*THE HON'BLE MR JUSTICE B.PRAKASH RAO And *THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY + Writ Petition No.1725 of 2008 % Dated 28.02.2008 # Pamula Pitchaiah. ….Petitioner $ The Government of A.P., rep. by Chief Secretary and others. ….Respondents ! Counsel for the Petitioner : Sri A.Prabhakar Rao ^ Counsel for Respondents : Advocate General < GIST: > HEAD NOTE: ? Cases referred: 1. AIR 1975 SUPREME COURT 134 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY EIGHTH DAY OF FEBRUARY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.PRAKASH RAO and THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 1725 of 2008 Between: Pamula Pitchaiah, s/o. Kattaiah, R/o. Ramalaxmipuram Village, Kodad Mandal, Nalgonda District. ..... PETITIONER AND 1 The Government of Andhra Pradesh, Rep by Chief Secretary, Secretariat, Hyderabad. 2 The Collector & District Magistrate, Nalgonda District, Nalgonda. 3 The Superintendent of Central Prison, Warangal Warangal District. .....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, order or direction in the nature of Habeas Corpus by directing the respondents to produce the detenue Pamula Srinu S/o. Pitchaiah, Resident of Ramalaxmipuram Village, Kodad Mandal, Nalgonda District, now detained in Central prison, Warangal before this Honourable court and set him at liberty by declaring the detention order dated 17-12-2007 in Rc.No. 1117/2007/C2 passed by the 2nd respondent herein which was approved and confirmed by the 1st respondent herein vide GO Ms.No. 297 General Administration (Law & Order-II) Department, dt. 17-1-2008 as illegal and arbitrary. Counsel for the Petitioner: MR.A.PRABHAKAR RAO Counsel for the Respondents: THE ADVOCATE GENERAL The Court made the following : THE HON'BLE MR JUSTICE B.PRAKASH RAO and THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 1725 of 2008 ORDER: (Per the Hon’ble Mr Justice L.Narasimha Reddy) The petitioner seeks a writ of Habeas Corpus, in relation to an order of detention, dated 17.12.2007, passed by the 2nd respondent and approved by the 1st respondent vide their orders in G.O.Rt.No.297, General Administration (Law & Order-II) Department, dated 17.01.2008, in respect of Pamula Srinu, son of the petitioner. The petitioner and his son, the detenue, are eking out their livelihood by cultivating small extents of land in Ramalaxmipuram Village, Kodad Mandal, Nalgonda District. The order of detention was passed by the 2nd respondent in exercise of powers under Section 3(1) & (2) read with Section 2(a) & (b) of the Andhra Pradesh Prevention of Dangerous Activities of Boot Leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short ‘the Act’), alleging that the detenue was indulging in the activities of boot legging and manufacture and supply of illicit liquor. The order of detention is assailed on several grounds. It is pleaded that several irrelevant considerations were taken into account, while passing the impugned order. It is alleged that though as many as six cases filed against the detenue were referred to in the order of detention, only three cases constituted the basis of grounds. Another contention advanced by the petitioner is that the allegations against the detenue, in the cases mentioned in the order of detention, are trivial in nature and all the cases are spread over a period of about six months. It is further contended that ever since the detenue was released on bail by a criminal Court, no fresh acts were noticed and in that view of the matter, there is no basis for the order of detention. The 2nd respondent filed a counter affidavit. He stated inter alia that though reference is made to six criminal cases, only those mentioned in the grounds of detention, constituted the basis, and the others were referred to, in the context of the criminal background of the detenue. It is urged that the material recovered from the detenue, such as F.J.Wash and illicit liquor, were found on chemical analysis to be injurious to health. It is also urged that the steps taken by the State, in accordance with the ordinary provisions of law, did not have the desired effect and that the order of detention was passed in the public interest. Sri A.Prabhakar Rao, learned counsel for the petitioner submits that the order of detention is a clear case of non- application of mind, inasmuch as the detaining authority was not clear as to the nature of activities alleged against the detenue. He contends that when, in clear terms, the 2nd respondent stated that he took only three cases into account, reference to as many as six cases in the order of detention discloses that irrelevant considerations were taken into account. Placing