*THE HONOURABLE SRI JUSTICE T.CH.SURYA RAO +WRIT PETITION NO.8627 OF 2004 % TUESDAY, THE THIRD DAY OF AUGUST TWO THOUSAND AND FOUR #K.Amarnath S/o O.K.Prasad 144/7, IIIrd Phase LIG, KPHB, Hyd ..... PETITIONER Vs. $1 The Collector and District Magistrate R.R.Dist 2 The Chief Secretary Government of AP Secretariat, Hyderabad 3 The Superintendent Central Jail for women Hyderabad .....RESPONDENTS ! Counsel for the writ petitioner: Mr.C.Praveen Kumar ^ Counsel for the respondents: The Advocate General < Gist: >Head Note ?1. AIR 1966 SC 740 2 AIR 1970 SC 1228 3 AIR 1970 SC 852 4 AIR 1982 SC 1143 5 AIR 1988 SC 208 6 (1999) 5 SCC 613 7 (1995) 3 SCC 237 8 1994 (3) ALT 467 (D.B.) 9 1952 SCR 18 10 AIR 1954 SC 276 11 AIR 1968 SC 1803 12 AIR 1943 FC 72 13 (1974) 1 SCC 645 14 (1975) 1 SCC 801 15 (1975) 2 SCC 81 16 1952 SCR 135 = AIR 1942 SC 16 17 (1946) 2 All ER 201 18 (1975) 4 SCC 47 19 AIR 1975 SC 1517 20 (1979) 1 SCC 222 21 (1975) 3 SCC 395 22 (1975) 3 SCC 554 23 AIR 1979 SC 456 24 (1979) 4 SCC 370 25 (1951) SCR 167 = AIR 1951 SC 157 26 (1953) SCR 708 = AIR 1953 SC 318 27 (1954) SCR 418 = AIR 1954 SC 179 28 (1956) SCR 948 = AIR 1957 SC 164 29 (1981) 4 SCC 647 30 (2000) 6 SCC 751 31 (2000) 7 SCC 601 32 (2000) 9 SCC 170 33 (2002) 7 SCC 129 34 (2003) 7 SCC 46 35 (2004) 2 SCC 621 36 (2004) 3 SCC 289 37 AIR 1974 SC 1336 38 AIR 1975 SC 473 39 AIR 1981 SC 2166 40 AIR 1982 SC 146 41 (1992) 4 SCC 154 42 (2002) 3 SCC 754 43 2003 CRI.L.J. 1222 44 AIR 1984 SC 211 45 AIR 1984 SC 1334 46 2002 CRI.L.J. 1962 47 AIR 1975 SC 1516 48 2002 (5) ALT 72 (D.B.) IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRD DAY OF AUGUST TWO THOUSAND AND FOUR PRESENT THE HON'BLE MR JUSTICE T.CH.SURYA RAO WRIT PETITION NO : 8627 of 2004 Between: K.Amarnath S/o O.K.Prasad 144/7, IIIrd Phase LIG, KPHB, Hyd. ..... PETITIONER AND 1 The Collector and District Magistrate R.R.Dist. 2 The Chief Secretary Government of AP, Secretariat, Hyderabad. 3 The Superintendent Central Jail for women Hyderabad. .....RESPONDENT(S) 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 Art. 226 of Constitution of India directing the Respondents to produce Smt. Kodi Saroja, now detained in Central Prison for Women, Hyderabad, before this Hon'ble Court and she may be ordered to be released forthwith after declaring that the detention is illegal and void. Counsel for the Petitioner: MR.C.PRAVEEN KUMAR Counsel for the Respondents: THE ADVOCATE GENERAL The Court made the following : ORDER: Having regard to the divergence of the views taken by the two learned Judges constituting the Bench, the matter has been referred to me for the opinion of the 3rd Judge. I have had the advantage of going through the orders of both the learned Judges. The facts and the rival contentions of the writ petitioner and the State have been narrated in extenso therein and, therefore, it is not necessary to reiterate the same. The writ of Habeas Corpus was sought by the son of the detenue. The detention order in this case was passed by the learned District Collector on 20.01.2004 in Proc.No.C1/421/2004 under sub-section (2) of Section 3 of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short ‘the Act 1 of 1986). The quintessence of the impugned order is that the detenue-Smt.Kodi Saroja is an immoral traffic offender having been arrested in Crime No.935/2003 under Sections 3 and 4 of the Immoral Traffic (Prevention) Act, 1956 (for short ‘the Act, 1956) and has been indulging in prejudicial activities as defined in clause (i) of Section 2 of the Act 1 of 1986 and, therefore, recourse to normal legal procedure would involve more time and would not be an effective deterrent to prevent her from indulging in such prejudicial activities further and with a view to prevent her from acting in any manner prejudicial to the maintenance of public order, the provisions of the Act 1 of 1986 should be invoked to detain her, the District Collector having been satisfied about the same directed the detention of the said Saroja in Central Prison, Chanchalaguda. The grounds in support thereof have been annexed to the order of detention along with the list of documents, which buttress the same. Pursuant to the impugned proceedings of the Collector, the Government of A.P. issued G.O. Rt.No.452 dated 28.01.2004 according the necessary approval to the order of detention passed by the Collector. The matter had been referred to an Advisory Board and pursuant to the report dated 04.03.2004 given by the Board, the Government of A.P. vide G.O. Rt.No.1240 dated 15.03.2004 confirmed the order of detention and directed the detention to be continued for a maximum period of 12 months from the date of detention. The writ petitioner is now assailing the said proceedings on the premises that (i) they do not relate to public order and at the most they may affect law and order; (ii) the incidents relied upon by the detaining authority to buttress its order of detention are stale and are not proximate to the order of detention; (iii) the fact that the detenue was released on bail in all the cases was omitted to be mentioned in the grounds; and (iv) finally the detenue has not been prosecuted under the provisions of the Immoral Traffic in Women and Girls Act, 1956 in any of the cases and, therefore, such an order is vitiated having been passed on irrelevant and non-existent grounds. At the outset, it is expedient to understand certain of the provisions contained in Act 1 of 1986. The expressions, “acting in any manner prejudicial