HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO W.P.No.9202 of 2011 Dated: 27-04-2011 Between: Kakkerla Raju …Petitioner AND The Collector and District Magistrate, Warangal District, Warangal and others Respondents. This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO W.P.No.9202 of 2011 ORDER: (Per Hon’ble Sri Justice A.Gopal Reddy) Son of the detenu-Kakkerla Sambaiah filed this writ petition for issuance of a writ of habeas corpus for production of the detenu and to declare that the detention order passed by the first respondent as arbitrary and illegal. It is not necessary to go into the details of the impugned detention order. Suffice it to say, as per the grounds of detention, the detenu was involved in three crimes registered for the offence under Section 7(A) read with Section 8(e) of A.P. Prohibition Act, 1995 (for short ‘Act’) on the file of Prohibition and Excise Station, Warangal (Urban), Warangal District. In all the three cases, the detenu was arrested and was released on bail. The detaining authority-first respondent herein came to the conclusion that the detenu is repeatedly indulging in dangerous boot legging activities which adversely affect the public order. In all the cases, the detenu was released on bail as per the bailable provisions under the laws and therefore, the first respondent felt that the department is unable to prevent the detenu from further indulging in the dangerous activities which affects the public health and public order and hence, he came to the conclusion that the detenu should be detained by invoking the provisions of A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 as the detenu was found to be a “Bootlegger” within the meaning of Section 2(a) and 2(b) of the said Act. We have heard the learned counsel for the petitioner and also the learned Government Pleader representing the learned Advocate General. In a similar set of facts, this Court in W.P.No.29805 of 2010 quashed the detention order holding that the subjective satisfaction of the detaining authority is vitiated on the premise that the detaining authority was under the impression that the contravention of Section 7- A, punishable under Section 8(e) of the said Act is a bailable offence, which in fact, is a non-bailable offence and prosecution will have right to oppose grant of bail. Therefore, the entire order of detention is vitiated. The Supreme Court in Sunila Jain vs. Union of India ((2006) 3 SCC 321) held that the offence under Section 7-A read with Section 8(e) of the Act, 1995 is a non-bailable offence and it is a cognizable one and when a case is registered under the provisions of the Prohibition Act, 1995 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 detenu 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. In view of the above, the subjective satisfaction arrived by the detaining authority that the detenu has been released on bail as per the bailable provisions under the laws is non-application of mind and it vitiated the detention order and therefore, the detention order is liable to be set aside. The writ petition is allowed and the impugned detention order is set aside. The detenu-Kakkerla Sambaiah shall be released forthwith if not required in any other crime. No order as to costs. ________________ A. GOPAL REDDY, J. __________________ APRIL 27, 2011 RAJA ELANGO, J. Tsr.