reliance upon certain decided cases, learned counsel submits that the order of detention does not accord with law. Learned Advocate General for the respondents, on the other hand, submits that the order of detention was passed by the 2nd respondent almost as a last resort, unable to control the nefarious activities of the detenue. He submits that there existed ample material to invoke the power of the 2nd respondent, under the relevant provisions of the Act, to order the detention of the son of the petitioner. According to him, though as many as six cases were mentioned, in the preamble to the order of detention, what actually weighed with the respondents is reflected in the grounds of detention and in that view of the matter, it cannot be said that the order is vitiated in any manner. The Act empowers the authority mentioned therein, to pass an order of preventive detention, with reference to several activities, such as boot legging, decoity, goondaism, immoral traffic, land grabbing etc. The object is to ensure that the persons accused of habitually resorting to such acts are prevented from doing so. In the instant case, the order of detention is passed by invoking the power under Section 3(1)& (2) of the Act, alleging that the detenue is acting in a manner prejudicial to the maintenance of public order by resorting to the acts of boot legging. Therefore, proper basis must exist with reference to those activities, in the order of detention. The order, dated 17.12.2007, is somewhat brief in its content. Barring the paragraphs, which are procedural in nature, the relevant portion reads as under: “Whereas information is laid before me that Sri Pamula Srinu, W/o. Pichaiah, aged about 28 years, Caste: S.C.I, Occupation: Cooli and R/o. Ramalaxmipuram Village, Kodad Mandal, Nalgonda District is involved himself in committing the offecnes of possession, transport, sale/distribution of illicitly distilled Liquor/Manufacture of I.D.Liquor in contravention of Section 7(A) read with 8(e) of AP Prohibition (Amendment) Act, 195 and also abating the commission of the said illegal activities and thus is a boot legger, that the activities of the said boot-legger are directly causing and calculated to cause widespread danger to pubic health and felling of insecurity in the locality named Ramalaxmipuram Vilage and its surrounding areas of Kodad Mandal, as evident from the record plced before me in Crime Nos.681/2006-07 Dated: 22-12-2007, 661/2006- 07, Dated: 04-01-2007, 726/2006-07 dated: 11-02-2007, 29/2007-08, dated:20.04.2007 and 167/2007-08, dated : 06- 07-2007 and 257/2007-08 Dated: 09-08-2007 of Kodad Proh. & Excise Station. Thus the activates of the boot- legger are affecting and also likely to effect adversely the maintenance of public order in the area named Ramalaxmipuram Village its surrounding areas of Kodad Mandal.” A perusal of the above paragraph discloses that the activities said to have been resorted to by the detenue are evident in the allegations contained in the six cases viz., Crime Nos.661, 691, 726 of 2006-07 and Crime Nos.29, 167 and 257 of 2007-08. In clear and unmistakable terms, the respondents indicated that it is the involvement of the detenue in the six cases, referred to above, that convinced them, in forming an opinion. His subjective satisfaction is the cumulative effect of all the cases, referred to above. The Act as well as the relevant provisions of the Constitution of India i.e., Article 22, mandates that apart from serving an order of detention, the detaining authority must also furnish the grounds of detention, together with the supporting material. It is only then that the detenue would be in a position to understand the basis, on which he was subjected to preventive detention. Since the valuable right of trial before detention is denied, compliance with the said requirement is mandatory. The various Judgments rendered by the Supreme Court as well as this Court, on this aspect, indicate that any deviation from the settled procedure would vitiate the order of detention. The very necessity of requiring the detaining authority to furnish the grounds of detention is to ensure that what is precisely mentioned in the order of detention is elaborated in the grounds. There must be a close nexus and coherence between the precise statement contained in the order of detention, and the detailed elaboration made in the grounds of detention. In the absence of the same, it would be difficult to understand the mind of the detaining authority, be it by the Advisory Board or the High Court. It is not in dispute that in the grounds furnished to the detenue along with the order of detention, mention