Bhukya Mohan, v. The State Of Telangana, Rep. By Its Principal Secretary

HON'BLE SRI JUSTICE G. CHANDRAIAH AND HON'BLE SRI JUSTICE A. SHANKAR NARAYANA WRIT PETITION Nos.32707, 35927, 36218, 39956, 40035, 40662 & 40850 OF 2015 AND COMMON ORDER: (Per Hon'ble Sri Justice A. Shankar Narayana) Since the grounds that constitute basis for passing orders of detention by the District Magistrates of Ranga Reddy, Hyderabad, Medak, Warangal and Nizamabad Districts, relate to organizing illegal sales of Illicitly Distilled Liquor (I.D. Liquor) in contravention of Andhra Pradesh Prohibition Act, 1995 (for short 'Act, 1995'), as amended in 1997 and Andhra Pradesh Excise Act, 1968 (for short 'Act, 1968), in all these writ petitions, we intend to take up the same for disposal by this common order.

W.P. No.32707 of 2015:

2. The detenu is Gudipalli Ravinder, son of Simhaiah, resident of Marikal village, Kulkacherla Mandal, Ranga Reddy District.

i) His wife - Gudipally Anuradha, sought a Writ of Habeas Corpus to declare the proceedings

bearing No.C3/6268/2015, dated 16-09-2015, issued by the Collector and District Magistrate, Ranga Reddy District - respondent No.2 under Section 3 (1) and (2) read with Section 2 (a) and (b) of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (Act No.1 of 1986) (for short 'the Act'), as illegal, arbitrary and violative of Articles 14, 21 and 22 of the Constitution of India, and to set him free from detention.

a) Respondent No.1 - State of Telangana has approved said order by issue of G.O.Rt.No.2630, General Administration (Law and Order) Department, dated 24-09-2015, further confirmed by issue of G.O.Rt.No.3040, dated 1711-2015, basing on the opinion tendered by the Advisory Board, having recorded satisfaction that detenu was indulging in activities of possession and sale of main ingredients to prepare I.D. Liquor, such as Black Jaggery and Navasagar, and organizing illegal sales of I.D. Liquor in contravention of Act, 1995, as amended in 1997 and Act, 1968 and, thus, his activities are prejudicial to maintenance of public order, as I.D. Liquor is dangerous to the life of general public health and recourse to normal law would involve

considerable time and may not be effective deterrent in preventing him from indulging in further activities, stamping him as a 'bootlegger' as defined under Section 2 (b) of the Act.

b) The grounds of detention annexed to the order of detention refer to three crimes. It is contended on behalf of the detenu that the order of detention itself is defective in arriving at subjective satisfaction, since no material at all was placed that the detenu was involved in organizing illegal sales of I.D. liquor.

c) By way of additional grounds, the petitioner raised the ground that the detaining authority has not supplied bail orders and petitions along with the detention order and the grounds of detention.

d) It is also contended that in paragraph No.12 of the counter, respondent No.2 has referred to the name of the detenu as "Doddi Srinivas" and, thus, the orders of detention suffer from want of subjective satisfaction reflecting that they were passed in mechanical manner.

ii) Respondent No.2 has filed counter.

Having narrated the contents of order of detention and grounds of detention, states that Government Chemical Examiner having examined the samples opined in his report, dated 15-09-2015

that the sample contains

(1) I.D. Liquor unfit for human consumption and injurious to health; (2) it is Jaggery, which can be used as raw material in manufacture of I.D. Liquor, it is fermented wash fit for distillation; and

(3) it is ammonium chloride i.e., Navsagar. Thus, all the three samples indicated identical opinions relating to corresponding crimes.

a) The counter also reflects that the Professor of Medicines and Chief Physician of Osmania General Hospital, Hyderabad, tendered remarks, dated 18-07-2007, on the ill-effect of illicit liquor causes stating therein thus: 1) Alcoholic Liver Diseases, 2) Cardiac Problems, like Bradycardia and Sudden death-Cardiomyopathy; 3) Mental irritation Stupor Coma, Convulsion and Renal Failure; and 4) Respiratory depression and Metabolic disorders.

Therefore, the detaining authority observing that the poor tribal people are getting attracted and addicted to consume I.D. liquor, which is injurious to public health, and that the activities of the detenu are likely to affect adversely in maintenance of public order, as it gives rise to grave or wide spread danger to the life of the public health, and recording his satisfaction, passed the order of detention and on

the Advisory Board's opinion, confirmation order was passed by respondent No.1 also expressing that in case he is released on bail, there is possibility of indulging in committing the very same offences.

W.P. No.35927 of 2015:

3. The detenu herein is one Amboth Srinu, son of Amboth Raagya, resident of Mall village, Yacharam Mandal, Ranga Reddy District, who alleged to have termed as 'bootlegger' as defined by the provisions of Section 2 (b) of the Act, as he repeatedly involved in activities of illegal possession, transportation and sale of I.D. liquor in contravention of Act, 1995, as amended in 1997, and number of cases have been registered against him.

a) Four crimes have been relied on by the detaining authority as the basis for recording satisfaction that the detenu is a 'bootlegger' under the Act.

i) Order of detention was passed by respondent No.2 - the Collector and District Magistrate, Ranga Reddy District in Proceedings No.C3/25311/2015, dated 28-09-2015, which was approved by respondent No.1 on 09-10-2015 in G.O.Rt.No.2735 of General Administration (Law and Order)

Department, and further confirmed by respondent No.1 also basing on the opinion given by the Advisory Board besides examining the grounds of detention and connected records in G.O.Rt.No.3160, dated 03.11.2015.

ii) Smt. Ambothu Lalitha, who is the wife of detenu, filed the writ petition seeking a Writ of Habeas Corpus declaring the action of respondent No.2 in issuing detention order, dated 28-09-2015, as illegal and to set her husband free from detention.

iii) In the grounds, the petitioner states that the order of detention lacks subjective satisfaction as offences said to have committed by detenu would attract punishment under provisions of Andhra Pradesh Prohibition Act after regular trial and detention cannot be made as a substitute for the ordinary law and absolve investigation authorities of their normal functions of investigating crimes and, thus, the invocation of detention law against him prohibiting him to face trial is bad in law and contrary to clause 4 (a) of Article 22 of the Constitution of India.

iv) The second ground is that the detaining authority went wrong in stating that the past record of the detenu reveals that he committed

crime Nos.644/2013-14, 37/2014-15 and 75/201415 in addition to four crimes, which constituted basis to pass impugned order as three of the crimes ended in acquittal and, therefore, the order of detention suffers from that material irregularity, besides reflecting non-application of mind.

v) Third ground is that the approval by respondent No.1 is beyond 12 days from the date of passing order of detention, which by itself is sufficient to invalidate the order of detention. vi) Fourth ground is that the order of detention passed by respondent No.2 is against the judgment rendered by this Court in Sheela Bai v. State of Andhra Pradesh [1], wherein this Court followed the decision of the Hon'ble Supreme Court in Munagala Yadamma v. State of Andhra Pradesh and others[2] vii) Fifth and last ground stated by the petitioner is that non-mentioning of period of detention in the order of detention passed by respondent No.2 is contrary to the judgment of the Hon'ble Supreme Court in Cherukuri Mani v. Chief Secretary, Government of Andhra Pradesh[3].

