THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO DATED: 29-06-2011 WRIT PETITION No. 9121 OF 2011 Between: B. Sadanand ..... PETITIONER AND The State of Andhra Pradesh, through the Collector and District Magistrate, Hyderabad at Hyderabad and two others .....RESPONDENTS THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO WRIT PETITION No. 9121 OF 2011 ORDER: (per Sri A. Gopal Reddy, J) In this application filed for issuance of writ of habeas corpus, the petitioner challenges the detention order passed by the Collector and District Magistrate, Hyderabad in proceedings No. C2/856/2011, dated 15-03-2011 in exercise of the power under Section 3(1) & (2) read with Section 2(a) & (b) of A.P. Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (Act 1 of 1986), detaining A. Arun, son of Sri Hari (hereinafter referred to as ‘the detenu’) who is his distant relative/younger brother. It is stated that the grounds of detention of even date are furnished to the detenu along with the detention order. The said detention order has been approved by the Government in G.O.Rt.No.1239, General Administration (Law & Order-II) Department, dated 22-03-2011 and confirmed in G.O.Rt.No.1522, General Administration (Law & Order-II) Department, dated 11-04-2011. The alleged activities of the detenu as set out in the grounds of detention, dated 15-03-2011 are that prior to the detention, he was booked in the following cases by the Prohibition and Excise Department officials of Hyderabad: 1. Cr.No.1296/2010-11 dated 30-09-2010 of Excise Station, Dhoolpet registered under Section 7(A) read with Section 8(e) of the Andhra Pradesh Prohibition Act, 1995 - the alleged detenu was found to have been in possession of 459 illicit distilled liquor sachets each containing 100 ml. 2. Cr.No.1008/2010-11 dated 24-08-2010 of Excise Station, Dhoolpet registered under Section 7(A) read with Section 8(e) of the Andhra Pradesh Prohibition Act, 1995 - the alleged detenu was found to have been in possession of 918 illicit distilled liquor sachets each containing 100 ml. 3. Cr.No.633/2010-11 dated 15-07-2010 of Excise Station, Dhoolpet registered under Section 7(A) read with Section 8(e) of the Andhra Pradesh Prohibition Act, 1995 - the alleged detenu was found to have been in possession of 369 illicit distilled liquor sachets each containing 100 ml. 4. Cr.No.259/2010-11 dated 09-03-2011 of Excise Station, Golconda registered under Section 7(A) read with Section 8(e) of the Andhra Pradesh Prohibition Act, 1995 - the alleged detenu was found to have been in possession of 2000 illicit distilled liquor sachets and 100 litres of illicit distilled liquor. According to the petitioner, in all the first three cases registered against the alleged detenu, he was arrested and produced before the concerned Magistrate and was later released on bail. Insofar as the fourth crime i.e., Cr.No.259/2010-11 dated 09-03-2011 is concerned, the alleged detenu was arrested and was remanded to judicial custody and lodged in Chanchalguda Jail. In all the first three cases, the contraband was sent for chemical analysis to the Government Chemical Examiner who gave his reports on 07-10-2010, 04-09-2010 and 21-07-2010 opining that the samples are illicitly distilled liquor and unfit for potable purpose. In the last case, the samples were drawn but no steps have been taken to send the same for chemical analysis as on the date of passing of the detention order. Questioning the detention order, the present writ petition is filed contending that when the detenu was in jail, the detention order was passed with total non- application of mind. The detaining authority though noted that the detenu was in jail has not recorded that there are compelling reasons such as that the detenu is likely to be released from custody in the near future and the nature of the antecedents and activities of the detenu indicate that he is likely to indulge in similar activities if released and therefore it is necessary to detain him in order to prevent him from engaging in such activities. Therefore, ground No.4 mentioned in the detention order is irrelevant which vitiates the detention itself. A detailed counter affidavit is filed by the Collector and District Magistrate who passed the impugned detention order mentioning the grounds of detention and stating that all the crimes registered against the alleged detenu disclose that he was found in possession of huge quantities of illicitly distilled liquor and that on perusing the material placed before him, he satisfied that the alleged detenu should be detained from indulging any further and thereby the order of detention has been passed. It is stated that the grounds of detention and the material relied upon by him for passing the impugned order were served on the detenu in Hindi and English languages duly informing him that he has a right to make a representation to the detaining authority i.e., Chief Secretary to the Government and Advisory Board. Thus, he has complied with the constitutional and statutory mandate. The detention order has been approved by the Government in G.O.Rt.No.1239, General Administration (Law and Order-II) Department, dated 22-03-2011 and the matter has been placed before the Advisory Board in its meeting held on 31-03-2011. The Advisory Board after hearing the petitioner and the investigating officer and after perusing the records opined that “there is sufficient cause for the detention of the detenu A. Arun, S/o Srihari”. Basing on the