was made only of three cases viz., Crime Nos. 29, 167 and 257 of 2007-08. We cannot go into the substance or merit of the allegations in the said cases. One aspect, which we noticed, on verification of the three grounds, is that though it was alleged that the detenue was arrested on 20.07.2007, they are silent as to the date, on which he was released on bail. That fact assumes significance in the context of the third case viz., Crime No.257 of 2007-08, having been registered hardly within two weeks from the date of arrest. It was alleged that as on 09.08.2007, the detenue was absconding. That, however, is a different aspect. It has already been noticed that in the order of detention, mention was made to six cases, whereas the grounds of detention cover only three cases. In Paragraph 7 of his counter affidavit, the 2nd respondent stated as under: “In reply to para.3 of the affidavit, it is submitted that I relied on three crimes i.e., C.R.No.29/2007, dated 18.5.2007, C.R.No.167/2007-08, dated 6.7.2007 and C.R.No.257/2007-08, dated 9.8.2007 and passed the order of detention against the detenu. It is submitted that the ‘history and the introduction’ in the Grounds of detention revealed that he was involved in bootlegging activities during the excise year 2006-07, for which crimes were registered against him. It is submitted that I passed the order of detention against the detenu on 17.12.2007, relying on only three grounds of detention. The history and introduction was mentioned in the grounds of detention only to show the past conduct of the detenu. As such it cannot be said that the detention order was passed based on six crime registered against the detenu. It is submitted that the Chemical Analysis report in the three crimes relied on by me show that the sample is “illicitly distilled liquor containing sediment. They are injurious to health and unfit for human consumption.” As such it necessitated me to pass the order of detention on justifiable grounds, against the detenu with a view to curb his illegal activities. As such it cannot be said that the detention order was passed mechanically.” From this, it becomes clear that he based his opinion or subjective satisfaction only on the three cases, which constituted the subject matter of the grounds. He states that the other three cases were mentioned in the order of detention, only to state the historical background of the detenue. The same is reiterated in paragraph 8 of the counter affidavit. In our view, this fact is sufficient to hold that the order of detention is vitiated. The reason is that if an order of detention is passed on the basis of certain number of events and one or some of them are found to be irrelevant or not taken into account, by the detaining authority, the whole order becomes vitiated. The leading authority on this aspect is the Judgment of the Supreme Court in Dwarika Prasad vs. State of Bihar[1]. The relevant portion, in the words of the Supreme Court, reads as under: “If there is one principle more firmly established than any other in this field of jurisprudence, it is that even if one of the grounds or reasons which led to the subjective satisfaction of the detaining authority is non-existent or misconceived or irrelevant, the order of detention would be invalid and it would not avail the detaining authority to contend that the other grounds or reasons are good and do not suffer from any such infirmity, because it can never be predicated to what extent the bad grounds or reasons operated on the mind of the detaining authority or whether the detention order would have been made at all if the bad ground or reason were excluded and the good grounds or reasons alone were before the detaining authority.” The said principle gets straight away attracted to the facts of the instant case. On this short ground, the writ petition is allowed and the order of detention, dated 17.12.2007, passed by the 2nd respondent and approved by the 1st respondent, vide their orders in G.O.Rt.No.297, General Administration (Law and Order-II) Department, dated 17.01.2008 is set aside. The detenue, by name Pamula Srinu, son of the petitioner, shall be set at liberty forthwith, if he is not required in any other case. ____________________ B.PRAKASH RAO, J ________________________ L.NARASIMHA REDDY, J Date: 28.02.2008 Note: L.R.copy to be marked. (B/o) JSU ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{RLD} THE HON'BLE MR JUSTICE B.PRAKASH RAO And THE HON'BLE MR JUSTICE L.NARASIMHA REDDY Writ Petition No.1725 of 2008 (Judgment of the Bench delivered by Hon’ble Mr Justice L.Narasimha Reddy) Date: 28.02.2008 [1] AIR 1975 SUPREME COURT 134