to the maintenance of public order” and “immoral traffic offender” are defined under clauses (a) and (i) of Section 2 thereof respectively, which read as under: Section 2(a): “ “acting in any manner prejudicial to the maintenance of public order” means when a boot-legger, a dacoit, a goonda, an immoral traffic offender or a land- grabber is engaged or is making preparations for engaging , in any of his activities as such, which affect adversely, or are like to affect adversely, the maintenance of public order. Explanation:- For the purpose of this clause public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely inter alia, if any of the activities of any of the persons referred to in this clause directly, or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life or public health.” Section 2(i): “ “immoral traffic offender” means a person who commits or abets the commission of any offence under the Immoral Traffic in Women and Girls Act, 1956;” It is obvious from a combined reading of the above provisions that if an immoral traffic offender engages himself or herself or is making or makes preparation for engaging in any of the activities which affect adversely or are likely to affect adversely the maintenance of public order, it can be said that he or she is acting in any manner prejudicial to the maintenance of public order. Such acts will affect the maintenance of public order only when they directly or indirectly cause any harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave and widespread danger to life or public health. An isolated act of indulging in any immoral traffic offences by an immoral traffic offender may affect the law and order situation. To say that it affects the public order, the immoral traffic offender must indulge in such acts which are the offences under the Immoral Traffic in Women and Girls Act, 1956 and which may directly or indirectly cause any harm, danger or alarm or a feeling of insecurity among the general public or a section thereof; or which may cause a grave and widespread danger to life and public health. Then only it is said that the person who is alleged to have indulged in such immoral traffic offences is acting in any manner prejudicial to the maintenance of public order. Unless the detaining authority is satisfied that the immoral traffic offender is acting in any manner prejudicial to the maintenance of public order, it cannot invoke the provisions of Section 3 of the Act 1 of 1986 ordering the detention of such persons. The twin requirements, which appear to be sine qua non, therefore, are that the detenue must be an immoral traffic offender; and that he or she must act in any manner prejudicial to the maintenance of public order. The public order would be affected only when the activities of the offender may directly or indirectly cause any harm, danger or alarm or a feeling of insecurity among the general public or a section thereof or may cause grave and widespread danger to life or public health. In other words, the acts of detenue may cause a feeling of insecurity among the general public or may cause grave and widespread danger to life or public health. It must be said that if a person indulges and trades in sex, such acts would gravely affect the public health as it may lead to the dangerous epidemic of AIDS. Perhaps that may strike to the commonsense of any prudent person. But what is required is the necessary satisfaction of the authority which is inclined to pass a detention order, the significance whereof need not be overemphasized having regard to the constitutional mandate that life and liberty of the individual are the fundamental rights and human rights and shall have to be preserved at any cost. Section 3 of the Act 1 of 1986 clearly empowers the Government to make an order validly to detain an immoral traffic offender with a view to preventing him/her from acting in any manner prejudicial to the maintenance of public order on being satisfied that it is expedient to do so. The crucial point which is germane in the context for consideration is whether or not the authority which passed the impugned detention order has reached the necessary satisfaction that the immoral traffic offender has been acting in any manner prejudicial to the maintenance of public order. Whether an act relates to ‘law and order’ or ‘public order’ depends upon the effect of the act on the life of the community or in other words the reach, effect and potentiality of the act; if so put as to disturb or dislocate the even tempo of the life of the community, it will be an act which will affect the public order. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. There are three concepts, viz. ‘law and order’, ‘public order’ and ‘security of the State’. To appreciate the scope and extent of each of them one should imagine three concentric circles. The largest of them represented ‘law and order’, next represented ‘public order’ and the smallest represented ‘the security of the State’. An act might affect ‘law and order’, but not ‘public order’ just as an act might affect ‘public order’ but not ‘the security of the State’. Vide RAM MANOHAR LOHIA v. STATE OF BIHAR; ARUN GHOSH v. STATE OF WEST BENGAL; PUSHKAR MUKHERJI v. STATE OF WEST BENGAL; ASHOK KUMAR v. DELHI ADMINISTRATION; STATE OF U.P. v. KAMAL KISHORE SAINI. The concept of law and order, public order and security of the state do not require any further elucidation having regard to the plethora of decisions