b) Respondent No.2 filed counter narrating the events recorded in the order of detention and grounds of detention with relevant details. Thereafter, states that Government Chemical Examiner had opined in his report, dated 16-09-2015, that the samples are I.D. liquor and unfit for human consumption and injurious to health.

i) It is also stated that the Professor of Medicines and Chief Physician of Osmania General Hospital, Hyderabad, tendered his remarks on the ill-effect of illicit liquor causes thus: 1) Alcoholic Liver Diseases, 2) Cardiac Problems, like Bradycardia and Sudden death Cardiomyopathy; 3) Mental irritation Stupor Coma, Convulsion and Renal Failure; and 4) Respiratory depression and Metabolic disorders.

ii) According to respondent No.2, all the mandatory provisions of the Act were strictly followed and only having arrived at the satisfaction that the activities of the detenu are prejudicial to the maintenance of public order, recorded the same and, therefore, sought to dismiss the writ petition.

W.P. No.36218 of 2015:

4. The detenu herein is one Doddi Srinivas, son of

D.

Shankaraiah, resident of Patel Nagar, Lalithabagh, Hyderabad.

His mother - Smt.D. Sharada filed the instant writ petition seeking a Writ of Habeas Corpus to set aside the order of detention passed by respondent No.2 in Proceedings No.C2/3546/2015, dated 2609-2015, and to set the detenu free from detention.

a) The order of detention was passed by the Collector and District Magistrate, Hyderabad District, dated 26-09-2015, terming the detenu as a 'bootlegger' as defined under Section 2 (b) of the Act, on the ground that he was repeatedly involved in the activities of possession, sale and transport of I.D. liquor in contravention of the Act, 1995 as amended in 1997, thus, indulging in lawless activities prejudicial to the maintenance of the public order and it is dangerous to the life of public health.

i) The said order was approved by respondent No.1 and further confirmed by respondent No.1 in G.O.Rt.No.3108 of General Administration (Law and Order) Department, dated 26-11-2015.

ii) The order of detention was passed based on five crimes relating to the offences under Section 7(A) read with Section 8(e) of the Act, 1995.

iii) The grounds agitated by the petitioner are; firstly, the detenu was in judicial custody as on the date of passing the order of detention in connection with Crime No.341-2015-16, dated 23-09-2015, and, therefore, possibility of continuing commission of crimes by the detenu which constituted as one of the grounds for recording subjective satisfaction does not arise, thereby vitiating the order of detention.

i v ) Second, that the detaining authority failed to refer to the bail petitions and bail orders in the order of detention and grounds of detention, which vitiate the detention order.

v) Third, that the sponsoring authority failed to place bail orders before the detaining authority for examination and non-supply thereof to the detenu by the detaining authority.

b) Respondent No.2 - The Collector and District Magistrate, Hyderabad District, filed counter referring to the events mentioned in the order of detention as well as the grounds of detention. Thereafter, states that in all the five crimes which constituted basis for passing the order of detention, the Government Chemical Examiner having analyzed the seized illicit liquor sachets tendered his opinion that the samples are I.D. liquor, unfit for human consumption, and

injurious to health, and basing on the same and also basing on the circumstance that recourse to normal law is not sufficient to deal with the prejudicial activities of the detenu and may not be effective deterrent, recorded satisfaction and passed the orders impugned herein.

i) Respondent No.2 also placed reliance on the decision of the Hon'ble Supreme Court in Subrahmanian v. State of Tamil Nadu [4], for the proposition that the Courts do not interfere with the subjective satisfaction reached by the detaining authority except in exceptional and extremely limited grounds, and the Court cannot substitute its own opinion for that of the detaining authority when the grounds of detention are precise, pertinent, proximate and relevant.

W.P. No.39956 of 2015:

5. The detenu herein is one Bukya Chander, son of Surya, resident of Jerripothula Thanda, Nangnoor Mandal, Medak District, who, said to have repeatedly committing the offences of manufacture, possession, transport and sale of I.D. liquor in contravention of the Act, 1995 as amended in 1997 and, thus, indulging in lawless activities prejudicial to maintenance of public order and it is dangerous to the public health. He is termed as 'bootlegger' as defined under Section

2 (b) of the Act.

a) His cousin - Bhukya Mohan, son of Lal Singh, filed this writ petition seeking a Writ of Habeas Corpus to set aside the order of detention passed by respondent No.2 in his Proceedings No.C1/4327/2015, dated 05-10-2015, by directing the respondents to set the detenu free from detention.

i) Basing on five grounds, in the sense, five crimes registered against the detenu for the offences under Section 7A read with 8(3) of the Act, 1995, and his involvement in clandestine movement and sale of I.D. liquor at his residence and other places, the order of detention was passed by exercising the powers under Section 3

(1) read with Section 2 (a) and (b) of the Act by respondent No.2 on 05-10-2015.

ii) It is also stated that the detenu was arrested and later released on bail in some of the crimes.

iii) The petitioner raised two main grounds to invalidate the order of detention. The first relates to failure to refer to the orders of bail in the order of detention and the grounds of detention passed by respondent No.2, which constituted vital documents and thereby vitiates the order of detention. In support of the said

submission, the learned counsel places reliance on the decisions of the Honble Supreme Court and this Court in M. Ahamedkutty v. Union of India and another[5], State of U.P. v. Kamal Kishore Saini[6], V. Muragesh v. Collector and District Magistrate, Chittoor and others[7], Durgam Subramanyam v. Govt. of A.P., rep.by its Chief Secretary, Hyderabad and others[8], and Rushikesh Tanaji Bhoite v. State of Maharashtra and others[9].

iv) Second, failure of the sponsoring authority to place bail orders before the detaining authority for examination and non-supply of bail orders to the detenu by the detaining authority, which would vitiate the orders of detention, and in support thereof, the learned counsel places reliance on the decisions of the Hon'ble Supreme Court in Ramachandra A. Kamat v. Union of India and others[10], Smt.

Icchu Devi Choraria v.

Union of India[11], Shri Lallubhai Jogibhai Patel v. Union of India and others[12], Mehrunissa v. State of Maharashtra[13], Smt.

Shalini Soni and

others v. Union of India and others[14], and Rushikesh Tanaji Bhoite's Case (Supra 9).

b) Respondent No.2 - the Collector and District Magistrate, Medak District at Sangareddy filed counter. Having referred to the details of order of detention and grounds of detention reproducing the same, states that the Chemical Examiner has opined that the I.D. liquor contains "alcohol, fusel oil and allied impurities and unfit for human consumption and injurious to health."

i) It is also stated that respondent No.1 confirmed the order of detention taking into consideration opinion tendered by Advisory Board. It is stated that all procedural formalities have been strictly followed.

ii) Respondent No.2 also referred to the decisions of the Hon'ble Supreme Court in Haradhan Saha v. State of West Bengal [15] and Subrahmanian's Case (Supra 4).

