of the detaining authority is considered to be of primary importance with great latitude in exercise of its discretion. The crucial question to be decided in this case is whether the alleged activities of the detenu are prejudicial to the public order, which affect the community or public at large. 7. Basically the object of preventive detention is an anticipatory measure and does not relate to an offence. It is not punitive, but only a preventive. Preventive detention, being necessary, to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability, etc. 8. The Apex Court drew a distinction between the ‘public order’ and ‘law and order’, in a decision in COMMISSIONER OF POLICE & OTHERS V. C.ANITA[1], wherein it is held thus: (para No.10). “ “Public order”, “law and order” and the “security of the State” fictionally draw three concentric circles, the largest representing law and order, the next representing public order and the smallest representing security of the State. Every infraction of law must necessarily affect order, but an act affecting law and order may not necessarily also affect the public order. Likewise, an act may affect public order, but not necessarily the security of the State. The true test is not the kind, but the potentiality of the act in question. One act may affect only individuals while the other, though of a similar kind, may have such an impact that it would disturb the even tempo of the life of the community. This does not mean that there can be no overlapping, in the sense that an act cannot fall under two concepts at the same time. An act, for instance, affecting public order may have an impact that it would affect both public order and the security of the State.” From the above, it is clear that distinction between law and order and public order lies not merely in the nature and quality of the acts but in the degree and extent of its breach upon the society. 9. As seen from the impugned order, it is clear that on 16-01-1998, the detenu was found in possession of 40 Kgs of Dry Ganja in 5 bags and he was convicted and sentenced to undergo imprisonment for three months and to pay a fine of Rs.500/-. Again on 19-12-2003, while he was transporting 60 Kgs of Dry Ganja, he was arrested and sent to judicial custody and he was granted bail in that case. On 18-11-2004, while he was transporting 22 Kgs of Ganja, he was arrested and sent to judicial custody and he was released on bail. In that case, he was acquitted. On 19-01-2006, he was found in possession of 22 Kgs of Dry Ganja in 3 bags. In that case, he was released on bail and the case ended in acquittal. On 02-03-2007, he was found in possession of 45 Kgs of Dry Ganja. He was arrested and sent to judicial custody and he was released on bail. The case is under trial. On 12-12-2007, he was found in possession of 29 Kgs of Ganja and he was released on bail. On 20-03-2008, while he was about to transport 10 gunny bags having 400 Kgs of Dry Ganja, he was arrested and sent to judicial custody. On 04- 04-2008 while he was transporting 134 Kgs of Ganja along with two other persons, the other two persons were arrested, but he ran away from the scene of occurrence. Intelligence received from Excise and Revenue Department clearly shows that the detenu is the kingpin for the entire clandestine activity of smuggling racket of Ganja from Bheennabhupalapatnam of Rolugunta Mandal to Tamilnadu, Khammam and Chittoor Districts. Launching of prosecution will not have the immediate desired effect of preventing him from further action in future in a manner prejudicial to the maintenance of public health and consequential public offender as its culmination takes considerably a long time. He has handled so much of illegal transportation of Ganja that he has the necessary ability to again indulge in this criminal activity with ease and confidence. The Analyst, who analysed the samples in each of the case, opined that Ganja belongs to the family of cannabinaceae. Therefore, the activities of the detenu fall under the definition of Drug Offender as defined under Section 2 (f) of the Act 1 of 1986. In order to prevent him from further indulging in the similar offences, the detaining authority passed the order of detention. ‘Drug Offender’ as defined under Section 2(f) of the Act 1 of 1986 means a person, who manufactures stocks imports, exports, sells or distributes any drug or cultivates any plant or does any other thing in contravention of any of the provisions of the Drugs and Cosmetics Act 1940 or the Narcotic Drugs and Psychotropic Substances Act, 1985. As seen from the record, in five cases, the detenu was caught red-handed while transporting huge quantity of Ganja, but in one case though he ran away from the scene of offence, he surrendered before the Court. 10. It is the contention of the learned counsel appearing for the petitioner that in one case, the petitioner has not applied for bail and the detenu is in judicial custody. Therefore, question of detention is unwarranted. He relied on a decision reported in BNINOD SINGH V DISTRICT MAGISTATE, DHANBAD, BIHAR AND OTHERS [2], wherein it was held thus: “In this case there were grounds for the passing of the detention order but after that the detenu has surrendered for whatever reasons, therefore the order of detention though justified when it was passed but at the time of the service of the order there was no proper consideration of the fact that the detenu was in custody or that there was any real danger of his release. Nor does it appear that before the service there was consideration of this aspect properly. In the facts and circumstances of this case, therefore, the continued detention of the detenu under the Act is not justified.” 11. He also relied on another decision reported in M.AHAMEDKUTTY V UNION OF INDIA AND ANOTHER [3], wherein it was held thus: “ It was observed that the detention order was passed as the detaining authority was apprehensive that in case the detenu was released on bail, he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed.” 12. He also relied on another decision reported in KAMARUNNISA V UNION OF INDIA AND ANOTHER [4], wherein it was held thus: “From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court. What this Court stated in the case of Ramsey Yadav (AIR 1986 SC 315) (supra) was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases, which are essential criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention. This seems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore, find it difficult to accept the contention of the counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody.” 13. He also relied on another decision reported in T.V.SARAVANAN ALIAS S.A.R.PRASANA VENKATACHAARIAR CHATURVEDI V STATE THROUGH SECRETARY AND ANOTHER [5], wherein it was held thus: “The order of detention itself notices the fact that the appellant had moved an application for grant of bail before the Principal Sessions Court which was rejected on November 17, 2004. The appellant had moved another bail application before the High Court which was withdrawn on December 3, 2004.The detaining authority noticed that the appellant had not moved any bail application subsequently, bit it went on to state that there was imminent possibility of appellant’s coming out on bail by filing another bail application before the Sessions Court or the High Court since in similar cases bails are granted by the Sessions Court after a lapse of time. The order of detention was passed on December 15 2004 i.e., nearly 12 days after the dismissal of the bail application by the High Court. There is nothing on record to show that the appellant had made any preparation for filing a bail application or that another bail application had actually been filed by him which was likely to come up for hearing in due course.” 