THE HON'BLE MR JUSTICE V ESWARAIAH THE HON’BLE MR JUSTICE G KRISHNA MOHAN REDDY WRIT PETITION NO. 22169 of 2011 DT.17.10.2011 Between: Yelikatla Veera Raghavulu … Petitioner And The Collector & District magistrate, Krishna Dist and ors … Respondents Counsel for the Petitioner: Sri C.Masthan naidu Counsel for respondent: The Court made the following ORDER: THE HON'BLE MR JUSTICE V ESWARAIAH THE HON’BLE MR JUSTICE G KRISHNA MOHAN REDDY WRIT PETITION NO. 22169 of 2011 ADVANCE ORDER : (Per Sri Justice V Eswaraiah) The petitioner herein is the father of the alleged detenu Mr.Yelikatla Srinu R/o Nidamarru village, Kruthivenu mandal, Krishna district, who filed the present writ of habeas corpus to produce the alleged detenu, presently detained in the Central Jail, Rajahmundry pursuant to detention order in Rc.No. 168/2011/A3 dated 29.4.2011 and to order to release him forthwith. 2. The first respondent-Collector and District Magistrate, Krishna District at Machilipatnam, has passed the preventive detention order under Sections 3 (1) & (2) read with Section 2 (a) (b) of the A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offencers, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (Act 1 of 1986) (for short referred to hereinafter as Act 1 of 1986), that Sri Yelikatla Srinu be detained from the date of service of the said order on the ground that he is acting in a manner prejudicial to the maintenance of public order and it is necessary to prevent him from further indulging in such dangerous activities. 3. The detention order dated 29.4.2011 has been passed on the ground that the alleged detenu is repeatedly indulging in committing the offences of possessing and selling illicitly distilled liquor in contravention of Section 7-A read with 8 (e ) of AP Prohibition Act, 1995 (for short referred to as the Act,1995) and three cases were registered against him in Crime Nos. 306/2010-11 dated 2.8.2010, 630/2010-11 dated 8.12.2010 and 17/2011-12 dated 7.4.2011 on the file of Prohibition and Excise Station, Bantumilli, Krishna District. 4. The first case in Crime No. 306/2010-11 was registered against the alleged detenu on 2.8.2010 after he was arrested by the Prohibition and Excise Inspector, Bantumilli for having been in possession of 15 liters of illicitly distilled liquor and while transporting it on a cycle, and it was seized and samples were drawn and sent for chemical examination. Further, on analysis the Chemical Examiner, Regional Excise Laboratory, Kakinada, A.P., vide report in C.E. No. 03/2011 dated 19.1.2011 opined “The sample is illicitly distilled liquor, unfit for human consumption and injurious to health”. The alleged detenu was released on bail vide orders in Crl.M.P.No.969 of 2011 dated 29.4.2011 by the Junior Civil Judge, Bantumilli on a condition to execute a bond for Rs.10,000/- with two sureties each for a like sum and also on condition to report before the S.H.O., P & E, Bantumilli on every alternative day for a period of two weeks. Charge sheet was filed in the case and the case is under trial. 5. The second case in Crime No. 630/2010-11 was registered against the alleged detenu on 8.12.2010. He was arrested for having been in possession of 25 liters of illicitly distilled liquor in 5 polythine covers, and it was seized and samples were drawn and sent for chemical examination and on analysis the Chemical Examiner, Regional Excise Laboratory, Kakinada, A.P., vide report in C.E. No. 51/2011 dated 25.1.2011 opined “The sample is illicitly distilled liquor, unfit for human consumption and injurious to health”. In this case also, the alleged detenu was released on bail vide orders in Crl.M.P. No. 1973/2010 dated 10.12.2010 on executing personal bond for Rs.5000/- with two sureties for like sum each. Further charge sheet was filed and the case is under trial. 6. The third case in Crime No. 17/2011-12 was registered against the alleged detenu on 7.4.2011. He was arrested for having been found in possession of and transporting 35 litres of illicitly distilled liquor on a two wheeler along with another accused and the illicitly distilled liquor was seized and samples were drawn and sent for examination, and on analysis the Chemical Examiner, Regional Excise Laboratory, Kakinada, A.P., vide report in C.E. No. 331/2011 dated 20.4.2011 opined “The sample is illicitly distilled liquor, unfit for human consumption and injurious to health”. Similarly, in this case also, the alleged detenu was released on bail vide orders in Crl.M.P. No. 925/2011 dated 27.4.2011 on executing a bond for Rs.10,000/- with two sureties each for a like sum and also on condition to report before the S.H.O., Prohibition and Excise Police Station, Bantumilli on every Monday and Thursday till filing charge sheet. Charge sheet was filed and the case is under trial. 