W.P. No.40035 of 2015:

6. The detenu herein is one Jail Singh, son of Rathan Singh, resident of Sikh Chowani, Rajendranagar Mandal, Ranga Reddy District. His wife - Smt. Sony Kour filed this writ petition seeking a Writ of Habeas Corpus questioning the order of detention passed by respondent No.1 in

Proceedings No.C3/3607/2015, dated 12-05-2015, approved by respondent No.2 in G.O.Rt.No.1426 of General Administration (Law and Order) Department, dated 21-05-2015, as illegal, arbitrary and violative of principles of natural justice and to set aside the same and to set the detenu free from detention.

a) The order of detention and grounds of detention would show that the detenu was repeatedly involved in the activities of illegal possession, transportation and sale of I.D. liquor in contravention of Act, 1995 as amended in 1997 and, thus, the detaining authority termed him as a 'bootlegger' as defined under Section 2 (b) of the Act, referring to the detenu's involvement in ten crimes, basing on which, satisfaction in passing order of detention was recorded on 12.05.2015, informing him also about his right to make representation against his detention to detaining authority or the Advisory Board or the Government of Telangana State.

i) The grounds raised by the petitioner are to the effect that since the detenu is already facing criminal cases under the provisions of Prohibition and Excise Act in criminal Courts, the order of detention passed against him is against the principles of natural justice and contrary to the

settled proposition of law of the Hon'ble Supreme Court as well as the High Court and, therefore, the order of detention is illegal.

ii) In the same context, it is stated, that the detention order is contrary to the recent judgment of the Hon'ble Supreme Court in Rekha v. State of Tamil Nadu[16], wherein it was held that ordinary law of the land was sufficient to deal with the situation and hence recourse to the preventive detention laws is illegal.

Even the petitioner places reliance on the decision of the Hon'ble Supreme Court in Yamman Ongvi Lembi Leima v. State of Manipur [17], rendered by a threejudge bench and sought to set aside the order of detention.

b) In the counter, respondent No.1 - the Collector and District Magistrate, Ranga Reddy District, having adverted to the events recorded in the order of detention and grounds of detention, states that opinion of the Government Chemical Examiner would show that seized illicit liquor in all the cases are I.D. liquor unfit for potable purpose and also unfit for human consumption and injurious to health.

i) The detaining authority also referring to

remarks tendered by Professor of Medicines and Chief Physician of Osmania General Hospital, Hyderabad, as to the ill-effect of illicit liquor causes; 1) Alcoholic Liver Diseases, 2) Cardiac Problems, like Bradycardia and Sudden death Cardiomyopathy; 3) Mental irritation Stupor Coma, Convulsion and Renal Failure; and 4) Respiratory depression and Metabolic disorders and arriving at satisfaction that such I.D. liquor would cause a grave danger to the public health at large and adversely affects public order within the meaning of Section 2 (a) of the Act, passed the order of detention, as the normal law would involve considerable time and may not be effective deterrent in preventing the detenu from indulging in further activities prejudicial to the maintenance of public order, and sought to dismiss the writ petition.

W.P. No.40662 of 2015:

7.

The detenu herein is one Vadthya Ranjyanaik, son of Suryanaik, resident of Dosapally Peddathanda, Regode Mandal, Medak District.

a) His elder brother - Sangya Naik, filed this writ petition seeking a Writ of Habeas Corpus to declare order of detention passed by respondent No.2 in Proceedings No.C1/4270/2015, dated 02-10-2015, and to set the detenu free from

detention.

i) Respondent No.2 - the Collector and District Magistrate, Medak District passed the order of detention on 02-10-2015, treating the detenu as a 'bootlegger' as defined under Section 2 (b) of the Act, as he repeatedly involved in the activities of manufacture, transport and sale of I.D. liquor in contravention of the Act, 1995 as amended in 1997 and the Act, 1968, thus, indulging in criminal activities prejudicial to the maintenance of public order and dangerous to the health of general public and, thus, recording satisfaction, passed order of detention mentioning that the detenu was in judicial remand in connection with Crime No.432/2015-16, dated 2509-2015 of Prohibition and Excise Station, S.H.O., Andole, and lodged in Sub-Jail, Andole, and if he is released on bail, being fugitive, he may not appear again.

His involvement in three crimes is the basis for passing the order of detention by respondent No.2.

ii) The grounds raised by the petitioner are to the effect that invocation of provisions of Preventive Detention is in gross abuse of process of law and as an uninspiring and short cut method to the prosecution under regular process and,

therefore, the same is bad and arbitrary.

iii) Second, that the detaining authority did not consider the relevant facts, such as granting of bail in the above cases and its impact on subjective satisfaction, and equally irrelevant grounds/allegations, such as detenu has purchased, transported and sold the I.D. liquor without being backed by any material to support the satisfaction recorded in passing the impugned order and, therefore, sought to set aside the order of detention.

b) In the counter, respondent No.2 - the Collector and District Magistrate, Medak District at Sangareddy, has referred to the main events recorded in the order of detention and grounds of detention with relevant details and, thereafter, referred to the opinion tendered by the Chemical Examiner that the samples of contraband are I.D. liquor, which is unfit for human consumption and injurious to health, and since the object of the Act is to prevent recurrence of the offences which affect the public health and public order, the satisfaction recorded by respondent No.2 in passing the order of detention does not suffer from any illegality.

The decision of the Hon'ble Supreme Court in Subrahmanian's Case (Supra

4) is referred and sought to dismiss the writ

petition.

c) The petitioner filed reply affidavit stating that respondent No.2 has not traversed the point raised by the petitioner that the detenu even by being in judicial custody and cannot be termed as 'habitual offender', and places reliance on the decision of Hon'ble Supreme Court in Munagala Yadamma's Case (Supra 2) stating that the orders of detention are contrary to the ratio laid down by the Hon'ble Supreme Court therein.

8. W.P. No.40850 of 2015 : The detenu herein is one Jalasutra Venkataswamy, son of Nagabhushanam, resident of Ramanakkapeta village of Mangapeta Mandal, Warangal District. a) His wife - Smt. Jalasutra Dhana Lakshmi, filed this writ petition seeking a Writ of Habeas Corpus for production of the detenu and to declare orders of detention passed by respondent No.2 in Proceedings No.267/2015/P&E/MBD/B2, dated 0109-2015, as confirmed by respondent No.1 in G.O.Rt.No.2841 of General Administration (Law and Order) Department, dated 26-10-2015, as illegal and arbitrary and to set the detenu free from detention.

i) Respondent No.2, on the ground that the detenu, despite prohibition on I.D. liquor, indulged

in the activities of possession and dealing in I.D. liquor in contravention of the Act, 1995 and, thus, terming him as a 'bootlegger' as defined under Section 2 (b) of the Act, and recording his satisfaction on the basis of the involvement of the detenu in three crimes under Section 7 (A) read with 8 (e) of the Act, 1995, passed the order of detention to prevent him from indulging further in bootlegging activities.

