IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FIFTEENTH DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE D.S.R.VARMA And THE HON'BLE MR JUSTICE K.C. BHANU WRIT PETITION NO.11764 of 2008 Between: Smt.Guguloth Chaitanya W/o.Guguloth Ramu, R/o.Malsoor Thanda of Thallada Mandal. ...PETITIONER AND 1 The Collector and District Magistrate, Khammam, Khammam District. 2 The Government of Andhra Pradesh, rep. by its Chief Secretary, Secretariat, Hyderabad. 3 The Superintendent, Central Prison, Warangal, Warangal District. ...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 a Writ of Habeas Corpus under Article 226 of the Constitution of India directing the respondents to produce Gulugoth Ramu, S/o. Hariya now detained in Central Prison, Warangal, before this Court and he may be ordered to be released forthwith after declaring that his detention is illegal and void and to pass such other order or orders. Counsel for the Petitioner: MR.D.BHASKAR REDDY Counsel for the Respondents: THE ADVOCATE GENERAL The Court made the following: THE HON'BLE MR JUSTICE D.S.R.VARMA And THE HON'BLE MR JUSTICE K.C.BHANU WRIT PETITION NO.11764 of 2008 ORDER: (Per the Hon’ble Mr Justice K.C.Bhanu) This Writ Petition is filed challenging the detention order of Guguloth Ramu, S/o.Hariya, who was detained in Central Prison in pursuance of the detention order made under Section 3 (1) and (2) read with 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 dated 18.03.2008. In all, five instances have been noticed by the detaining authority for coming to the conclusion that the illegal activities of the petitioner’s husband would cause danger to the public health and prejudicial to the maintenance of the public order. The said order has been confirmed by the Government of Andhra Pradesh as well as the Advisory Board. Challenging the same, the Writ Petition is filed. Learned counsel appearing for the petitioner contended that it is a case where the detaining authority has not applied his mind with regard to the offences for which the husband of the petitioner was charged and it is stated in the order the offences for which he was charged were bailable and that there was no subjective satisfaction of the offences alleged against the husband of the petitioner so as to detain him and hence, he pressed to set aside the said order. Learned Assistant Government Pleader, representing the learned Advocate General, opposed the same on the ground that the documents pertaining to the detenue would disclose that for what offences, cases have been registered and that merely because he mentioned in the order that the husband of the petitioner secured bail in short span taking advantage of the bailable provision under the law, cannot be taken into consideration that there was no application of mind and hence, she prays to dismiss the Writ Petition. The allegation that the detenue had indulged in illegal possession, transportation and sale of illicit liquor, which is injurious to the health of various people in and around Thallada Mandal causing wide spread danger to the public health and he has acted prejudicial to the maintenance of the public order. In arriving at such a conclusion, the detaining authority has been relied upon the grounds mentioned as under. 1. COR.No.475/07-08, Dated: 25.10.2007: On 25.10.2007 on receiving reliable information regarding illegal transportation of I.D. Liquor the raid party under the supervision of L.Rama Krishna, Proh & Excise Sub-Inspector, Wyra conducted route watch in the presence of mediators in the outskirts of Malsoor Thanda of Thallada Mandal and found you in possession of (50) litres of I.D. Liquor packed in (10) polythene covers each containing (5) Litres in a gunny bag while transporting the same on a scooter bearing registration No.AP 16 C 2396 at about 7.00 AM. On interrogation you have disclosed your identity. As the possession and transportation of I.D. Liquor was an offence, the Proh & Excise Sub-Inspector has seized the contraband and the vehicle, used for transportation of I.D. Liquor, duly drawing the samples for chemical analysis and arrested you under cover of panchanama. Basing on the panchanama a case was registered in COR No.475/07-08, Dt.25.10.2007 under Sec.7 (A) r/w 8 (e) of A.P. Prohibition Act, 1995 against you for illegal possession and transportation of I.D. Liquor and remanded you to judicial custody. Later you were released on bail. The Chemical Examiner, Warangal in his report No.1602/2007 at Sl.No.24675 dated: 26.12.2007 opined that the sample drawn in this case contain “illicitly distilled liquor containing sediment. It is injurious to health and unfit for human consumption.” The Chemical Examiner further reported that it contain fusel oil and acids. The Station House Officer, Wyra has laid Charge sheet on 14.03.2008 before the Hon’ble Judicial Magistrate of First Class, Madhira. The case is numbered as C.C.No.104/08 and is posted to 30.07.2008 for trial. It is evident that you are acting in a manner as to cause injury to public health and also prejudicial to the maintenance of public order and tranquility in public life. 2. COR.No.596/07-08, Dt.11.12.2007: On 11.12.2007 on receiving reliable information regarding illegal transportation of I.D. Liquor the raid party under the supervision of L.Rama Krishna, Proh & excise Sub-Inspector, Wyra conducted route watch in the presence of mediators in the outskirts of Malsoor Thanda of Thallada Mandal and found you in possession of (55) Litres of I.D. Liquor packed in (11) polythene covers each containing (5) Litres in scooter dickeys while transporting the same on a scooter bearing registration No.AP 16 P 3958 at about 7.00 AM. On interrogation you have disclosed your identity. As the possession and transportation of I.D. Liquor was an offence, the Proh & Excise Sub-Inspector has seized the contraband and the vehicle, used for transportation of I.D. Liquor, duly drawing the samples for chemical analysis and arrested you under cover of panchanama. Basing on the panchanama a case was registered in COR.No.596/07-08 Dt.11.12.2007 under sec.7 (A) r/w.8 (e) of A.P. Prohibition Act, 1995 against you for illegal possession and transportation of I.D. Liquor and remanded you to judicial custody. Afterwards you were released on bail. The Chemical Examiner, Warangal in his report No.146/2008 at Sl.No.2476 dated 08.02.2008 opined that the sample