7. Having regard to the above three cases, the first respondent has passed the detention order dated 29.4.2011 holding that the alleged deteneu is repeatedly committing the offences of possessing illicitly distilled liquor, which on chemical analysis was found to be unfit for human consumption and injurious to health; that he was doing the illegal business in a clandestine manner repeatedly violating the relevant provisions of A.P. Prohibition Act, 1995 and the Rules made thereunder; that if his activities are allowed unchecked there is every danger of leading to liquor tragedies costing many lives of poor people in Kruthivenu mandal and its surrounding villages which thereby affects the public order; that as the alleged detenu is again and again resorting to commit similar offences and the execution of criminal prosecution launched against the alleged detenu under normal process of law would take a long time and it is not possible to immediately prevent him from indulging in similar prejudicial activities to the public health and order. So under such circumstances, having satisfied that the alleged detenu is acting in the manner prejudicial to the public order and it is necessary to prevent him from further indulging in such dangerous activities, he passed the detention order. The alleged detenu has been also informed that his case would be referred to the Advisory Board for review and opinion under Section 10 of the Act 1 of 1986 and he has right to make a representation. Thereafter, the Government under section 3 (3) of the Act No.1 of 1986, has approved the order of detention vide G.O.Rt No. 1972 dated 9.5.2011. Thereafter, the matter has been referred to the Advisory Board constituted under Section 9 of the Act 1 of 1986. The Advisory Board, has reviewed the case on 24.5.2011 and having heard the alleged detenu, his maternal uncle and aunt and the Investigating officers and on perusing the grounds of detention and the connected records has reported that “ There is sufficient cause for the detention of the detenu. There upon, the Government after due consideration of the report of the Advisory Board, has confirmed the detention order vide G.O.Rt. No.2399 dated 1.6.2011 and directed that the alleged detenu be continued in the detention for a period of 12 months from the date of his detention i.e., 30.4.2011. 8. Though several contentions are raised in the writ petition questioning the detention order, the main thrust of the learned counsel for the petitioner is to the effect that in Crime No.17/2011-12 bail was granted to the alleged detenu by orders in Crl.M.P. No. 925/2011 dated 27.4.2011 and the said fact was not brought to the notice of the detaining authority, and if the same was brought to the notice of the detaining authority, the detention order dated 29.4.2011 would not have been passed and such non mention of the relevant fact is detrimental. In support of his contentions, he has placed reliance on the judgments of this Court in M.Laxmi Bai Vs. Commissioner of Police, Hyderabad and another[1], Boya Thayamma Vs. Government of A.P. and others [2] , Kallay Mutyallamma Vs. District Collector, East Godavari and others [3] and the judgment of the Apex Court in Rekha Vs. State of Tamil Nadu and others[4]. 9. On the other hand, the learned Assistant Government Pleader attached to the office of the learned Advocate General has supported the preventive detention order dated 29.4.2010 reiterating the grounds mentioned in the detention order for doing so. So, according to him also in spite of repeated registration of cases against the alleged detenu for the possession and sale of illicitly distilled liquor, which on analysis was found to be unfit for human consumption and injurious to the public health; and releasing him on bail he indulged in such dangerous activities and could not prevent himself from doing so and as such, he is a bootlegger in terms of the Act 1 of 1986; and normal process of prosecuting him under the A.P. Prohibition Act, 1995 will take a long time to have any desired impact against his clandestine bootlegging activities, which impairs public health and public order and as such, his preventive detention is warranted. 10. Heard the learned counsel for the petitioner and the learned Assistant Government Pleader attached to the office of the learned Advocate General and perused the entire material available on record. 11. In the above narrated background, the question that arises for consideration before this Court is; “Whether non-mentioning of bail granted to the alleged detenu in Crime No.17/2011-12 in Crl.M.P. No. 925/2011 dated 27.4.2011 vitiates the detention order passed by the first respondent dated 29.4.2011 ? 12. Admittedly, in the grounds of detention of the alleged detenu dated 29.45.2010 there is mention about bail orders granted in favour of the alleged detenu in the first two cases i.e., Crime Nos.306/2010-2011 dated 2.8.2010 wherein he was released on bail on 4.8.2010 and Crime No. 630/2010-2011 dated 8.12.2010 wherein he was released on bail on 10.12.2010. However, insofar as the third case in Crime No. 17/2011-12 dated 7.4.2011 is concerned, it is stated that the accused is under judicial custody and there is no mention about granting of bail in that case by the learned Junior Civil Judge, Bantumilli vide orders in Crl.M.P No. 925/2011 dated 27.4.2011. In similar circumstances, a Division Bench of this Court in Kallay Mutyallamma case (cited supra), held as under; “ 36. From a perusal of the impugned order, passed by the respondent No.1, it appears that in item Nos.1, 2, 3 and 5, bail was obtained by the detenu. Item No.4 is the last crime registered against the detenu, in which case also he obtained bail, which fact is not in dispute. When the detaining authority had made a specific mention of the orders of bail in all the earlier crimes, the non- mentioning of the order of bail obtained by the detenu would be, in our considered view, a vital fact, which is capable of impairing the subjective satisfaction of the detaining authority. 