ii) The grounds raised by the petitioner are, that offences of illegal possession and transportation of I.D. liquor would not come within the definition of 'bootlegger' as defined in Act No.1 of 1986, and the alleged acts attributed to the detenu cannot constitute basis to pass order of detention.

iii) Second, that the offences complained of can be dealt with under the ordinary law of the land and taking recourse to the provisions of the preventive detention laws is contrary to the constitutional guarantee enshrined in Articles 19 and 21 of the Constitution of India.

iv) Third, relates to failure of the sponsoring authority to place orders of bail granted in favour of the detenu and, thus, the detaining authority in the absence of complete information has come to the conclusion in passing

the order of detention reflecting that it suffers from want of relevant material in recording subjective satisfaction.

v) Fourth, non-supply of bail orders which disabled him to make effective representation constitutes violative of Article 22 (5) of the Constitution of India.

vi) Fifth, delay in disposal of representation filed on behalf of the detenu stating that the representation was presented on 08-10-2015, to respondent Nos.1 and 2 by registered post and respondent No.1 by its proceedings, dated 09-11-2015, rejected the same on the premise that there were no valid grounds. It is stated that it is mandatory for the State Government to consider representation independently before confirming the order of detention and failure to consider the same, vitiates the order of detention. Hence, sought to set aside the orders of detention.

b) Respondent No.2 - the Collector and District Magistrate, Warangal District, filed counter mentioning therein the relevant events mentioned in the order of detention and grounds of detention and extracting the definition of 'bootlegger' as defined in Section 2 (b) of the Act. i) It is stated that in all the three cases apart

from the I.D. liquor, huge quantity of Fermented Wash, Black Jaggery and Alum was also seized from the premises of the detenu, which are used in preparation of I.D. liquor, and the Chemical Examiner's report shows that samples contained I.D. liquor are unfit for potable purpose and injurious to health.

ii) In regard to the ground that non-supply of bail orders and bail petitions raised by the petitioner, respondent No.2 states that in all three cases, the detenu was enlarged on bail on 23-092014 and 26-06-2015, and for the first time, the petitioner has come up with the plea that the bail orders granted were not furnished to the detenu, and neither the petitioner nor the detenu have ever made any such request to the detaining authority or the Government or the Advisory Board and, thus, it is nothing but an afterthought, and even, according to petitioner, she made a representation, dated 08-10-2015, to respondent Nos.1 and 2, and the same was considered and disposed of by respondent No.1 and, therefore, no prejudice was caused to the detenu in making the representation.

iii) In regard to the ground that there has been enormous delay in disposal of representation,

respondent No.2 while giving the details, referred to the decision of the Hon'ble Supreme Court in K.M. Abdulla Kunhi v. Union of India[18], wherein the Hon'ble Supreme Court held that the competent authority can consider representation only after the order of confirmation was issued based upon the opinion tendered by the Advisory Board. The respondent No.2 also placed reliance on the decision of the Hon'ble Supreme Court in Subrahmanian's Case (Supra

4) on subjective satisfaction in passing the order of detention by the detaining authority, as mentioned in the above, and sought to dismiss the writ petition.

W.P. No.6560 of 2016:

9. The detenu herein is one Bhukya Ganesh, son of Shakriya, resident of Tallakunta thanda, Bheemgal Mandal, Nizamabad District.

a) His mother - Smt. Bhukya Laxmi is the petitioner herein.

She filed this writ petition seeking a Writ of Habeas Corpus to declare the order of detention issued by respondent No.2 in Proceedings No.D1/331/PD/2015, dated 30-102015, further confirmed by respondent No.1 in G.O.Rt.No.2950 of General Administration (Law and Order) Department, dated 06-11-2015, as

illegal and against the principles of natural justice, and to set the detenu free from detention.

i) Respondent No.2 stating that the detenu is repeatedly involved in the activities of illegal possession, transportation and sale of I.D. liquor in contravention of the Act,1995, as amended in 1997, and, thus, terming him as a 'bootlegger' as defined under Section 2 (b) of the Act, as his clandestine bootlegging activities are prejudicial to the maintenance of the public order and is also dangerous to the public life and health, and mentioning the crime history and his involvement in three cases arrived at the satisfaction for invoking the provisions of the Act and passed the order of detention by exercising the powers conferred under Section 3 (1) and (2) read with Section 2(a) and (b) of the Act.

ii) The petitioner claimed that her son is very innocent and is falsely implicated leaving the original culprits and stated that the crimes mentioned in order of detention were registered as C.C. Nos.432 of 2015, 435 of 2015 and 433 of 2015, respectively.

iii) She states that the order of detention suffers from want of subjective satisfaction and

the detaining authority based on false reply passed the order.

iv) The only ground agitated by her is that herself and her son were not given any opportunity to represent before the Advisory Board to explain the real facts and, therefore, sought to set aside the orders of detention.

b) Respondent No.2 - the Collector and District Magistrate, Nizamabad District filed counter referring to the details of crimes on the basis of which, order of detention was passed, and strict compliance of procedural formalities in passing the order of detention.

i) It is stated that the Chemical Examiner, who analyzed the samples of contraband seized from the scene of occurrence, opined that the samples are "I.D.

liquor unfit for human consumption and injurious to health and with regard to fermented jaggery wash it was reported that it was fermented jaggery wash fit for distillation"

and, thus, detenu squarely answers the description of 'bootlegger' as defined in clause (b) of Section 2 of the Act.

ii) It is stated that taking note of antecedents and conduct of the detenu, and commission of series of offences in quick

succession and to prevent recurrence of such offences which affects public health and public order, respondent No.2 passed the order of detention.

The respondent No.2 also referred to the decision of Hon'ble Supreme Court in Subrahmanian's Case (Supra 4), and sought to dismiss the writ petition.

10. Heard Sri Karanam Ramesh, learned counsel for the petitioner in W.P. No.32707 of 2015; Sri M. Damodar Reddy, learned counsel for petitioner in W.P.

No.35927 of 2015;

Sri Challa Dhanamjaya, learned counsel for the petitioner in W.P.

No.36218 of and W.P.No.39956 of 2015; Sri M. Amarnath, learned counsel for the petitioner in W.P. No.40035 of 2015; Sri P. Prabhakar Rao, learned counsel for the petitioner in W.P. No.40662 of 2015; Sri T.

Nagarjuna Reddy, learned counsel for the petitioner in W.P. No.40850 of 2015; and Ms. Suvarna Jayasree, learned counsel for the petitioner in W.P. No.6560 of 2016, and the learned Government Pleader for Home appearing for the respondents in all the cases.

SUBMISSIONS:

11. The learned counsel in W.P. No.32707 of 2015 makes the following submissions:

i) He attacks validity of the order of detention and confirmation of detention order on the ground that the subjective satisfaction, recorded by the respondents in making the said orders, did so, without material being placed to substantiate their satisfaction that the detenu was organizing illegal sales of I.D. liquor.

a) The learned counsel places reliance on the decision of the Hon'ble Supreme Court in Pebam Ningol Mikoi Devi v.