drawn in this case contain ”Illicitly distilled liquor containing sediment. It is injurious to health and unfit for human consumption.” The Chemical Examiner further reported that the I.D. Liquor contain fusel oil and acids. The Station House Officer, Wyra has laid Charge Sheet on 14.03.2008 before the Hon’ble Judicial Magistrate of First Class, Madhira. The case is numbered as C.C.No.107/08 and is posted 30.07.2008 for trial. It is evident that are acting in a manner to cause injury to public health and also prejudicial to the maintenance of public order and tranquility in public life. 3. COR.No.703/07-08 Dt.21.01.2008: On 21.01.2008 on receiving reliable information regarding illegal transportation of I.D. Liquor the raid party under the supervision of L. Rama Krishna, Proh & Excise Sub-Inspector, Wyra conducted route watch in the presence of mediators near Gram Panchayath Office, Garikepadu Village of Wyra Mandal and found you in possession of (40) Litres of I.D. Liquor packed in (8) polythene covers each containing (5) Litres in Scooter Dickeys while transporting the same on a scooter bearing registration No.AP 7 8014 at about 8.40 AM. On interrogation you have disclosed your identity. As the transportation and possession of I.D. Liquor is an offence, the Proh & Excise Sub-Inspector has seized the contraband and the vehicle, used for transportation of I.D. Liquor, duly drawing the samples for chemical analysis and arrested you on same day in this crime under cover of panchanama. Basing on the panchanama a case was registered in COR.No.703/07/08, dt.21.01.2008 under Sec.7 (A) r/w.8 (e) of A.P. Prohibition Act, 1995 against you for illegal possession and transportation of I.D. Liquor and remanded you to judicial custody. Later you were released on bail. The Chemical Examiner, Warangal in his report No.147/2008 at Sl.No.2530 dated 08.02.2008 opined that the sample drawn in this case contain “illicitly distilled liquor containing sediment. It is injurious to healthy and unfit for human consumption.” The Chemical Examiner further reported that the I.D. Liquor contain fusel oil and acids. The Station House Officer, Wyra has laid charge sheet on 14.03.2008 before the Hon’ble Judicial Magistrate of First Class, Madhira. The case is numbered as C.C.No.105/08 and is posted to 30.07.2008 for trial. It is evident that you are acting in a manner as to cause injury to public health and also prejudicial to the maintenance of public order and tranquility in public life. Since it is a preventive detention, which affects the personal liberty of an individual, the procedure established by law, the detaining authority has to apply his mind cautiously and carefully to all the material placed before him. He must know whether the provisions for which the detenue was charged or the cases registered are bailable or non-bailable, whether there is likelihood of the petitioner releasing on bail for the said offences. If the existing laws i.e. A.P. Prohibition Act or Excise Act unable to check the illegal activities of the detenue, then only the detention order can be passed if it appears to him that whether the Acts cause prejudice to the public order. Learned counsel for the petitioner places relies on the decision reported in Sunila Jain v. Union of India & Another[1], wherein it was held as under. “However, whether a provision of law is bailable or not is a question of law. The same is presumed to be known to the courts and/or the detaining authority. It may not be necessary even to be stated in the application for bail. If a person had been released on bail on the ground that the offence is bailable, it would not be necessary to bring the said fact before the detaining authority. The detaining authority will have to satisfy himself on the basis of materials placed on record, as to whether the order of preventive detention should be passed against the detenu or not. The constitutional mandate can be said to be violated, provided: (1) the impairment has been caused to the subjective satisfaction to be arrived at by the detaining authority; and (2) if relevant facts had not been considered or the relevant or vital documents have not been placed before the detaining authority.” From the above decision, it is clear that there must be a subjective satisfaction to the detaining authority and if the relevant facts are not being considered, then there is a violation of mandatory proceedings in the situation. The offences for which cases have been registered have not been mentioned in the detention order but the documents supplied to the detenue would clearly go to show that the cases have been registered against the detenue for violation under Section 7 (a) read with Section 8 (e) of the A.P. Prohibition Act, 1995 (“the Act” for brevity). When a case is registered under the provisions of the Prohibition Act, the bail is not automatic. By virtue of Section 11 (a), the provisions of the Code of Criminal Procedure relating to bail have been excluded. The Court has to record the reasons and there will be an opportunity for the prosecuting agency to oppose the bail application for the reason that a notice has to be given to the prosecuting agency before granting bail. These aspects have not been considered by the detaining authority. On the other hand, it is specifically mentioned in the order that the detenue was securing bail, taking advantage of the bailable provisions under the Act. The offence under Section 7 (a) read with Section 8 (e) of the A.P. Prohibition Act is not a bailable offence. It is non-bailable and cognizable. Therefore, these aspects have not been taken into consideration by the detaining authority and arrived at a different conclusion. Hence, the detaining authority has not applied his mind with regard to the provisions under which the detenue was arrested and the relevant provision under the A.P. Prohibition Act. When there is no subjective satisfaction for detaining a person in the custody, the said order is liable to be set aside. In the Writ Petition is allowed. The impugned proceedings in Cr.No.215/2008/A5, dated 18.03.2008 are set aside. The detenue, namely Guguloth Ramu, S/o.Hariya, 22 years, R/o.Malsoor Thanda of Thallada Mandal, Khammam District, shall be released forthwith, if not required in any other case. ______________ (D.S.R.VARMA, J) ____________ (K.C.BHANU, J) 15th July 2008 RRB [1] (2006) 3 SCC 321