37. In other words, when the detaining authority was made available with the entire material, including the bail applications and orders of bail, passed by the competent Court, it is for sure that the detaining authority had knowledge of all the events. If that be the case, there is no necessity for the detaining authority to make a reference of the bail orders passed in item Nos.1, 2, 3 and 5, but non-mentioning of bail order in item No.4, which actually is the last incident, prompting the detaining authority, to pass the impugned order, would amount to arbitrariness and non-application of mind. 38. The orders of bail, which are on record, in this case, cannot partially be treated as ‘vital’ and partially as ‘non-vital’. If there are uniform orders of bail obtained by the detenu, in all the cases, such material shall have to be made available to the detaining authority and, in turn, the detaining authority is under an obligation to uniformly make reference of all the facts, including the orders of bail. Referring to some and failing to refer some would, in our considered view, amount to non- application of mind on the part of the detaining authority. 39. As already noticed, it is always not necessary for the detaining authority to supply the entire material and make a reference of all the bail orders either, if he really is not relying on such material for passing the impugned order. When a partial reference has been made to some material and some has been omitted, the mind of the detaining authority shall be capable of being perceived that the authority has not been relying on other material or that the authority is under clear impression that such material is ineffective or the authority is of the opinion that the case can be made out in spite of the absence of or reference of such material before him in the order of detention. Suffice it for the detaining authority to put on record the reason, in this regard. 40. For the aforementioned reasons and also having regard to the propositions laid down by the apex Court, referred to supra, we are of the considered view that the factum of obtaining bail is a vital fact, particularly when other bail orders were specifically mentioned. We do not find any plausible reason for the detaining authority to omit the factum of obtaining bail on the last occasion, in item No.4, and the detenu was moving freely, which, in our view, would certainly impair the subjective satisfaction of the detaining authority and consequently vitiate the entire proceedings.” 13. Further, the Apex Court in Rekha case (cited supra) held as under; “A perusal of the above statement in para 4 of the grounds of detention shows that no details have been given about the alleged similar cases in which bail was allegedly granted by the concerned court. Neither the date of the alleged bail orders has been mentioned therein, nor the bail application number, nor whether the bail orders were passed in respect of the co-accused on the same case, nor whether the bail orders were passed in respect of other co- accused in cases on the same footing as the case of the accused. All that has been stated in the grounds of detention is that "in similar cases bails were granted by the courts". In our opinion, in the absence of details this statement is mere ipse dixit, and cannot be relied upon. In our opinion, this itself is sufficient to vitiate the detention order.” 14. Therefore, it is clear that the factom of the alleged detenu obtaining bail in Crime No.17/2010-2011 was not brought to the notice of the detaining authority before passing the detention order dated 29.4.2011 and if that fact was brought to the notice of the detaining authority, it is not known, whether the detaining authority would have satisfied and come to a reasonable conclusion to order the detention of the alleged detenu. There is no dispute that the detention order must be to the subjective satisfaction of the detaining authority and the grant of bail in the third crime in Crime No. 17/2010-2011 was relevant for the detaining authority for satisfying itself while passing the order and non mention of the same is sufficient to vitiate the detention order. 15. For the foregoing reasons, the order of detention in Rc.No. 168/2011/A3 dated 29.4.2011 passed by the first respondent is hereby quashed and the writ petition is accordingly allowed. The alleged detenu shall be released forthwith, if not required in any other offence. _____________ V ESWARAIAH,J ________________________ G KRISHNA MONAH REDDY,J DATE: 17.10.2011 TVK THE HON'BLE MR JUSTICE V ESWARAIAH THE HON’BLE MR JUSTICE G KRISHNA MOHAN REDDY WRIT PETITION NO. 22169 of 2011 Date. 17.10.2011 [1] 2003 (1) ALT (Crl) (DB) (AP) [2] 2006 (1) ALD (Crl) 473 (AP) [3] 2007 (5) ALT 475 (DB) [4] 2011 (2) SCC (CRL) 596