THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLESRI JUSTICE RAJA ELANGO W.P.No.13219 of 2011 Date of Order: 04-07-2011 Between: Satish Singh ..Petitioner and 1. State of A.P. rep. by its Principal Secretary, General Admn. (Law & Order II) Department, Secretariat, Hyderabad and another ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLESRI JUSTICE RAJA ELANGO W.P.No.13219 of 2011 Order: (Per Hon’ble Sri Justice A.Gopal Reddy) 1. The second respondent—Collector and District Magistrate, Hyderabad in exercise of powers conferred under Section 3(1) r/w 2(a) and (b) 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 1/1986”) passed the detention order dated 06-04-2011, directing the detention of Satish Singh s/o Ramesh Singh with a view to prevent him from indulging in further activities prejudicial to maintenance of public order in and around Dhoolpet station limits, Hyderabad District for a period of twelve months from the date of detention i.e. 06-04-2011. 2. The grounds of detention of even date and material relied upon were served on the detenu in both languages, English and Hindi duly informing that he has a right to make representation against the detention to the Detaining Authority, Advisory Board and also to the Chief Secretary to Government. On approval of detention in G.O.Rt.No.1587 dated 16-04-2011, the matter was placed before the Advisory Board, which met on 22-04-2011 and after hearing the detenu and Investigating Officer gave its opinion that there is sufficient cause for detaining the detenu. Basing on the recommendation of the Advisory Board the Government in G.O.Rt.No.1806, General Administration (Law & Order II) Department, dated 30-04-2011 confirmed the order of detention from the date of detention i.e. 06-04- 2011. 3. Questioning the detention order, the father of the detenu filed the present writ petition for the issuance of Habeas Corpus contending that in all the four crimes mentioned in the grounds of detention liquor seized is very small in quantity and detenu was not present at the time of seizure. For non-supply of bail applications and bail orders in all the four crimes vitiates the detention order. The detention order also do not indicate that the detenu was actually in jail at the time of passing detention order and the sponsoring authority did not place relevant material before the Detaining Authority at the time of passing the detention order. The factum of detenu was in judicial custody on the date of passing the impugned order was not within the knowledge of Detaining Authority and the order is passed in a mechanical manner. 4. The 2nd respondent, who passed the detention order, filed a counter stating that he satisfied that the detenu should be prevented from further indulging in similar offences and thereby passed the order of detention. On the date of passing the detention order the detenu was in judicial custody in connection with C.C.No.393 of 2009 on the file of Special Judicial First Class Magistrate for Excise Cases, Nampally, Hyderabad wherein NBW was issued against him, for which his remand was extended. By supplying the documents i.e. the grounds of detention and the material relied upon, in the language known to him i.e. Hindi informing that he had a right to make representation to the Detaining Authority, Chief Secretary to the Government and Advisory Board, the constitutional requirement has been complied with. In all the four crimes registered, detenu was in possession of ID liquor as mentioned therein. The detenu was arrested in Cr.No.1127/2010-11 on 13-09- 22010 and later he was released on bail. In Cr.No.1561/2010-11 he was arrested on 19-11-2010 and later on he was released on bail. In Cr.No.1779/2010-11 the detenu was arrested on 02-04-2011 and sent for judicial remand. Likewise, in Cr.No.06/2011-12 the detenu was arrested on 02-04-2011 and sent for judicial custody. The Detaining Authority placed reliance on the factum that the detenu was enlarged on bail in all the four crimes registered against him for arriving subjective satisfaction. Hence, it cannot be said that the order of detention does not indicate that the detenu was in judicial custody on the date of passing the detention order. 5. Sri Challa Dhanamjaya, learned counsel for the petitioner contends that on the date when the detention order was passed the detenu was in judicial remand and the detention order do not indicate about detenu filing any bail applications in the crimes mentioned in ground Nos.3 and 4. In the absence of the same, detention order is liable to be set aside, as it is total non-application of mind. 6. On the other hand, learned Government Pleader representing learned Advocate General sustained the detention order contending that in all crimes huge quantity of liquor was seized. The detenu was arrested in Cr.No.06/2011-12, dated 02-04-2011 in execution of NBW in C.C.No.393 of 2009 of Excise Station, Charminar, he was remanded to judicial custody. In the absence of any condition while enlarging the detenu on bail non- supply of the bail order will not vitiate the detention order. 