State of Manipur and others[19], to substantiate his submission that even one non-existent, misconceived or irrelevant ground or reason is enough to invalidate the order of detention.

b) The second decision relied on by him is Munagala Yadamma's Case (Supra 2), for the proposition that where ordinary law is sufficient to deal with the alleged offence, preventive detention is unwarranted and recourse to preventive detention laws cannot be taken as a substitute to ordinary law, where the facts would show that the detenu was described as 'bootlegger' indicating that he was involved in several cases of violation of Section 7-A, read with Section 8(c) of the Andhra

Pradesh Prohibition Act relating to illicit distillation of liquor. The Hon'ble Supreme Court while following the decisions rendered earlier in Rekha's Case (Supra 16), Yumman Ongvi Lembi Leima's Case (Supra 17), held in paragraph Nos.7 to 9 thus:

"7.

Having considered submissions made on behalf of the respective parties, we are unable to accept the submissions made on behalf of the State in view of the fact that decision in Rekha's case (supra), in our view, clearly covers the facts of this case as well. The offences complained of against the Appellant are of a nature which can be dealt with under the ordinary law of the land.

Taking recourse to the provisions of preventive detention is contrary to constitutional guarantees enshrined in Articles 19 and 21 of Constitution and sufficient grounds have to be made out by the detaining authorities to invoke such provisions.

8. In fact, recently, recently in in Yumman Ongbi Lembi Leima v. State of Manipur and Ors.[ (2012) 2 SCC 176], we had occasion to consider the same issue and the three-Judge Bench had held that the personal liberty of an individual is the most precious and prized right guaranteed under the Constitution in Part III thereof. The State has been granted the power to curb such rights under criminal laws, as also

under laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of State and its citizens, or seek to disturb public law and order, warranting issuance of such an order.

9. No doubt, the offences alleged to have been committed by Appellant are such as to attract punishment under Andhra Pradesh Prohibition Act, but that in our view has to be done under the said laws and taking recourse to preventive detention laws would not be warranted. Preventive detention involves detaining of a person without trial in order to prevent him/her from committing certain types of offences.

But such detention cannot be made a substitute for the ordinary law and absolve investigating authorities of their normal functions of investigating crimes which the detenue may have committed. After all, preventive detention in most cases is for a year only and cannot be used as an instrument to keep a person in perpetual custody without trial. Accordingly, while following three-Judge Bench decision in Rekha's case (supra), we allow the appeal and set aside the order passed by the High Court dated 20th July, 2011, and also quash the Detention Order dated 15th

February, 2011, issue by Collector and District Magistrate, Ranga Reddy District, Andhra Pradesh."

c) On the second ground as to non-supply of bail applications and bail orders, the learned counsel places reliance on the decision of the Hon'ble Supreme Court in M. Ahamedkutty's Case (Supra 5), wherein it was held that nonconsideration of bail application and bail order, which constituted vital material, by the detaining authority or non-supply of copies thereof to the detenu, would be violative of Article 22 (5) of the Constitution of India, and continued detention would be illegal. To the same effect, the decisions on which reliance was placed are Rushikesh Tanaji Bhoite's Case (Supra 9), Abdul Sathar Ibrahim Manik v.

Union of India and others[20], and the decision of a Hon'ble Division Bench of this Court in Vasnthu Sumalatha v.

State of Andhra Pradesh[21].

ii) The learned counsel for the petitioner in W.P. No.35927 of 2015 places reliance on the decisions of the Hon'ble Supreme Court in M.

Ahamedkutty's Case (Supra 5) and Rushikesh Tanaji Bhoite's Case (Supra 9), in the context of non-supply of bail orders and bail applications vitiating subjective satisfaction of the detaining

authority.

iii) The learned counsel in W.P. No.36218 of 2015 makes the following submissions:

a) On the first ground that the order of detention vitiates for the reason that the detenu was in judicial custody in connection with Crime No.341/2015-16, dated 23-09-2015, as on the date of passing of the detention order i.e. 26-09-2015, and placed reliance on the decisions of the Hon'ble Supreme Court in N.

Meera Rani v.

Government of Tamil Nadu and another [22], Dharmendra Suganchand Chelawat v. Union of India and others[23], Kamarunnisa v.

Union of India and another[24]. Union of India v. Paul Manickam and another [25], Rekha's Case (Supra 16) and a decision of the Hon'ble Division Bench of this Court in V. Uma Maheshwari v. The State of Telangana[26].

b) In the context of failure to refer to the orders of bail in the order and grounds of detention which vitiates order of detention, the learned counsel placed reliance on the decisions of Hon'ble Supreme Court in M.

Ahamedkutty's Case (Supra 5), Kamal Kishore Saini's Case (Supra 6), V. Muragesh's Case

(Supra 7), and Durgam Subramanyam's Case (Supra 8).

c) On the third ground that failure to furnish the bail orders before the detaining authority for its examination in recording its satisfaction and non-supply of the same to the detenu by the detaining authority, the learned counsel placed reliance on the decisions of the Hon'ble Supreme Court in Ramachandra's Case (Supra 10), Smt. Icchu Devi Choraria's Case (Supra 11), Shri Lallubhai Jogibhai Patel's Case (Supra 1 2 ) , Mehrunissa's Case (Supra 13), Smt.

Shalini Soni's Case (Supra 14), Rushikesh Tanaji Bhoite's Case (Supra 9), and Vasnthu Sumalatha's Case (Supra 21).

Thus, according to the learned counsel for the petitioner, orders of detention passed by respondent No.2 as confirmed by respondent No.1 are unsustainable and, therefore, sought to set aside the same, letting the detenu free from detention.

iv) The learned counsel for the petitioner in W.P. No.40035 of 2015 places reliance on the decision in Munagala Yadamma's Case (Supra 2), and the judgment of a Single Judge of this Court in Bunga Samson v. The State of Andhra Pradesh[27].

v) The learned counsel for the petitioner in W.P. No.40662 of 2015 makes the following submissions:

a) On subjective satisfaction, in support of the ground that the detaining authority has passed the order of detention in a mechanical manner and on vague, irrelevant and non-existent grounds, the learned counsel placed reliance on the decisions of the Hon'ble Supreme Court in K. Nageswara Naidu v. Collector and District Magistrate, Kadapa, Y.S.R. District, Andhra Pradesh[28]. He also placed reliance on the decision of the Hon'ble Supreme Court in Lal Kamal Das v. The State of W.B. [29], to the effect that the detention laws can only be resorted to if past prejudicial conduct of the detenu makes it probable that he will act similarly in future also, and the detention for the purpose of avoiding normal process of criminal prosecution for an offence is bad. On the proposition of recourse to preventive detention law cannot be taken as a substitute to the ordinary law, the learned counsel relied on the decision of the Hon'ble Supreme Court in Munagala Yadamma's Case (Supra 2).

