THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU W.P.No.4877 of 2010 Date of Order: 19-07-2010 Between: Smt. Epuri Venkateswari ..Petitioner and 1.Govt. of A.P., rep. by its Principal Secretary Home Department, Secretariat, Hyderabad and others ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU W.P.No.4877 of 2010 Oral Order: (Per Honourable Sri Justice A.Gopal Reddy) 1. Petitioner—wife challenges the detention order of her husband, namely, Yepuri Koteswara Rao @ Laddu s/o Babu Rao passed by the Commissioner of Police, Vijayawada in C.No.76/CP/Camp/09, dated 17-11- 2009 under Section 3(2) of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (hereinafter referred to Act 1/1986). 2. The grounds of detention supplied to the detenu along with the detention order discloses three crimes registered against him for various offences under IPC which ended in conviction, details of which are as under: 1. Cr.No.48/2002 under Sections 147, 148, 448, 307 r/w 149 IPC by Krishnalanka PS. 2. Cr.No.385/2004 under Sections 302, 109, 120(b) r/w 34 IPC by Gannavaram PS. 3. Cr.No.32/2006 under Section 307, 354, 353, 506, 427 r/w 34 IPC by Krishnalanka PS. 3. In Crime No.48/2002, on conviction and sentencing him to undergo imprisonment for four years, the detenu filed an appeal—Crl.A.No.880 of 2005 and the same is pending. In Cr.No.385/2004 the detenu was convicted for life imprisonment. On appeal the same was set aside by the High Court on 21-02-2008. In Cr.No.32 of 2006 the detenu was convicted and sentenced to undergo rigorous imprisonment for one year and against which Crl.A.No.18 of 2009 is pending. 4. Further, the following three cases are pending for trial. 1. Cr.No.50 of 2008 was registered against the detenu for the offence under Section 307 r/w 34 IPC by Governorpet PS on 27-02-2008, he was arrested on 28-02-2008 and sent to judicial custody and later released on bail, in which charge sheet was filed on 30-06-2008 and the same is numbered as S.C.No.40 of 2009. 2. In Cr.No.177/2008 registered for the offence under Section 506 IPC and Section 7(1) of Criminal Law Amendment Act by Law & Order P.S. Suryaraopet, the detenu was arrested and sent to judicial custody and later he was released on bail in which charge sheet was filed in C.C.No.791 of 2008 and the same is pending. 3. In Cr.No.487 of 2008 registered for the offence under Section 307 r/w 34 IPC detenu was surrendered before the II Additional Chief Metropolitan Magistrate Court, Vijayawada and remanded to judicial custody and later enlarged on bail on imposing certain conditions and on violating the conditions, the bail was cancelled by the Metropolitan Sessions Judge, Vijayawada. Late he obtained bail from the High Court in which a charge sheet was filed in S.C.No.192 of 2009 and the same was ended in acquittal on 14-05-2010. Lastly, he was arrested in Cr.No.603 of 2009 for the offence under Sections 143, 448, 427, 435 r/w 34 IPC by the Law & Order I Town PS, Vijayawada and he was arrested on 21-09-2009 where he was initially remanded to judicial custody and later he was enlarged on bail is under investigation. 5. As the alleged detenu was continuously involving in various offences and habituated to commit the offences one after other, and action taken under ordinary criminal law cannot prevent him from indulging in violent activities, the Detaining Authority came to the conclusion that detenu should be detained preventing him from acting in any manner prejudicial to the maintenance of public order and accordingly passed the detention order. The Government through G.O.Rt.No.5688 General Administration (L&OII) Department, dated 27-11-2009, in exercise of the powers under sub- section (3) of Section 3 of the Act 1/1986, accorded approval to the order of detention passed by the Commissioner of Police, Vijayawada and placed the matter before the Advisory Board constituted under Section 9 of the Act 1/1986. The Advisory Board reviewed the case in its meeting held on 29-12-2009 and after hearing the detenu, mother of the detenu, wife of the detenu, petitioner herein, and 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 Yepuri Koteswara Rao @ Laddu. Basing on the report submitted by the Advisory Board, the Government, in exercise of the powers conferred under sub-section (1) of Section 12 r/w 13 of the Act 1/1986, through G.O.Rt.No.58 General Administration (L&O.II) Department, dated 05-01-2010, confirmed the order of detention and directed that the detention of the detenu be continued for a period of 12 months from the date of his detention i.e. 20-11-2009. Questioning the same the present writ petition is filed. 6. A counter affidavit has been filed by the 2nd respondent stating that he has gone through various cases mentioned in the detention order and satisfied that the detenu shall be prevented from further indulging himself in similar offences in future and thereby the order of detention was passed. Pursuant to the order of detention, the detenu was taken into custody on 19- 11-2009 and lodged at Central Prison, Rajahmundry on 20-11-2009. At the time of taking him into custody, the order of detention, grounds of detention and material relied upon were served on the detenu, which was acknowledged by the detenu, who was duly informed that he has a right to make representation to the Detaining Authority, The Chief Secretary to the Government and the Advisory Board. Thus, complied with the constitutional and statutory mandate. In Cr.Nos.48 of 2002, 385/2004 and 32/2006 the detenu was convicted by the concerned courts; Cr.Nos.50/2008, 177/2008 and 487/2009 are pending trial in S.C.No.40 of 2009, C.C.No.79 of 2008 and S.C.No.192 of 2009 respectively. In Cr.No.603 of 2009 case is under investigation as on the date of passing the detention order. Even if the sentence is modified or suspended or the appellate authority acquits the detenu, the same do not bar the Detaining Authority from passing the order of detention. As the detenu