rendered by the Apex Court. In my considered view, it is not expedient to consider the essential difference between ‘law and order’ and ‘public order’ as enunciated by the Apex Court inasmuch as Act 1 of 1986 specifically envisages that the activities must be of such a nature which may cause any harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave and widespread danger to life and public health so as to ultimately conclude that the person who is indulging in such activities is acting prejudicial to the maintenance of public order. It is apposite here to consider the judgment of the Apex Court in AMANULLA KHAN KUDEATALLA KHAN PATHAN v. STATE OF GUJARAT. In para 5 it was held thus: “Even an activity violating an ordinary legal provision may in a given case be a matter of public order. It is the magnitude of the activities and its effect on the even tempo of life of the society at large or with a section of society that determines whether the activities can be said to be prejudicial to the maintenance of public order or not. In Mustakmiya Jabbarmiya Shaikh v. M.M.Mehta, Commr. of Police it has been held by this Court that in order to bring the activities of a person within the expression of “acting in any manner prejudicial to the maintenance of public order”, the fallout and the extent and reach of the alleged activities must be of such a nature that they travel beyond the capacity of the ordinary law to deal with him or to prevent his subversive activities affecting the community at large or a large section of society. It is the degree of disturbance and its impact upon the even tempo of life of the society or the people of a locality which determines whether the disturbance caused by such activity amounts only to a breach of “law and order” or it amounts to breach of “public order” ”. There can be no gainsaying that running a brothel house is a greater evil which prejudicially affect the interests of the society or a portion thereof. The act of an individual who gets attracted to the brothel house cannot be viewed in isolation as an individual act de hors its ramifications on the fabric of the society or a part thereof. The family life of the individual not only gets affected nay the society suffers eventually since it certainly has insidious affect on the public health. A clear public policy is discernable in having enacted the Act, 1956 so as to eradicate such social evil. The view expressed by a Division Bench of this Court in BOYA CHINNA SUBBARAYUDU v. THE COLLECTOR AND DISTRICT MAGISTRATE, KURNOOL AND OTHERS may profitably be excerpted hereunder in para 6 thus: “It is therefore clear that a person who is a boot-legger by reason of his indulging in acts in contravention of the provisions of the A.P. Excise Act, the rules and the notifications and the orders made under the that Act cannot be detained under Section 3(1) of the Act unless the acts in which he is indulging affect or likely to affect adversely the maintenance of public order. In other words only if the activities of the boot-legger cause “grave or widespread danger to life or public health” he can be detained. If a boot- legger sells illicit distilled arrack which contains harmful substances, certainly he can be detained on the ground that his activities constitute grave danger to life or public health.” [Emphasis is mine] Nonetheless, it shall be the subjective satisfaction of the authority, which passes the detention order affecting the life and liberty of an individual on objective considerations. A reconnaissance of the precedential jurisprudence on the point is expedient and would help understanding the areas which are entrusted to the Judiciary and Executive to act and the limitations engrafted on those functionaries in the realm of preventive detention law. In BHIM SEN v. THE STATE OF PUNJAB a three Judge Bench of the Apex Court held at pages 23 and 24 thus: “An order of detention to prevent black-marketing cannot be held to be illegal merely because in the grounds for such detention the detaining authority has referred only to the past activities of the person detained, inasmuch as instances of past activities may give rise to a subjective mental conviction that it is necessary to detain such person to prevent him from indulging in black-marketing in the future. Under the Preventive Detention Act, 1950, the test as to whether an order of detention should be made is the subjective satisfaction of the detaining authority; the Court has no power to consider whether the grounds supplied by the authority are sufficient to give rise to such satisfaction. The establishment of the Advisory Board by the Amending Act of 1951 has not made the matter a justiciable one, and even after the Amending Act the Court has no power to consider whether the grounds supplied are sufficient for making an order of detention.” [Emphasis is mine] In SODHI SHAMSHEER SINGH v. STATE OF PEPSU yet another three Judge Bench of the Apex Court held in para 4 thus: “The propriety or reasonableness of the satisfaction of the Central or the State Government upon which an order for detention under S.3, Preventive Detention Act is based, cannot be raised in this court and we cannot be invited to undertake an investigation into sufficiency of the matters upon which such satisfaction purports to be grounded. We can, however, examine the grounds disclosed by the Government to see if they are relevant to the object which the legislation has in view, namely, the