He has also placed reliance on the decision of a

Single Judge of this Court in Bunga Samson's Case (Supra 27) for the very same proposition as this Court by following the earlier decision in W.P. No.4686 of 2014, set aside the detention order therein by following the principle laid down by a three-judge bench of the Hon'ble Supreme Court in Rekha's Case (Supra 16), Munagala Yadamma's Case (Supra 2) and Yamman Ongvi Lembi Leima's Case (Supra 17). The learned counsel also placed reliance on the decision of the Hon'ble Supreme Court in Srilal Shaw v. State of W.B. and others [30], wherein it was held in paragraph No.7, thus:

"7. We are therefore of the opinion that on the material which was available to the detaining authority, it was impossible to arrive at the conclusion that the possession of the petitioner was unlawful. It seems to us that the prosecution was in all probability dropped as the petitioner might have been able to establish that his possession of the goods was not unlawful.

The petition must therefore succeed.

Accordingly, we make the Rule absolute and direct that petitioner shall be set at liberty forthwith."

vi) The learned counsel for the petitioner in W.P. No.40850 of 2015, placed reliance on the

decision of a Single Judge of this Court in Bunga Samson's Case (Supra 27), to which reference has already been made in the above by us. He has also placed reliance on yet another judgment rendered by a Hon'ble Division Bench of this Court in Vasnthu Sumalatha's Case (Supra 21).

vii) The learned counsel for the petitioner in W.P. No.6560 of 2016 makes the following submission:

a) The only ground on which orders of detention is questioned is that no opportunity was afforded to the detenu to make a representation, and thereby he was deprived of submitting effective representation with authorities concerned in accordance with the Constitutional safeguard engrafted in Article 22

(5) of the Constitution of India and, therefore, the orders of detention vitiate.

12. On various contentions raised by the learned counsel in each of these writ petitions, the learned Government Pleader for Home, in relation to subjective satisfaction recorded by detaining authority, places reliance on the decision of the Hon'ble Supreme Court in D.M. Nagaraja v.

Government of Karnataka and others[31]. The Hon'ble Supreme Court while

extracting various principles laid down by the Constitution Bench in Haradhan Saha's Case (Supra 15), in the context of the object of preventive detention, held in paragraph No.9, thus: "9.

The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. Even, as early as in 1975, the Constitution Bench of this Court considered the procedures to be followed in view of Articles 19 and 21 of the Constitution. In Haradhan Saha vs. State of West Bengal & Ors.

(1975) SCC 198, Constitution Bench of this Court, on going through order of preventive detention under Maintenance of Internal Security Act, laid down various principles which are as follows:- ".....First; merely because a detenue is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act.

Second; the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the

District Magistrate issuing an order under preventive detention.

Third; where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardize the security of the State or the public order.

Fourth; the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate (sic) the order.

Fifth; the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances."

i) The learned Government Pleader also placed reliance on the decision in G. Reddeiah v. Government of Andhra Pradesh and another[32], rendered by the Hon'ble Supreme Court, wherein it was held that the detaining authority subjectively satisfied about the offences lebelled against detenue, habituality in continuing the same and difficult to control him under the normal circumstances, the detaining authority is free to pass an appropriate order under Section 3 of the Act by fulfilling the

conditions stated therein.

ii) In District Collector, Anantapur and another v.

V. Laxmanna[33], relied on by the learned Government Pleader, the Hon'ble Supreme Court while observing that if the detention is on the ground that the detenu is indulging in manufacture or transport or sale of arrack, then that by itself would not become an activity prejudicial to the maintenance of public order because the same can be effectively dealt with under the provisions of the Excise Act, but if the arrack sold by the detenu is dangerous to public health, then under the Act, it becomes an activity prejudicial to maintenance of public order and, thus, it becomes necessary for the detaining authority to be satisfied on material available that the arrack dealt with by the detenu is an arrack which is dangerous to public health, to attract the provisions of the Act and if the detaining authority is satisfied that such material exists as in the form of report of the Chemical Examiner or otherwise, copy of such material should also be given to the detenu to afford him an opportunity to make an effective representation. iii) Concerning submission of the learned

counsel based on the decisions in Rekha's Case (Supra 16) and Yumman Ongbi Lembi Leima's Case (Supra 17), that the offences herein are of a nature which can be dealt with under the Excise Act and taking recourse to the provisions of the Preventive Detention is unwarranted, the learned Government Pleader places reliance on decision of the Hon'ble Supreme Court in Smt. Hemlata Kantilal Shah v.

State of Maharashtra and another[34], extracting the law laid down by the Hon'ble Supreme Court, earlier, in K.M.

Chokshi v.

State of Gujarat[35] stated in paragraph Nos.20 and 21 thus:

" 20. The next point urged by Mr.

Ram Jethmalani is that in the instant case, the proper course for the Government was to prosecute and convict the detenu for the offence, if any, for violation of the provisions of the Customs Act. In support of his contention he cites a decision of this Court reported in [1980] ; S.C.R. 54. In that decision, the Court after reviewing a number of cases summarised the law as follows:- "The ordinary criminal process is not to be circum- vented or shortcircuited by ready resort to preventive detention.

But, possibility of launching a criminal prosecution is not an absolute bar

to an order of preventive detention.

Nor is it correct to say that if such possibility is not present to the mind of the detaining authority the order of detention is necessarily bad.

However, failure of detaining authority to consider the possibility of launching a criminal prosecution may, in circumstances of a case, lead to the conclusion that detaining authority had not applied its mind to the vital question whether it was necessary to make an order of preventive detention.

Where an express allegation is made that the order of detention was issued in a mechanical fashion without keeping present to its mind the question whether it was necessary to make such an order when an ordinary criminal prosecution could well serve the purpose, the detaining authority must satisfy the Court that the question too was borne in mind before the order of detention was made. lf the detaining authority fails to satisfy the Court that the detaining authority so bore the question in mind the Court would be justified in drawing the inference that there was no application of the mind by the detaining authority to the vital question whether it was necessary to preventively detain the detenu."

21. The rule laid down is that a prosecution or the absence of A it is not an absolute bar to an order of preventive detention; the authority may prosecute the offender for an

isolated act or acts of an offence for violation of any criminal law, but if it is satisfied that the offender has a tendency to go on violating such laws, then there will be no bar for the State to detain him under a Preventive Detention Act in order to disable him to repeat such offences.

What is required is that detaining authority is to satisfy the Court that it had in mind the question whether prosecution of the offender was possible and sufficient in the circumstances of the case. In some cases of prosecution it may not be possible to bring home the culprit to book as in case of a professional bully, a murderer or a dacoit, as witnesses do not come forward to depose against him out of fear, or in case of international smuggling, it may not be possible to collect all necessary evidence without unreasonable delay and expenditure to prove the guilt of the offender beyond reasonable doubt."

iv) The learned Government Pleader has also placed reliance on the decision of the Hon'ble Supreme Court in Kanuji S. Zala v. State of Gujarat and others[36].

The facts therein would show that the detenu was a bootlegger involved in the illegal activity of selling liquor; five cases were registered against him under the Bombay Prohibition Act, 1949.

The Hon'ble Supreme Court while observing that in three

decisions relied on by the learned counsel for the detenu in Omprakash v. Commissioner of Police[37];

Rashidmiya v.