is a habitual offender, and the as the ordinary penal laws failed to curb his illegality activities, it is necessitated to pass the order of detention. The bail orders, which were relied on by the Detaining Authority, were served for making effective representation and denied passing detention order mechanically without application of mind. 7. Learned counsel for the petitioner contends that in the grounds of detention it was mentioned in Cr.No.385/2004 the detenu was convicted for life imprisonment and in the appeal the conviction was set aside by the High Court. So, again referring the said crime and taking the same into consideration for passing the detention order is total non-application of mind. If one of the grounds or reasons is not established the whole detention order is vitiated and it has to be set aside. Since the detenu is lodged in jail, his threatening the witness in other crime does not arise. The public prosecutor has moved for cancellation of bail against A2 and A3, but not against A1. In Cr.No.487/2008 though the Sessions Judge in S.C.No.192 of 2009 acquitted the detenu, the same has not been mentioned. (Acquitted on 14-05-2010). Therefore, the detention order must fail and the same is liable to be set aside. 8. On the other hand, Smt. Mohana Reddy, learned Special Government Pleader representing the Advocate General, contended that mere mentioning of earlier crimes and his acquittal of the charge does not amount to non-application of mind. The detention order is passed only after the Detaining Authority satisfied that there is a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and should be prevented him from doing the same. The order of detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is not a bar to an order of detention. To buttress her submission, reliance is placed on the Constitutional Bench judgment of he Supreme Court in H.SAHA v. STATE OF W.B.[1]. The subjective satisfaction of the Detaining Authority cannot be substituted with the opinion of the court when the detenu is history sheeter against whom several cases are pending, he can be detained to prevent the offence, which are prejudicial to the interest of the society. For the said proposition she relied on the judgment of the Supreme Court in COMMR. OF POLICE v. C.ANITA[2]. 9. In view 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.5688, dated 27-11-2009 and confirmed in G.O.Rt.No.58, dated 05-01- 2010 can be sustained or nor?” 10. Before dealing with the rival submissions, it would be appropriate to notice the relevant statutory provisions, which deal with the purpose and intention of the Act 1 of 1986. 11. Sub Section (1) of Section 3 of the Act 1 of 1986 empowers the Government to make orders for detaining certain persons with a view to prevent them from acting in any manner prejudicial to the maintenance of public order. Preventive detention is an anticipatory measure and does not relate to an offence, while criminal proceedings are to punish a person for an offence committed by him under the Indian Penal Code. Sub-section (2) of Section 3 allows the detention of a person only if the appropriate Detaining Authority with whom the powers are delegated under sub-section (2) of Section 3 is satisfied with a view to prevent such person from carrying on any of the offensive activities enumerated therein, it is necessary to detain such person. The satisfaction of the Detaining Authority is not a subjective one based on his beliefs or prejudices. There must be a real likelihood of the person being able to indulge in such activities, the inference of such likelihood being drawn from objective data. Sub-Section (2) of Section 3 deals with delegation of powers by the state Government and provides that if the State Government is satisfied having regard to the circumstances prevailing in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, it is necessary to empower District Magistrate or the Commissioner of Police, as the case may be, to exercise the powers of the State Government to order detention of a person as provided by sub-section (1). 12. Sub-section (3) of Section 3 reads as under: "when any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the State Government, together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless in the meantime, it has been approved by the State Government." 13. Section 2 (b) defines "bootlegger", which reads as follows: "2.(b) 'bootlegger' means a person, who distils, manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxicating drug or other intoxicant in contravention of any of the provisions of the Andhra Pradesh Excise Act, 1968, and the rules, notifications and orders made thereunder or in contravention of any other law for the time being in force, or who knowingly expends or applies any money or supplies any animal, vehicle, vessel or other conveyance or any receptacle or any other material whatsoever in furtherance or support of the doing of any of the abovementioned things by himself or through any other person, or who abets in any other manner the doing of any such thing.” 