THE HON’BLE SRI JUSTICE V ESWARAIAH AND THE HON’BLE SRI JUSTICE V SURI APPA RAO WRIT PETITION NO. 29805 OF 2010 Between: Pulicheri Vani … Petitioner And The Collector and District Magistrate, Warangal and another … Respondent Counsel for the Petitioner: Sri D Bhaskar Reddy Counsel for respondents: The learned Advocate General The Court made the following ORDER: THE HON’BLE SRI JUSTICE V ESWARAIAH AND THE HON’BLE SRI JUSTICE V SURI APPA RAO WRIT PETITION NO. 29805 OF 2010 ORDER : (Per Sri Justice V Eswaraiah) The present writ of Habeas Corpus is filed seeking a direction to the respondents to produce Mr. Pulicheri Chander S/o Yellaiah, resident of Kasibugga, Warangal, now detained in Central Prison, Warangal and for consequential order to release him declaring his detention as illegal. The petitioner herein is wife of detenue, who is presently detained in Central Prison, Warangal pursuant to the orders passed by the first respondent in Rc.No.1156/2010/P&E/A4 dated 09.09.2010 under Section 3 (1) (2) read with section 2 (a) & (b) of A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short Act, 1986), ordering detention of Mr. Pulicheri Chander S/o Yellaiah to further prevent him from indulging in such dangerous activities prejudicial to the maintenance of public order and public health and to lodge him in Central Prison, Warangal. The allegation against the detenue is that he is repeatedly indulging in illegal business on a large scale in a clandestine manner at regular intervals violating the provisions under A.P. Excise Act and the Rules made thereunder. It is stated in the order dated 9.9.2010 that the records pertaining to cases detected against detenue by the Prohibition and Excise Officials of Warangal, would clearly show that he is repeatedly involved in number of cases of possession and sale of I.D. liquor in the past and also continuing the same and he was arrested in C.O.R No. 167/2009-10 dated 17.8.2009, C.O.R.No. 301/2009-10 dated 7.11.2009 and C.O.R.No. 110/2011 dated 3.6.2010 while in possession and sale of 20 litres, 160 litres and 120 litres of I.D. liquor respectively. That in all the said three cases the detenue was arrested and released on bail, as per the bailable provisions under the law and thereby the department is unable to prevent him from further indulging in dangerous activities, which adversely affecting public health and public order. It is also observed that the provisions under Prohibition Laws are found to be insufficient in ordinary course to deal firmly since the detenue is repeatedly indulging in dangerous bootlegging activities and affecting public health and public order. The detention order dated 9.9.2010, was approved by the Government vide G.O.Rt No. 4648 dated 17.9.2010 and it was forwarded to Advisory Board constituted under Section 9 of the Act, 1986 for review of the detention order. The Advisory Board, after hearing the detenue, his wife and relatives and the Investigating officers and on perusal of the material available on record opined that there is sufficient cause for the detention of the detenue and in exercise of powers conferred under Sub-section (1) of Section 12 read with section 13 of the Act, confirmed the detention vide orders in G.O.Rt.No.4943 dated 5.10.2010. A counter affidavit is filed by the first respondent justifying the detention order referring cases in C.O.R No. 167/2009-10 dated 17.8.2009, C.O.R.No. 301/2009-10 dated 7.11.2009 and C.O.R.No. 110/2011 dated 3.6.2010 wherein the detenue is stated to have been found in possession and sale of 20 litres, 160 litres and 120 litres of I.D. liquor respectively and the samples of which were sent to analysis and the analysis report confirms that the subject illicit liquor contains sediments and it is injurious to health and not fit for human consumption. It is thus contended that to prevent the detenue from further indulging in similar offences in future the order of detention was passed on 9.9.2010 and the same is justified. Learned counsel for petitioner Mr D Bhaskar Reddy submitted that the reasons mentioned in the detention order that the detenue is repeatedly indulging in illegal possession and sale of I.D.liquor which is injurious to public health and that he was arrested in three crimes while in possession of I.D. liquor and released on bail as per the bailable provisions of law and that the prohibition laws are found to be insufficient in ordinary course to deal firmly with the repeatedly indulging dangerous bootlegging activities etc, do not attract invoking the provisions of Act, 1986 and that the first respondent has not applied its mind while passing the detention order, which was mechanically approved by the Government and confirmed by the Advisory Body. Hence, sought for setting aside the detention order. The Assistant Government Pleader, representing the learned Advocate General justified the detention order and submitted that it needs no interference from this Court. Heard the learned counsel for petitioner, learned Assistant Government Pleader and perused the entire material available on record, including the order of detention. Section 7-A of A.P. Prohibition Act, 1995 (for short the Act, 1995) prohibits ‘the production, manufacture, storage, possession, collection, purchase, sale and transport of arrack’ and that Section 8 deals with punishment for