Police Commissioner[38];

and Piyush Kantilal Mehta v. Commissioner of Police [39], the point, whether public order can be said to have been disturbed on the ground that the activity of the detenu was harmful to the public health did not arise for consideration, and while holding that the detaining authority has specifically mentioned in the grounds that the activity of the detenu was likely to cause harm to the public health, and that by itself is sufficient to amount to affecting adversely the public order as defined under the Act, held in paragraph Nos.4, 5 and 6, thus:

"4. In our opinion there is no substance in this contention. In none of the three cases relied upon by the learned counsel the point whether public order can be said to have been disturbed on the ground that the activity of the detenu was harmful to the public health arose for consideration. It appears that in those three cases, the detaining authority had not recorded such satisfaction. Moreover, in those cases the detaining authorities had referred to some incidents of beating but there was no material to show that as a result thereof even tempo of public life was disturbed.

In this case, the detaining authority has specifically stated in grounds of detention that selling of liquor by the petitioner and its consumption by the people of that locality was harmful to their health.

The detaining authority has also stated that the statements of witnesses clearly show that as a result of violence resorted to by petitioner even tempo of the public life was disturbed in those localities for some time. The material on record clearly shows that members of the public of those localities had to run away from there or to go inside their houses and close their doors.

5.

What is required to be considered in such cases is whether there was credible material before the detaining authority on the basis of which a reasonable inference could have been drawn as regards adverse effect on maintenance of public order as defined by the Act. It is also well settled that whether the material was sufficient or not is not for the courts to decide by applying an objective test as it is a matter of subjective satisfaction of detaining authority.

The observation made by this Court in Om Prakash v. Commissioner of Police and Ors. 1988 Supp. (2) SCC 576 that "as in Piyush Mehta Case, the materials available on record in the present case are not sufficient and adequate for holding that the

alleged prejudicial activities of the detenu have either affected adversely or likely to affect adversely the maintenance of public order within meaning of Section 4(3) of the Act and as such, the order is liable to be quashed"

are to be understood in the context of the facts of that case.

6. As already stated earlier, in this case the detaining authority has specifically mentioned in grounds that the activity of the e detenue was likely to cause harm to the public health and that by itself is sufficient to amount to affecting adversely the public order as defined by the Act. The detaining authority has also stated that as a result of resorting to violence by petitioner for carrying on his bootlegging activity, even tempo of public order has also disturbed on some occasions. In view of the material on record it cannot be said that the satisfaction of the District Magistrate, in this behalf, was not reasonable or genuine."

v) The learned Government Pleader has placed reliance on the decision of the Hon'ble Supreme Court in Joydeb Gorai v. State of West Bengal[40], rendered by a larger bench of Hon'ble Supreme Court holding that confirmation of order of detention within three months from the date of the arrest is valid, following the decisions earlier rendered in Deb

Sadhan Roy v. State of West Bengal [41], Ujjal Mandal v. State of West Bengal[42].

vi) On delay in disposal of representation, the learned Government Pleader places reliance on the decision of the Hon'ble Supreme Court in K.M. Abdulla Kunhi's Case (Supra 18). The Hon'ble Supreme Court while laying down that there is no constitutional mandate under Article 22 (5) to consider the representation before confirming the order of detention, and what is required is that there should be real and proper consideration by the Government in passing order of detention and confirmation held in paragraph No.19, thus:

"19. There is no constitutional mandate under Clause (5) of Article 22, much less any statutory requirement to consider representation before confirming the order of detention. As long as Government without delay considers the representation with an unbiased mind there is no basis for concluding that the absence of independent consideration is the obvious result if the representation is not considered before confirmation of detention. Indeed, there is no justification for imposing this restriction on the power of the Government. As observed earlier, the Government's consideration of the representation is for a different

purpose, namely, to find out whether detention is in conformity with the power under the statute. This has been explained in Haradhan Saha case, where Ray, C.J., speaking for the Constitution Bench observed that consideration of the representation by Government is only to ascertain whether the detention order is in conformity with the power under the law. There need not be a speaking order in disposing such representation. There is also no failure of justice by the order not being a speaking order. All that is necessary is that there should be real and proper consideration by the Government."

vii) In the context of effect of passing order of detention while the detenu was in judicial custody, the learned Government Pleader places reliance on decision rendered by Constitution Bench of Hon'ble Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan and another[43].

The Hon'ble Supreme Court while observing that the question as to order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case, dealt with illustratively in paragraph No.12, thus:

"12.

As an abstract

proposition of law, there may not be any doubt that s. 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail;

but relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail.

Take for instance, a case where a person has been sentenced to rigorous imprisonment for ten years.

It cannot be seriously suggested that soon after the sentence of imprisonment is pronouncement on the person, the detaining authority can make an order directing the detention of the said person after he is released from jail at the end of the period of the sentence imposed on him. In dealing with this question, again he considerations of proximity of time will not be irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would be soon released from jail, it may be possible for authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after he is released from jail, and if authority is bona fide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released. The antecedent

history and the past conduct on which the order of detention would be based would, in such a case, be proximate in point of time and would have a rational connection with the conclusion drawn by the authority that the detention of the person after his release is necessary.

It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years' rigorous imprisonment and the view that his detention should be ordered after his is released after running the whole of his sentence.

Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case."

viii) The learned Government Pleader has also incidentally placed reliance on the decision in Ganesh Traders (Kirana and General Merchants), Dhermapuri, Karimnagar District v. District Collector, Karimnagar and others[44], rendered by Hon'ble Full Bench of this Court. On factual aspect in W.P. No.32707 of 2015, the Hon'ble Full Bench of this Court summarized discussion on question whether keeping or being in possession of Black Jaggery material for the purpose of manufacture of liquor is an offence under the Excise Act, held in

paragraph No.52, thus:

"52. We may now summarise our discussion on the main question whether keeping or being in possession of black jaggery material for the purpose of manufacture of liquor is an offence under the Excise Act.

(a) The provisions of the A. P. Excise Act including Sections 13(f) and 34(e) should be interpreted with reference to the objects of Act and penal provisions dealing with excise offences should also receive broader interpretation having regard to the fact that the Excise Act is intended to achieve partially the objective of Art icle 47 of the Constitution of India;

(b) Having regard to the provisions of Sections 13, 34 and 53 and 55 of the Excise Act, we must hold that if Commissioner, Collector, Police Officer or Excise Officer "has reason to believe"

that black jaggery (material) is likely to be used for manufacture of ID liquor the same can be seized and persons can be arrested and subject to facts and circumstances of each case including any report of the chemical examiner a charge sheet can be filed under Section 34(e) of the Excise Act.