14. Section 2 (a) of the Act defines the meaning of the expression "acting in any manner prejudicial to the maintenance of public order" which reads as follows: (a) "acting in any manner prejudicial to the maintenance of public order" means when a bootlegger, dacoit, a goonda, an immoral traffic offender or a land grabber is engaged or is making preparations for engaging, in any of his activities as such, which affect adversely, or are likely to affect adversely, the maintenance of public order". Explanation to Section 2 (a) of the Act reads as under: "For the purpose of this clause public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely inter alia, if any of the activities of any of the persons referred to in this clause directly, or indirectly, is causing or 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 widespread danger to life or public health. " 15. The Constitutional Bench of the Supreme Court in H.Saha’s case (1 supra) while considering the constitutional validity of Maintenance of Internal Security Act, 1971, which confers the power on the Central Government or the State Government to make orders directing detention of persons, held as under: “The essential concept of preventive detention is that detention of a person is not to punish him for something he has done but to prevent him from doing it. The basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case a person is punished to prove (sic) (on proof of) his quite and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in Section 3 of the Act to prevent.” (See para19) 16. The Constitutional Bench while considering the personal liberty held as under: “The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution.” (See para32) 17. In the case of C.Anita (2 supra) this court quashed the detention order passed by the Commissioner of Police, Hyderabad City holding that though there was proximity in the incidents highlighted in the order of detention, there was nothing to show that those acts were affecting maintenance of public order. Even if the detenu was held to be a goonda and land grabber, it was not sufficient to warrant preventive detention. On appeal by the Detaining Authority, the Supreme Court after referring to the distinction between “Public Order” and “Law and Order” as has been pointed by it in various earlier decisions and also referring to the grounds of detention held that the court cannot substitute its own opinions for that of the Detaining Authority when the grounds of detention are precise, pertinent, proximate and relevant. Once there is no vagueness or staleness, the incidents have been highlighted in the grounds of detention coupled with the definite indication as to the impact thereof, which have been precisely stated in the grounds of detention. The two incidents referred to show as to in what manner the detenu was demanding money from whatsoever was purchasing land and giving threats to kill if the demands were not met which clearly substantiate the subjective satisfaction arrived at by the Detaining Authority as to how the acts of the detenu were prejudicial to the maintenance of public order which aspects have not been considered by the High Court and accordingly set aside the order of the High Court restoring the order of detention. 18. I n ASHA DEVI v. K.SHIVRAJ[3], which arose out of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the Supreme Court held that the subjective satisfaction requisite on the part of the Detaining Authority, the formation of which is a condition precedent to the passing of detention order, will get vitiated if material or vital facts, which would influence the mind of the Detaining Authority, one way or the other are ignored or not considered by the Detaining Authority before issuing the detention order. Since three facts were not communicated to or placed before the Detaining Authority before it passed the impugned order against the detenu. In those circumstances, the detention order was set aside as vitiated holding that there was non- application of mind to the most material and vital facts. The same is not case on hand. 19. Admittedly, the reporting authority i.e. Inspector of Police, Krishnalanka in its report stated that various cases are pending against the detenu and the Detaining Authority noticed that in Cr.No.385 of 2004 though the lower court convicted the detenu for life imprisonment, the same was set aside. Mere mentioning about the facts of earlier case does not amount to irrelevant consideration, since all the facts of the cases in which the detenu was charged for various offences were brought to the notice of the Detaining Authority and the Authority considered the same and arrived at a conclusion that recourse to ordinary criminal provisions could not have desired effect of preventing the detenu from indulging in violent activities. In Cr.No.487/2008 the detenu, who was charged for the offence under Section 307 r/w 34 IPC in S.C.No.192 of 2009, was acquitted on 14-05-2010, which is subsequent to the passing of detention order; therefore, it cannot be said that in spite of acquittal of detenu in Cr.No.487/2008, still the Detaining Authority took the same for consideration for detaining the accused. It was only referred to show about the involvement of the detenu in various offences and how the illegal activities of the detenu could not be prevented by recourse to the ordinary provision of criminal law. 20. The Supreme Court in HARPREET KAUR V. STATE OF MAHARASHTRA[4], where 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.” 21. From the aforementioned grounds of detention, it is evident that detenu was habituated for commission of crimes and accustomed to commit such crimes. The detenu was attempted to kill the father and brother of complainant in Cr.No.48/2002 and in Cr.No.32/2006 he along with some antisocial elements attempted to commit the murder, outraging the modesty of a woman, assault on public servant, causing injuries, mischief and criminal intimidation, for which he was convicted by the Mahila Sessions Judge, Vijayawada in S.C.No.1/2008 and the appeal filed against which is pending. While on bail he again indulged similar activities in Cr.Nos.50/2008, 177/2008 and 487/2008. Later he was acquitted of the charge in Cr.No.487 of 2008 and investigation in Cr.No.603 of 2008 is still pending. 22. Therefore, subjective satisfaction reached by the Commissioner of Police, Vijayawada while passing the detention order as approved by the Advisory Board and confirmed by the Government do not suffer from any illegality warranting interference. 23. The writ petition fails and it is accordingly dismissed. No costs. ________________ A.GOPAL REDDY, J. ___________ K.C.BHANU,J. 19-07-2010 Murthy [1] AIR 1974 SC 2154 [2] (2004) 7 SCC 467 [3] AIR 1979 SC 447 [4] AIR 1992 SC 979 = (1992) 2 SCC 177