IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SECOND DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE B.CHANDRA KUMAR WRIT PETITION NO : 28902 of 2008 Between: Gorantla Allahbakash S/o. G. Fakrusaheb R/o. Indirapuram Street, Angallu Village, Kurabalakota Mandal, Chittoor District. ..... PETITIONER AND 1 The District Collector & District Magistrate Chittoor. 2 The Government of Andhra Pradesh Represented by it's Chief Secretary Secretariat, Hyderabad. 3 The Superintendent Central Prison Cherlapally. .....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 of Habeas Corpus under Article 226 of the Constitution of India directing the respondents to produce the detenue Sri G. Bhavajan now detained in Central Prison Cherlapally before this Hon'ble Court and he may be ordered to be released forthwith after declaring his detention as illegal and void. Counsel for the Petitioner:MR.JALAGAMRAVI KUMAR Counsel for the Respondent No.: THE ADVOCATE GENERAL The Court made the following: THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE B.CHANDRA KUMAR W.P.No.28902/2008 ORDER: (per Hon’ble Sri Justice A. Gopal Reddy) In this writ petition under Article 226 of the Constitution of India the petitioner seeks release of his son, namely, Gorantla Bhavajan (hereinafter referred to as “the detenu), who has been detained on 07-11- 2008 by virtue of an order of detention passed by the Collector and District Magistrate, Chittoor under Section 3(1)(2) read with Section 2 (a) (b) of the A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short ‘the Act”) on the ground that five incidents referred to in the grounds of detention served on the detenu are stale incidents and the detention order was passed on a mechanical manner and on vague grounds. The detaining authority filed a detailed counter reiterating the grounds of detention. The order of detention was based on the following grounds: 1. The detenu was involved in Cr.No.519/2007-2008 dt.6-2-2008 of Prohibition and Excise Station, Madanapalli involving 40 litres of illicitly distilled arrack in four plastic covers each containing 10 litres. 2. He and another were involved in Cr.No.543/2007-2008 dt. 20-2-2008 of Prohibition and Excise Station, Madanapalli involving 20 litres of illicitly distilled arrack in two plastic cans each containing 10 litres. 3. He was involved in Cr.No.14/2008-2009 dt.11-4-2008 of Prohibition and Excise Station, Madanapalli involving 15 litres of illicitly distilled arrack in plastic pot 4. He was involved in Cr.No.62/2008-2009 dt.7-5-2008 of Prohibition and Excise Station, Madanapalli involving 15 litres of illicitly distilled arrack in can kept in the plastic bag. 5. He was involved in Cr.No.176/2008-2009 dt.17-7-2008 of Prohibition and Excise Station, Madanapalli involving 20 litres of illicitly distilled arrack in plastic can. In all the above cases, the detenu was found to be in possession and transporting illicitly distilled arrack, which are injurious to health and unfit for human consumption, in contravention of the provisions of the A.P. Excise Act, 1968. In all the cases, contraband was seized and samples were drawn and sent for chemical examination to the Government Chemical Examiner, Prohibition and Excise, Chittoor. As per the chemical analysis reports, it was found that all the samples drawn from the seized contraband was found to be “illicitly distilled arrack, unfit for human consumption and injurious to health”. In all the above cases, the detenu was arrested and produced on 07-02-2008; 20-02-2008; 11-04-2008; 09-05-2008 and 18-07-2008 respectively before the jurisdictional Magistrate who remanded him and subsequently enlarged on bail on 08- 02-2008; 22-02-2008; 17-04-2008; 09-05-2008 and 22-07-2008 respectively. As the detenu was continuously involving in the bootlegging activities i.e. possession, transportation and sale of illicitly distilled arrack for money gain in Madanapalli Excise Station limits, which is unfit for human consumption, and as it will adversely affect the pubic health the Collector and District Magistrate, Chittoor, after satisfying himself that the activities of the detenu are prejudicial to the maintenance of public order and his activities are causing widespread danger to public health and detenu shall be prevented from further indulging in such activities in future, in exercise of the power vested in him under sub-sections (1) and (2) of Section 3 of the Act, ordered for his detention until further orders in the Central Prison, Cherlapalli, Ranga Reddy District immediately, by the impugned order in ROC.C2/14918/2008 dated 07-11-2008 from the date of service. The Government in their order in G.O.Rt.No.6525, General Administration (Law and