14. He also relied on another decision reported in IBRAHIM NAZEEER V STATE OF T.N. AND ANOTHER [6], wherein it was held thus: “It has to be noted that whether prayer for bail would be accepted depends on circumstances of each case and no hard and fast rule can be applied. The only requirement is that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be ipse-dixit of the detaining authority. On the basis of materials before him, the detaining authority came to the conclusion that there is likelihood of detenu being released on bail. That is his subjective satisfaction based on materials. Normally, such satisfaction is not to be interfered with. On the facts of the case the detaining authority has indicated as to why he was of the opinion that there is likelihood of detenu being released on bail. It has been clearly stated that in similarly cases orders granting bail are passed by various courts. Appellant has not disputed correctness of this statement.” 15. On the other hand, counsel representing the learned Advocate General placed reliance on a decision reported in SUNILA JAIN V UNION OF INDIA AND ANOTHER [7], wherein it was held thus: “The decisions of this Court referred to hereinbefore must be read in their entirety. It is no doubt true that whether a detenu on the date of the passing of the order of detention was in custody or not, would be a relevant fact. It would also be a relevant fact that whether he is free on that date and if he is, whether he is subjected to certain conditions in pursuance to and in furtherance of the order of bail. If pursuant to or in furtherance of such conditions he may not be able to flee from justice that may be held to be relevant consideration for the purpose of passing an order of detention but the converse is not true. Some such other grounds raised in the application for bail and forming the basis of passing an order of bail may also be held to be relevant. It would, however not be correct to contend that irrespective of the nature of the application for bail or irrespective of the nature of the restrictions, if any, placed by the Court of competent jurisdiction in releasing the detenu on bail, the same must invariably and mandatorily be placed before the detaining authority and the copies thereof supplied to the detenu.” 16. He also relied on another decision reported in SMT. REKHABEN VIRENDRA KAPADIA V STATE OF GUJARAT AND OTHERS [8], wherein it was held thus: “The question is whether the past activities of the detenu are such that the detaining authority can reasonably come to the conclusion that the detenu is likely to continue in his lawful activities. If the detaining authority in this case had come to the conclusion taking into account the past activities of the detenu that he is likely to continue to indulge in such activities in future there would be no justification for this Court to interfere. It is quite likely that person who are deeply involved in such activities as smuggling can cause a reasonable apprehension in the minds of the detaining authority that they are likely to continue in their unlawful activities.” 17. From the above decisions, it is clear that when a person is in custody and there was no imminent possibility of being released, the power of preventive detention should not be exercised. No doubt, the detaining authority though stated that the detenu was in judicial custody by the time of passing the impugned order, there was no indication that there was a likelihood of his release. Though, it is not expressly mentioned, but it can be inferred from the other circumstances that there was a possibility of detenu being released in the due course. No doubt, there is no indication that the detenu would likely to continue in his unlawful activities and that there is a likelihood of granting bail to him in due course, but the same can be inferred from the circumstances of the case that for the last 10 years the detenu involved in huge quantity of transportation of Ganja. In almost all case, he was granted bail except in Cr.No.703/2007-08 of Narsipatnam, when he was arrested on 09-04- 2008. The impugned order was passed on 19-04-2008. Therefore, within a period of 10 days, he might not have applied for grant of bail, but that does not mean that in due course of time, he would not apply for bail. Considering the past conduct, it can be inferred that there is every possibility of his releasing on bail as on earlier occasions and on being release, there is every possibility of indulging in prejudicial activities and so as to prevent him from doing so, the impugned order was passed. Therefore, it is a clear case where the detaining authority has gone through the cases registered against the detenu and after proper application of mind, the impugned order has been passed. On several occasions, the detenu was found in possession of huge quantity of contraband and it would cause wide spread to the human life and public health. It is not merely a Law and Order problem. It would be maintenance of public order. The detenu was ordered to be released on bail in almost all cases on earlier occasions. Therefore, from the circumstances, it is clear that the detaining authority has taken note of all the circumstances and came to a right conclusion in ordering detention of the detenu for a period of 12 months, which was approved by the Government and confirmed by the Advisory Board. The said order does not suffer from any infirmities so as to call for interference by this Court. Therefore, the Writ Petition is liable to be dismissed. 18. Accordingly, the Writ Petition is dismissed. However, there shall be no order as to costs. --------------------------------- JUSTICE D.S.R.VARMA -------------------------------- JUSTICE K.C.BHANU DATED: -07-2008 Hsd [1] (2004) 7 Supreme Court Cases 467 [2] AIR 1986 SC 2090 (1) [3] (1990) 2 SCC 1 [4] AIR 1991 SC 1640 [5] AIR 2006 SC 1462 [6] AIR 2006SC 3606 [7] (2006) 3 SCC 321 [8] (1979) 2 SCC 566