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.11763 of 2008 Between: Smt. Shivarathri Sandhya, W/o. Shivarathri Sambaiah, R/o. Kunkudu Chettu Gumpu, H/o. Bandarugudem, Manuguru Mandal, Khammam District. ...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 issue a Writ of Habeas Corpus under Article 226 of the constitution of India directing the respondents to produce Shivarathri Sambaiah, S/o. Dudaiah 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. 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.11763 of 2008 ORDER: (Per the Hon’ble Mr Justice K.C.Bhanu) This Writ Petition is filed challenging the detention order of Shivarathri Sambaiah, S/o.Dudaiah, 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 Manuguru 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. Cr.No.51/06-07, Dated 02.05.2006 On 02.05.2008 at about 5.30 AM during the raid conducted by the Proh. & Excise Sub-Inspectors (1) Sri T.Laxman Goud and (2) Sri L.Ratnakar along with staff at Sundaraiah Nagar, Bandarugudem, have found one person carrying one plastic can containing (10) litres of I.D.liquor. Then on enquiry the person disclosed hisname as Shivarathri Sambaiah i.e., you. The contraband was seized and you were arrested for committing an offence after drawing sample under cover of panchanama and remanded to judicial custody on 02.05.2006. The Chemical Examiner, Warangal in his analysis report No.575/2006, dated 07.08.2006 at Sl.No.11061, opined that the sample is “illicitly distilled liquor unfit for human consumption and injurious to health”. The Chemical Examiner further reported that the I.D. Liquor sample contain fusel oil and acids. The Station House Officer, Manuguru has laid charge sheet on 14.03.2008 in the Hon’ble J.F.C.M. Court, Manuguru and the case is under trial in C.C.No.105 of 2008. It is evident that you are acting in a manner which causes injurious to public health and also prejudicial to the maintenance of the public order and tranquility in public life. 2. Cr.No.137/06-07 Dt.25.06.2006: On 25.06.2006 at about 5.00 PM during the route watch conducted by Sri T.Laxman Goud, Proh. & Excise Sub-Inspector along with staff at P.K. Check Post, Bhandarugudem of Manuguru Mandal have found one person transporting (20) litres of I.D. liquor containing in a plastic can on Scooter bearing No.AP 36 9631. Then on enquiry, the person disclosed his name as Shivarathri Sambaiah i.e., you. The contraband was seized and you were arrested for committing an offence after drawing sample under cover of panchanama and remanded to judicial custody on 25.06.2006. The Chemical Examiner, Warangal in his analysis report No.576/2006 dated 08.08.2006 at Sl.No.11131,opined that the sample is “illicitly distilled liquor unfit forhuman consumption and injurious to health”. The Chemical Examiner further reported that the I.D. Liquor sample contain fusel oil and acids. The Station House Officer, Manuguru has laid charge sheet on 14.03.2008 in the Hon’ble J.F.C.M. Court, Manuguru and the case is under trial in C.C.No.101/2008. It is evident that you are acting in a manner which causes injurious to public health and also prejudicial to the maintenance of the public order and tranquility in public life. 3. Cr.No.384/06-07 Dt.02.11.2006: On 02.11.2006 at about 8.40 PM during the route watch conducted by Sri T. Laxman Goud, Proh. & Excise, Sub-Inspector along with staff at O.C. II Bankar, of Manuguru Mandal have found (2) persons transporting (50) litres of I.D. liquor containing in (5) polythene covers on Bicycle. On seeing the Excise officials in uniform on person has absconded by leaving the case property and bicycle and other person was caught hold. Then on enquiry the person caught hold disclosed his name as Jagidi Adinarayana and he also disclosed the name of the person absconded as Shivarathri Sambaiah i.e. you. The contraband was seized and Jagidi Adinarayana was arrested for committing an offence after drawing sample under cover of panchanama and remanded to judicial custody on 02.11.2006. Later you were arrested on 22.01.2007 and sent for judicial custody. The Chemical Examiner, Warangal in his analysis report No.300/2007, dated 12.03.2007 at Sl.No.6135, opined that the sample is “illicitly distilled liquor unfit for human consumption and injurious to health”. The Chemical Examiner further reported that the I.D. Liquor sample contain fusel oil and acids. The Station House Officer, Manuguru has laid charge sheet on 14.03.2008 in the Hon’ble J.F.C.M. Court, Manuguru and the case is under trial in C.C.No.102/2008. It is evident that you are acting in a manner which causes injurious to public health and also prejudicial to the maintenance of the public order and tranquility in public life. 4. Cr.No.633/06-08 Dt.11.01.2008: On 11.01.2008 at about 1.45 PM during the ID raid conducted by Sri Md.Ghousuddin, Proh. & Excise Sub-Inspector along with staff in front ofa house situated at Kunkudu Chettu Gumpub, H/O.Bandarugedem, Manuguru Mandal, have found one person transporting (15) litres of I.D. liquor containing in one polythene cover kept in Scooter bearing No.AP 36 B 9631. Then on enquiry the person disclosed his name as Shivarathri Sambaiah i.e. you. The contraband was seized and you were arrested for committing an offence after drawing sample under cover of panchanama and remanded to judicial custody on 11.01.2008. The chemical examiner, Warangal in his analysis report No.297/2008 dated 12.03.2008 at Sl.No.5315, opined that the sample is “illicitly distilled liquor unfit for human consumption and injurious to health”. The Chemical Examiner further reported that the I.D. Liquor sample contain fusel oil and acids. The Station House Officer, Manuguru has laid charge sheet on 14.03.2008 in the Hon’ble J.F.C.M. Court, Manuguru and the case is under trial in C.C.No.103/2008. It is evident that you are acting in a manner which causes injurious to public health and also prejudicial to the maintenance of the public order and tranquility in public life. 5. Cr.No.707/07-08 Dt.12.03.2008 On 12.02.2008 at about 11.00 AM during the route watch conducted by Sri MD. Ghosuddin, Proh. & Excise Sub-Inspector along with staff at Kondaigudem forest area, near Bugga Banker have found (2) persons carrying One Plastic can each. On seeing Excise officials in uniform one person has absconded by leaving the plastic can carried by him containing (10) litres of I.D. liquor. The other person was caught hold with (1) plastic can containing (10) litres of I.D. liquor. Then on enquiry the person caught hold revealed his name as Bontha Uppalaiah. He also revealed the name of the person absconded as Shivarathri Sambaiah i.e. you. The contraband was seized and Bontha Uppalaiah was arrested for committing an offence after drawing sample under cover of panchanama and remanded to judicial custody on 12.02.2008. Since then you were found absconding. The Chemical Examiner, Warangal in his analysis report No.297/2008, dated 12.03.2008 at Sl.No.5317, opined that the sample is “illicitly distilled liquor unfit for human consumption and injurious to health”. The Chemical Examiner further reported that the I.D. liquor sample contain fusel oil and acids. The Station House Officer, Manuguru has laid charge sheet on 14.03.2008 in the Hon’ble J.F.C.M. Court, Manuguru and the case is under trial in C.C.No.104/2008. It is evident that you are acting in a manner which causes injurious to public health and also prejudicial to the maintenance of the 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 result, the Writ Petition is allowed. The impugned proceedings in Cr.No.54/P & Ex/2008/A3, dated 18.03.2008 are set aside. The detenue, namely Shivarathri Sambaiah, S/o.Dudaiah, 35 years, R/o.Kunkudu Chettu Gumpu, H/O.Bandarugudem, Manuguru 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