Order-II) Department dated 14-11-2008, in exercise of the powers under sub-section (3) of Section 3 of the Act, accorded approval to the order of detention passed by the Collector. Thereafter, the Government referred the matter to the Advisory Board constituted under Section 9 of the Act, which, after hearing the detenu, the investigating officers and after perusing the connected records made available to it, opined that there is sufficient cause for the detention of the detenu Gorantla Bhavajan s/o Gorantla Allabakash. The Government after taking into consideration the report of the Advisory Board and the material available on record, in exercise of the powers conferred under sub- section (1) of Section 12 read with Section 13 of the Act, through G.O.Rt.No.6895, General Administration (Law and Order II) Department dated 6-12-2008 confirmed the order of detention and directed that the detention of the detenu be continued for a maximum period of 12 months from the date of his detention i.e. 10-11-2008. The only contention raised by the learned counsel for the petitioner, Sri J. Ravi Kumar, is that in all the crimes registered against the detenu, he was released on bail and orders granting bail were not supplied to the detenu along with grounds of detention, thereby the detenue was prevented from making an effective representation, which is violative of Article 22(5) of the Constitution of India. In support of his contention, he placed reliance on the following judgments: 1. LALITHA V. STATE OF A.P. AND ANOTHER[1] 2. K. RAMAMOHAN REDDY V. CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT OF A.P.[2] 3. RAMESH YADAV V. DISTRICT MAGISTRATE, ETAH[3] 4. P.U. ABDUL RAHIMAN V. UNION OF INDIA[4] 5. 5.M. AHAMEDKUTTY V. UNION OF INDIA[5] 6. ABDUL SATHAR IBRAHIM MANIK v. UNION OF INDIA[6] Per contra, the learned Special Government Pleader representing the Advocate General contended that the detenu is an habitual bootlegger of transporting illicitly distilled arrack, which was found to be injurious to the health and the Collector after taking into consideration the chemical analyst reports in all the cases that the seized contraband is unfit for human consumption passed the impugned detention order, in exercise of the power vested in him under section 3 of the Act, since activities of the detenu in transporting of the illicitly liquor will adversely affect the health of the downtrodden and underprivileged living in the area and as such no interference is warranted by this Court. She further contended that the material, which was relied upon by the detaining authority, has been supplied to the detenu. She further contented that in all the cases the detenu was released on bail as it is a bailable offence and since no condition was imposed while enlarging him on bail, the same were not placed before the detaining authority and since they were not relied upon by the detaining authority, they were not supplied to the detenu, and the bail orders available with the detenu have been filed as additional material papers, it is not open for him to contend that due to non-supply of bail orders, he was prevented from making an effective representation. In the light of the above submissions and pleadings as referred to above, the point that arises for consideration is: “Whether the detention order passed by the Detaining Authority as approved by the Government in G.O.Rt.No.6525 dated 14-11-2008 and confirmed in G.O.Rt.No.6895 dated 6-12-2008 can be sustained or not?” In the case of Lalitha (1 supra) this Court by placing reliance in RASHIDMIYA v. POLICE COMMISSIONER, AHMEDABAD (AIR 1989 SC 1703) concluded that mere fact that three crimes had been registered by itself may not be sufficient but further satisfaction or further material to satisfy the condition “…from acting in any manner prejudicial to the maintenance of public order” to be satisfied. By distinguishing the Full Bench judgment in DODDI SHARADA v. COLELCTOR AND DISTRICT MAGISTRATE (2005 (2) ALT 244 (FB)) it was held that the detention order has been questioned on the ground that the detenu was arrested and had been released on bail also in which charge sheet has also been filed. The release on bail and charge sheets having been filed, which are crucial aspects, have not been considered and the Sponsoring Authority had not placed the copies of the same along with the grounds of detention by virtue of which prejudice had been caused to the detenu in relation to making effective representation and set aside the detention order that the grounds which have been specified for detention are insufficient to sustain the order. In K.RAMMOHAN REDDY’S case (2 supra) this Court held that bail application, the order of granting the bail and also