buying, selling, consumption of liquor. Section 8 (e) of the Act, 1995, which deals with punishment, reads as under; “….. (e) contravenes the provisions of Section 7- A shall on conviction be punished with imprisonment for a term which shall not be less than one year but which may extend upto five years and with fine which shall not be less than rupees ten thousand but which may extend upto rupees one lakh.” The first schedule of Criminal Procedure Code, deals with classification of offences i.e., cognizable, non cognizable, bailable and non-bailable offences under Indian Penal Code and also other laws. If the punishment is of imprisonment of three years but not more than seven years, it is a cognizable offence and if the punishment is less than three years or with fine only is a non congnizable offence. As per the schedule in Criminal Procedure Code, if the punishment is with imprisonment for less than three years or with fine alone is bailable but if the punishment is not less than three years, it is non bailable offence. In terms of Section 8 (e) of the Act, 1995, the contravention of Section 7-A of the Act, 1995, shall on conviction be punished with imprisonment for a term which shall not be less than one year but which may extend up to five years and with fine which shall not be less than rupees ten thousand but which may extend up to rupees one lakh. Whereas, section 11- A of the Act, 1995, has an over-riding effect over the Code of Criminal Procedure, and no Court shall grant any bail to any person accused of an offence under sub-clause (i) or sub-clause (ii) or sub-clause (iii) of clause (b) or under clause (e) of Section 8, unless the prosecuting officer is given an opportunity to oppose the application and the Court shall record reasons while granting the bail. Therefore, undoubtedly, the offence of contravention of section 7-A, punishable under section 8 (e) of the Act, 1995 is a non-bailable offence and prosecution can as well oppose grant of bail. The Division Bench of this Court in W.P. No. 11763 of 2008 while dealing with similar issue by order dated 15.7.2008, following the judgment of the Supreme Court in SUNILA JAIN Vs. UNION OF INDIA[1] held that the offence under Section 7-A read with Section 8 (e) of the Act,1995, is not a bailable offence and it is a non-bailable and cognizable one. The relevant portion of which reads as under. 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.” In the present case, the first respondent/District Collector, has passed the impugned order dated 9.9.2010, based on the information laid before him by the Prohibition and Excise Superintendent to the effect that the detenue was arrested in three cases and was granted bail in said cases, as per the bailable provisions of law and that the Prohibition Laws are found to be insufficient in ordinary course to deal firmly with the persons repeatedly indulging in dangerous bootlegging activities affecting the public health and public order. In the above three cases the detenue was released on bail by orders dated 21.8.2009, 20.11.2009 and 21.6.2010 respectively on furnishing a bond for Rs.10,000/- with two sureties each in a like sum with condition to appear before the concerned Station House Officer on specified days. It is not the case of the respondents that they have opposed grant of bail to the detenue and in spite of same, bail was granted to the detenue. It is to be noticed that the offence under Section 7-A read with Section 8 (e) of the Act,1995 is a non-bailable and cognizable one and there was sufficient opportunity for the Prosecuting Agency to oppose granting of the bail, however, it cannot be said that the provisions under the Prohibition Laws are insufficient in ordinary course to deal firmly with the dangerous bootlegging activities and preventing the detenue with committing such offences in future. It is also relevant to note that there is no investigation made by the Prohibition officials to find the source of I.D. liquor as to who are the manufacturers, who are possessors and sellers and no material was placed before the detention authority in this regard. No doubt the detenue is said to have been found in possession and sale of I.D liquor which is detriment to the public interest and public order and liable to punishment, but it cannot be said that the provisions of the Prohibition Laws are not sufficient to prevent the detenue from further indulging with such activities. Therefore, it is clear that these aspects have not been taken into consideration by the detaining authority and we are of the opinion that the detaining authority has not applied its 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. Hence, the detention order in Rc.No.1156/2010/P&E/A4 dated 9.9.2010, which has been approved by the Government vide G.O.Rt No. 4648 dated 17.9.2010 and the Confirmation order passed by the first responent vide G.O.Rt No. 4943 dated 5.10.2010 are hereby set aside and the writ petition is accordingly allowed. The detenue Viz., Mr Pulicheri Chander shall be released forthwith, if not required in any other case. Accordingly, the writ petition is allowed. No costs. ______________ V.ESWARAIAH,J ________________ V SURI APPA RAO,J DATE: 31.1.2011 TVK THE HON’BLE SRI JUSTICE V ESWARAIAH AND THE HON’BLE SRI JUSTICE V SURI APPA RAO WRIT PETITION NO. 29805 OF 2010 Date: 31.1.2011 [1] (2006) 3 SCC 321