prevention of objects prejudicial to the defence of India or to the security of State and maintenance of law and order therein.” [Emphasis is mine] On facts, that was a case where the detenus were said to have published and distributed pamphlets containing filthy and abusive language and assailing the character and integrity of the Chief Justice of Pepsu attributing gross partiality and communal bias in the matter of recruiting officers to judicial posts and also in deciding cases between the litigants. Under the circumstances, it was held that publication or distribution of those pamphlets could not have any rational connection with the maintenance of law and order in the State or prevention of acts leading to disorder or disturbance of public tranquility. In RAMESHWAR LAL v. STATE OF BIHAR in para 7 the Apex Court held thus: “The formation of the opinion about detention rests with the Government or the officer authorized. Their satisfaction is all that the law speaks of and the courts are not constituted an appellate authority. Thus the sufficiency of the grounds cannot be agitated before the court. However, the detention of a person without a trial, merely on the subjective satisfaction of an authority however high, is a serious matter. It must require the closest scrutiny of the material on which the decision is formed leaving no room for errors or at least avoidable errors. The very reason that the courts do not consider the reasonableness of the opinion formed or the sufficiency of the material on which it is based, indicates the need for the greatest circumspection on the part of those who wield this power over others. Since the detenu is not placed before a Magistrate and has only a right of being supplied the grounds of detention with a view to his making a representation to the Advisory Board, the grounds must not be vague or indefinite and must afford a real opportunity to make a representation against the detention. Similarly, if a vital ground is shown to be non-existing so that it could not have and ought not to have played a part in the material for consideration, the Court may attach some importance to this fact.” [Emphasis is mine] In the process, the Apex Court relied upon a Judgment of the Federal Court in KESHAV TALPADE v. KING EMPEROR wherein it was observed thus: “…… The detaining authority gave here two grounds for detaining the petitioner. We can neither decide whether these grounds are good or bad, nor can we attempt to assess in what manner and to what extent each of these grounds operated on the mind of the appropriate authority and contributed to the creation of the satisfaction on the basis of which the detention order was made. To say that the other ground, which still remains, is quite sufficient to sustain the order, would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute. In such cases, we think, the position would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole.” In BHUT NATH METE v. STATE OF WEST BENGAL in para 14 the Apex Court held thus: “The District Magistrate should be bona fide satisfied about the prejudicial activities of the detainee. Absence of bona fides in this context does not mean proof of malice, for an order can be mala fide although the officer is innocent. The important point is that the satisfaction of the public functionary, so subjective, must be real and rational, not colourable, fanciful, mechanical or unrelated to the objects enumerated in Section 3(1) of the Act.” [Emphasis is mine] In SAMIR CHATTERJEE v. STATE OF WEST BENGAL in para 7 Apex Court held thus: “The detaining authority when he comes to know that the petitioner was going to be discharged from the criminal cases for want of sufficient evidence for successful prosecution can very well take the view that it was necessary for the purpose of preventing the petitioner from acting in a manner prejudicial to the maintenance of public order that he should be detained and if he is satisfied on the evidence available his subjective satisfaction cannot be questioned by this Court.” The Apex Court in this case considered two incidents as having the effect of affecting the public order. In the first incident, the detenu and his associates as well as 25 others assembled and formed a violent mob outside the walls of the workshop and continued to pelt brickbats for over two hours. That incident very clearly took place in a public place. Having regard to the fact that the members of the public passing to and fro and this incident would have caused fear and alarm not merely to the persons working in the factory but also to people passing along the road, the Court held that it affects the public order. Similarly in the second incident the detenu and others were armed with pistol and bombs, exploded the bombs with a view to terrorising the local people as well as the workers and widespread panic and confusion was created in the above area. That too was considered as having the affect on the public order. In KHUDIRAM DAS v. STATE OF WEST BENGAL a four Judge Bench of the Apex Court held in para 8 thus: “The matters which have to be considered by the detaining authority are whether the person concerned, having regard to his past conduct judged in the light of the surrounding circumstances and other relevant material, would be likely to act in a prejudicial manner as contemplated in any of sub-clauses (i), (ii) and (iii) of clause (1) of sub-section (1) of Section 3, and if so, whether it