orders issuing NBW should be taken into consideration by the detaining authority. Since the order granting bail to the detenu might indicate that there was, prima facie, no case against the detenu, in which he was involved. Non- consideration of the favourable material to the detenu by the detaining authority in coming to the subjective satisfaction vitiates the detention order. Hence, bail application and order granting bail should be placed before the detaining authority and the copies should also be supplied to the detenu. In RAMESH YADAV’S case (3 supra) the detention order was passed under National Security Act, 1980, as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. It was held if the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail, an order of detention under the Act should not ordinarily be passed. In P.U.ABDUL RAHIMAN’S case (4 supra) the detenu was detained for his involving the offence under Section 3(1) of Prevention of Illicit Traffic in Narcotic Drugs and Pychotropic Substances Act, 1988. The Supreme Court after following its earlier judgments in ABDUL SARTTAR ABDUL KADAR SHAIKH v UNION OF INDIA (1990) 1 SCC 480) and in M.AHAMADKUTTY v UNION OF INDIA (5 supra) set aside the detention order on the ground that application for bail which was rejected by the JFCM earlier and subsequent grant of bail by the Sessions Court have not been supplied for making effective representation. In M.AHAMEDKUTTY’s (5 supra) the Supreme Court was dealing with detention order passed under COFEPOSA Act, 1974, wherein it was held that bail application and bail order are vital materials for consideration. If those were not considered the satisfaction of the detaining authority itself would have been impaired, and if those had been considered, they would be documents relied on by the detaining authority though not specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete. Therefore, the same would amount to denial of the detenu’s right to make an effective representation and it resulted in violation of Article 22(5) of the Constitution of India rendering the continued detention of the detenu illegal. In ABDUL SATTAR ABDUL KADAR SHAIKH V. UNION OF INDIA[7] the detenu after unsuccessfully making two earlier attempts again contended that certain documents which he had asked for were not given to him and, therefore, there was failure of justice. Rejecting the contention the Supreme Court stated that the documents he had asked for had no relevance to his detention and no injustice had been done to him by refusing to give him those documents on which no reliance whatsoever was placed by the detaining authority. In ABDUL SATHAR IBRAHIM MANIK’s case (6 supra) the Supreme Court after considering the detention order passed under COFEPOSA and after referring to the principles laid in KAMARUNNISSA v. UNION OF INDIA (AIR 1991 SC 1640) in para-13 held that failure to supply bail application and the order refusing bail does not in any manner prejudice the detenu from making a representation particularly when he was fully aware of the contents of application made by himself and also the refusal order. However, when they are not referred to or relied upon the non-supply does not affect the detention. Recently the Supreme Court in SUNITHA JAIN v. UNION OF INDIA[8] referring to all the above judgments held as under: “It would also be a relevant fact that whether he is free on that date and if he is, whether he is subjected to certain conditions in pursuance of and in furtherance of the order of bail. If pursuant to or in furtherance of such conditions he may not be able to flee from justice, that may be held to be relevant consideration for the purpose of passing an order of detention but the converse is not true. Some such other grounds raised in the application for bail and forming the basis of passing an order of bail may also be held to be relevant. It would, however, not be correct to contend that irrespective of the nature of the application for bail or irrespective of the nature of the restrictions, if any, placed by the court of competent jurisdiction in releasing the detenu on bail, the same must invariably and mandatorily be placed before the detaining authority and the copies thereof supplied to the detenu.” In HARPREET KAUR V. STATE OF MAHARASHTRA[9] the Supreme Court while dealing with identical provision of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981 similar to the Act 1 of 1986 held that “Public Order” or “Law and Order” are two different and distinct concepts and there is abundance of authority of this Court drawing a clear distinction between the two, with a view to determining the validity or otherwise of the order of detention, it would be necessary