said opinion, the Government issued G.O.Rt.No. 1522, General Administration (Law and Order-II), Department, dated 11-04-2011 confirming the order of detention for a period of 12 months from the date of his detention i.e., 16-03-2011. It is stated that the detenu was enlarged on bail in the first three cases registered against him and he did not mend his illegal activities and was caught in the fourth crime and was taken into judicial custody. The authority after considering the relevant material passed the detention order as his activities are prejudicial to the maintenance of public order and the same have to be curbed. In para 11 of the counter, it is specifically stated that in the fourth crime the detenu was taken into custody on 09-03-2011 and the contraband and the seized samples were sent for analysis. Subsequently, it was brought to his notice that the analyst has opined in his report dated 23-03-2011 that the contraband was illicitly distilled liquor unfit for human consumption and injurious to health which was sufficient to detain him. Sri B.V. Bakshi, learned counsel for the petitioner strenuously contended that the detention order passed by the Collector and the District Magistrate is in total non-application of mind. According to him, non-receipt of chemical analyst report in the fourth crime is an irrelevant ground and when even if one ground is irrelevant, the whole order stands vitiated. In support of the same, he placed reliance on the judgments of this Court in Dhanraj Singh v. Government of A.P[1] and S. Jayamma vs. Collector and District Magistrate[2]. He further argued that mere selling or transportation of illicit liquor itself cannot be a ground for detention unless something is shown to have been done by the detenu which adversely affects the maintenance of public order. In support of his contention, he relied on the judgment of the Supreme Court in Rashidmiya and Chhava Ahmedmiya Shaik vs. Police Commissioner, Ahmedabad and another[3]. On the other hand, the learned Government Pleader seeks to sustain the detention order contending that in all the three crimes, the detenu was arrested and produced before the learned Magistrate and later enlarged on bail which itself shows that he is likely to be released on bail in the last case i.e., Crime No. 259/2010-11, dated 09-03-2011. She further contended that merely because the detenu is in judicial custody, the same will not prevent the authority from passing the detention order when the authority satisfies that such detention is necessary to maintain public order and public health. Admittedly in the present case, in all the first three cases registered earlier against him, the detenu was released on bail and the chemical analysis report with regard to the said cases disclosed that the contraband seized is illicitly distilled liquor and is unfit for potable purposes. This Court in Dhanraj Singh v. Govt. of A.P[4] held that where the report of the Chemical Examiner states that the illicitly distilled liquor is unfit for potable purpose, it has to be implied that if such an illicitly distilled liquor is consumed, it gives grave or widespread danger to life or public health. It cannot be emphasised that such illicitly distilled liquor is sold in any part of the State, the danger is widespread and grave as it is not fit for potable purpose. It was further held that if the report is indicative of the fact that the illicitly distilled liquor is unfit for potable purpose, it impliedly means that consumption of such a liquor would cause danger to life and public health and it affects the public order. In view of the same, we do not find any merit in the contention advanced by the learned counsel for the petitioner that mere selling or transportation of illicit liquor itself cannot be a ground for detention unless something is shown to have been done by the detenu which adversely affects the maintenance of public order. Insofar as ground No.4 is concerned, crime was registered, detenu was arrested and taken into judicial custody. It is nowhere stated in the detention order that bail application is filed by the detenu and there is likelihood of his being released on bail as was done in the first three cases to arrive at a subjective satisfaction. The grounds of detention are silent in that regard. The Supreme Court in Rekha vs. State of T.N[5] held that there should be a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail, in such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed. In the present case, the detaining authority while passing the impugned order has not made a mention that the detenu is likely to be released as was released in the first three cases when the bail application is made by him and that there is possibility of his again indulging in similar activities on such release. Therefore, the order passed by the detaining authority is vitiated and ground No.4 mentioned by the authority is an irrelevant ground. In view of the same, the detention order is liable to be set aside. In the result, the writ petition is allowed. The detention order dated 15-03-2011 as approved by the Government in G.O.Rt.No.1239, General Administration (Law & Order-II) Department, dated 22-03- 2011 is quashed. The detenu A. Arun, son of Sri Hari is set at liberty forthwith if he is not required in any other case. A.GOPAL REDDY, J RAJA ELANGO, J 29-06-2011 ks [1] 1997 (3) ALD 390 [2] 2004 (3) ALD 458 [3] AIR 1989 SC 1703(1) [4] 1997 (3) ALD 390 [5] (2011) 5 SCC 244