7. The alleged activities as set out in the grounds of detention dated 06-04-2011 briefly stated as under: 1. Ground No.1 (Cr.No.1127/2010-11 dt.13-09-2010 of Excise Station, Dhoolpet): On 13-09-2010, on reliable information about illegal sale of illicit liquor at H.No. 14-10-656 Lalathaleem Dhoolpet, Hyderabad, the Excise Officials raided on the said place and detected 1567 illicit distilled liquor sachets each containing 100 ml. The investigating officer seized the contraband and drawn samples and case was registered against the detenu in COR No.1127/2010-11 of SHO Dhoolpet under Section 7(A) r/w 8(e) of A.P. Prohibition Act, 1995, produced before the court on 13-09-2010 for judicial remand and later on released on bail. 2. Ground No.2 (Cr.No.1561/2010-11 dt.10-11-2010 of Excise Station, Dhoolpet): On 10-11-2010, on reliable information about illegal sale of illicit liquor at open place in front of H.No.14-10-326 Takkerwadi Dhoolpet, Hyderabad the Excise Officials raided on the said place and detected 456 illicit distilled liquor sachets each containing 100 ml. The investigating officer seized the contraband and drawn samples and case was registered against the detenu in COR No.1561/2010-11 of SHO Dhoolpet under Section 7(A) r/w 8(e) of A.P. Prohibition Act, 1995, produced before the court on 19-11-2010 for judicial remand and later on released on bail. 3. Ground No.3 (Cr.No.1779/2010-11 dt.22-12-2010 of Excise Station, Dhoolpet): On 22-12-2010, on reliable information about illegal transportation of illicit liquor from Dhoolpet, the Excise Officials conducted route watch near Jummerath Bazar, Dhoolpet and detected 810 illicit distilled liquor sachets along with one Bajaj Chetak Scooter. The investigating officer seized the contraband and drawn samples and case was registered against the detenu in COR No.1779/2010-11 of SHO Dhoolpet under Section 7(A) r/w 8(e) of A.P. Prohibition Act, 1995, arrested on 02- 04-2011 produced before the Court for judicial remand. 4. Ground No.1 (Cr.No.06/2011-12 dt.02-04-2011 of Excise Station, Dhoolpet): On 02-04-2011, on reliable information about illegal transportation of illicit liquor from Dhoolpet, the Excise Officials conducted route watch near Gandhi Statute, Puranapool, Dhoolpet and detected 810 illicit distilled liquor sachets along with one Bajaj Chetak Scooter. The investigating officer seized the contraband and drawn samples and case was registered against the detenu in COR No.06/201-12 of SHO Dhoolpet under Section 7(A) r/w 8(e) of A.P. Prohibition Act, 1995, arrested on 02-04- 2011 produced before the Court for judicial remand. 9. In all the cases, referred to above, contra band liquor was seized by drawing samples and crimes were registered for the offence under Section 7(A) r/w 8(e) of A.P. Prohibition Act, 1995. In Cr.Nos.1127/2010-11, dated 13-09-2010 and 1561/2010-11, dated 10-11-2010 the detenu was arrested, produced before the Magistrate and sent to judicial remand and later on released on bail. In Cr.No.1779/2010-11 the detenu was absconding, whereas in Cr.No.06/2011-12 he was arrested on 02-04- 2011, produced before the Magistrate and was remanded to judicial custody. With regard to ground Nos.3 and 4, it is not stated whether the detenu moved any bail application for his release nor the order of detention refers to the detenu was subsequently enlarged on bail in Cr.No.1779/2010-11 and in Cr.N.06-2011-12 bail was ranted to him on 06-04-2011. But curiously in the counter filed by the District Collector, who passed the detention order, he stated in execution of NBW, when the detenu was arrested, his remand was extended, he placed reliance on the factum of detenu enlarging on bail in all the four crimes registered against him for arriving subjective satisfaction which fact has not been mentioned in the grounds of detention. 10. The law of preventive detention where detenu was already in custody has been succinctly explained by the Apex Court in ABDUL SATHAR IBRAHIM MANIK v. UNION OF INDIA (AIR 1991 SC 2261) in para-12 as under: “(1) A detention order can validly be passed even in the case of a person who is already in custody. In such a case, it must appear from the grounds that the authority was aware that the detenu was already in custody. (2) When such awareness is there then it should further appear from the grounds that there was enough material necessitating the detention of the person in custody. This aspect depends upon various considerations and facts and circumstances of each case. If there is a possibility of his being released and on being so released he is likely to indulge in