to notice the difference between the two concepts. After referring to the various judgments rendered by it, the Supreme Court further held as under: “The explanation to S. 2(a) (supra) brings into effect a legal fiction as to the adverse effect on 'public order'. It provides that if any of the activities of a person referred to in clauses (i)-(iii) of Section 2(a) directly or indirectly causes or is calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or any Section thereof or a grave or a wide-spread danger to life or public health, then public order shall be deemed to have been adversely affected. Thus, it is the fall out of the activity of the "bootlegger" which determines whether public order' has been affected within the meaning of this deeming provision or not. This legislative intent has to be kept in view while dealing with detentions under the Act. This Court in W.P.No.28793 of 2008 dated 19-03-2009 after referring the above judgment and various other judgments of the Supreme Court was of the view that the conclusion reached by the Division Bench in Lalitha’s case (1 supra) is not a biding precedent. It is not in dispute the offences for which the detenu was charged are bailable offences; while releasing him no conditions have been imposed to contend that the detenu may not be able to move freely that the same has not been considered by the detaining authority while passing the relevant order. Only in cases where the condition have been imposed while enlarging the detenu on bail the said material has to be placed before the detaining authority by the sponsoring authority. If the same has not been placed, the detention order can be held as vitiated by non-application of mind but not otherwise. Therefore, non-placing the bail orders by the sponsoring authority before the detaining authority and non-supply of the said documents to the detenu did not vitiate the detention order. The grounds of detention, referred to above, clearly disclose that detenu was habituated in commission of crimes and is accustomed to commit crimes of transporting and distributing of illicit distilled liquor, which contains injurious substances and unfit for human consumption. Once the detenu is indulging in bootlegging activities of transport and distribution of illegally manufactured spurious liquor violating the provisions of the Excise Act, which is likely to cause widespread danger to public health and create a feeling of insecurity among the general public and if the same is allowed, there is every possibility of danger to the life or public health, who consumes illicit liquor, which is a prejudicial activity causing danger to public health then public order shall be deemed to have been adversely affected as per legal fiction under explanation to Section 2(a) of the Act. The detaining authority satisfied that the activities, which were carried on by the detenu, would cause prejudice and adversely affect the public health, particularly the downtrodden and the under-privileged in the area and passed the detention order, which was approved by the Government. When the matter is placed before the Advisory Board, the Advisory Board after providing an opportunity to the detenu opined that there is sufficient cause for the detention of the alleged detenu and the same had been accepted by the Government only to prevent the detenu from perpetuating, transporting and distribution of illicitly distilled liquor. The subjective satisfaction arrived at by the detaining authority as approved by the Government is based on sufficient material, which was supplied to the detenu complying the Constitutional mandate under Article 22(5) of the Constitution. In view of the same, the detention order passed by the Collector & District Magistrate, Chittoor as approved by the Government in G.O.Rt.No.6525 dated 14-11-2008 and confirmed in G.O.Rt.No.6895 dated 06-12-2008 does not suffer from any illegality or it violates the constitutional/statutory right of the detenu under Article 22(5) of the Constitution rendering the detention order illegal. The writ petition fails and it is accordingly dismissed. ____________________ A.GOPAL REDDY, J _______________________ B.CHANDRA KUMAR, J –03-2009 Kmr/Murthy ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The District Collector & District Magistrate Chittoor. 2 The Government of Andhra Pradesh Represented by it's Chief Secretary Secretariat, Hyderabad. 3 The Superintendent Central Prison Cherlapally. 4 2 CD copies [1] 2007(2) ALD (CRL) 181 (AP) [2] 1997(2) ALD (CRL) 762 (AP) [3] AIR 1986 SC 315 [4] AIR 1991 SC 336 [5] 1990 SCC (CRL) 258 [6] AIR 1991 SC 2261 [7] (1990) 1 SCC 480 = 1990 (1) Crimes 385 [8] 2006(4) SCJ 278 [9] AIR 1992 SC979 = (1992) 2 SCC 177