prejudicial activity then that would be one such compelling necessity to pass the detention order. The order cannot be quashed on the ground that the proper course for the authority was to oppose the bail and that if bail is granted notwithstanding such opposition the same can be questioned before a. higher Court. (3) If the detenu has moved for bail then the application and the order thereon refusing bail even if not placed before the detaining authority it does not amount to suppression of relevant material. The question of non-application of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody. (4) Accordingly the non-supply of the copies of bail application or the order refusing bail to the detenu cannot affect the detenu’s right of being afforded a reasonable opportunity guaranteed under Article 22(5) when it is clear that the authority has not relied or referred to the same. (5) When the detaining authority has merely referred to them in the narration of events and has not relied upon them, failure to supply bail application and order refusing bail will not cause any prejudice to the detenu in making an effective representation. Only when the detaining authority has not only referred to but also relied upon them in arriving at the necessary satisfaction then failure to supply these documents, may, in certain cases depending upon the facts and circumstances amount to violation of Article 22(5) of the Constitution of India. Whether in a given case the Detaining Authority has casually or passingly referred to these documents or also relied upon them depends upon the facts and the grounds, which aspect can be examined by the Court. (6) In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a-vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu.” 11. The above principles lay down the complete process from application of mind by Detaining Authority, material documents, his subjective satisfaction and opportunity for representation to detenue by making available copies thereof. Infraction of any principles laid down above render the detention vitiated. 12. The Supreme Court in DHARMENDRA v Union of India[1] laid down the following guidelines. “An order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that— (i) the Detaining Authority was aware of the fact that the detenu is already in detention; and (ii) there were ‘compelling reasons’ justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the Detaining Authority on the basis of which it may be satisfied that: (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.” 13. In the entire detention order, read with grounds of detention there is no indication that the Detaining Authority considered that the detenu is likely to be released on bail where detenu was in judicial remand pursuant to NBW issued against him. The possibility of release of the detenue who was in judicial remand was not at all indicated in arriving subjective satisfaction by the Detaining Authority except bald statement that the detenu was engaged in preparation of illicit distilled liquor and his activities affect or likely to affect adversely in maintenance of public order because it causes grave or widespread danger to public health, that recourse to normal law would involve considerable time and may not be effective deterrent in preventing him from indulging in further activities prejudicial to maintenance of public order in and around Dhoolpet station limits, Hyderabad District. Whereas in the counter affidavit it is stated by the District Collector that he placed reliance on the fact that detenue enlarged on bail in all the crimes registered against him for arriving subjective satisfaction. It is fairly well settled when the order is silent with regard to subjective satisfaction arrived by the authority, it cannot be supplemented with reasons by way of counter affidavit when correctness of it is challenged in a writ petition. 14. Recently the Supreme Court in REKHA v. STATE OF TAMIL NADU[2] held that unless there is 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 detailing 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. In the absence of detailing such alleged similar cases bald statement of the authority cannot be believed. 15. In view of the same, the detention order as well as the consequential confirmation order passed by the State Government cannot be upheld and the same is accordingly set-aside. 17. In the result, writ petition is allowed and the order of detention in Proc.No.C2/2451/2011, dated 06-04-2011, as confirmed by the State Government in G.O.Rt.No.1806, dated 30-04-2011 is set aside and the detenu, namely, Satish Singh s/o Ramesh Singh is set at liberty forthwith if he is not required in any other case. _________________ A.GOPAL REDDY, J. _____________ RAJA ELANGO,J. 04-07-2011 Murthy [1] 1990 Crl.L.J.1232 [2] (2011) 5 SCC 244