(c) x x x x (d) x x x x "

ix) In Collector & District Magistrate, West Godavari District, Eluru, A.P. and

others v. Sangala Kondamma[45] relied on by the learned Government Pleader, the Hon'ble Supreme Court in the context of plea of the detenu that the order is based on stale ground, held that if the grounds form a chain of incidents which are proximate to each other and last of the incident is proximate to the date of proposed detention, held, even if the first few incidents are not proximate to the date of detention, detention order cannot be set aside on ground of being stale.

x) In Vijay Kumar v. Union of India and others[46] relied on by the learned Government Pleader, in the context of validity of detention order, the Hon'ble Supreme Court while observing that if the detaining authority is aware that the detenu is already in jail and the compelling reasons for detention are apparent from the grounds of detention, the order does not vitiate, held in paragraph No.15, thus:

"15. On a conspectus of the above decisions, we are of the view that when a detenu is already under detention for an offence, whether bailable or non-bailable, detaining authority will take into his consideration fact of detention of the detenu and, as laid down in Sashi Aggarwal's case

(supra), there must be compelling reasons to justify his preventive detention in spite of the fact that he is already under detention on a charge of a criminal offence. There must be material for such compelling reasons and the material or compelling reasons must appear from the grounds of detention that will be communicated to the detenu.

In other words, two facts must appear from grounds of detention, namely,

1) awareness of the detaining authority of the fact that the detenu is already in detention and 2) there must be compelling reasons justifying such detention, despite the fact that the detenu is already under detention."

xi) The learned Government Pleader also placed reliance on two of the judgments rendered by different Hon'ble Division Benches of this Court i n Mr.

Arif Khan v.

The State of Telangana[47] and Muppidi Swapna v. The State of Telangana[48], contending that the request for quashing the orders of detention were refused by dismissing the writ petitions, where the orders of detention were passed based on Excise offences and rampant illegal transportation of illicit liquor in a few districts in the State of

Telangana, in which, principles laid down by the Hon'ble Supreme Court in connection with various aspects have been dealt, which decisions have been referred to in the above.

ON SUBJECTIVE SATISFACTION IN PASSING

ORDER

OF DETENTION AND MAKING CONFIRMATION ORDER:

13. This ground is raised by the respective petitioners in almost all writ petitions. We have adverted to the decisions, on which reliance was placed by the learned counsel for the respective petitioners stating that without any material being placed to show that the respective detenus have been involved in organizing illegal sale of I.D. liquor, the detaining authority passed the order of detention.

The decisions relied on are Pebam Ningol Mikoi Devi's Case (Supra 19) and Munagala Yadamma's Case (Supra 2), in which, Rekha's Cas e (Supra 16) and Yamman Ongvi Lembi Leima's Case (Supra 17) were followed.

i) We have also referred to the decision in D.M. Nagaraja's Case (Supra 31), in which, the principles laid down by the Constitution Bench of the Hon'ble Supreme Court in Haradhan Saha's C a s e (Supra 15) were extracted.

The fiveprinciples laid down in Haradhan Saha's Case, in our view, would directly answer the grounds raised

by the petitioners in all these writ petitions. They being; (1) that recourse to preventive detention laws is not bar when detenu is liable to be tried in a criminal Court; (2) arresting a person by the police and enlarging him on bail and initiating action to prosecute him under the Code of Criminal Procedure is not a bar in passing order of detention; (3) passing detention order while the detenu is in jail custody for a fair length of time;

(4) pendency of prosecution will not violate the order of detention; and (5) passing of an order of detention is only a precautionary measure and based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances.

ii) On examination of the order of detention, grounds of detention and confirmation order, we find that in W.P. No.32707 of 2015, the detenu was involved in three crimes indulging in activities of possession and sale of main ingredients to prepare I.D. liquor, such as Black Jaggery and Navsagar, and organizing illegal sales of I.D. liquor in contravention of the Act, 1995 as amended in 1997 and the Act, 1968, and, thus, the activities, according to detaining authority, are prejudicial to the maintenance of the public order as I.D. liquor is dangerous to the life of general

public.

iii) Now, we turn to what the Government Chemical Examiner opined on an examination of the samples collected from the I.D. liquor in possession of the detenu at the relevant time. He tendered opinion on 15-09-2015, in all three crimes stating that samples contained: 1) I.D. Liquor unfit for human consumption and injurious to health; 2) it is Jaggery, which can be used as raw material in the manufacture of I.D. Liquor, and it is fermented wash fit for distillation; and 3) it is Ammonium Chloride i.e., Navsagar. It is not as though that report of the Chemical Examiner alone is available in this case, but even the samples were examined by the Professor of Medicines and Chief Physician of Osmania General Hospital, Hyderabad and tendered his remarks, dated 18-07-2007, on the ill-effect of illicit liquor stating therein that it causes: 1) Alcoholic Liver Diseases, 2) Cardiac Problems, like Bradycardia and Sudden death Cardiomyopathy;

3) Mental irritation Stupor Coma, Convulsion and Renal Failure; and 4) Respiratory depression and Metabolic disorders. a) In W.P. No.35927 of 2015, as many as four crimes were registered by concerned Excise Police constituted basis for passing order of detention and the

Government Chemical Examiner on examination of the samples seized from the detenu, tendered an identical report as mentioned in the above, so were the remarks of the Professor of Medicines and Chief Physician of Osmania General Hospital, Hyderabad, as to the ill-effect of illicit liquor causes as mentioned in the above.

b) In W.P. No.36218 of 2015, as many as five crimes were registered against the detenu.

Similar was the report of the Government Chemical Examiner and the remarks of the Civil Assistant Surgeon, R.M.O. of Osmania General Hospital, Hyderabad, dated 28-022014. [ c) Similar report was tendered by the Government Chemical Examiner in W.P.

No.39956 of 2015, where the detenu was involved in as many as five crimes.

d) Even, in W.P.No.40035 of 2015, where the detenu is involved in ten crimes of similar nature, similar opinion was tendered by the Government Chemical Examiner and the remarks tendered by the Professor of Medicines and Chief Physician of Osmania General Hospital, Hyderabad, as to the ill

effects of illicit liquor as mentioned in the above.

e) In W.P. No.40662 of 2015, the detenu is involved in three crimes, and on analysis, the Government Chemical Examiner has tendered opinion that the I.D. liquor was unfit for human consumption and injurious to health.

f) In W.P. No.40850 of 2015, the detenu is involved in as many as three similar crimes, and the Excise Police seized the I.D. liquor, huge quantity of Fermented Wash, Black Jaggery and Alum from the premises of the detenu which are used in preparation of I.D. liquor, and the Government Chemical Examiner's report would show that the samples containing I.D. liquor are unfit for potable purpose and injurious to health.

g) In W.P. No.6560 of 2016, the detenu is involved in as many as three similar crimes and identical report was tendered by the Chemical Examiner, as mentioned in W.P.

No.40850 of 2015.

iv) We, therefore, find that the subjective satisfaction recorded by the detaining authority does not suffer from want of application of mind, when kept in view, the cascading effect of the

activities of detenus in committing the alleged crimes in all these writ petitions on the lives of the people at large. Thus, the activities of the detenus in all these cases and the satisfaction recorded by the authorities squarely fall within the four corners of the law laid down by the Hon'ble Supreme Court in Kanuji S. Zala's Case (Supra 36), where it was observed that the detaining authority, when specifically mentioned that the activities of the detenu was likely to cause harm to the public health, by itself is sufficient to amount to affecting adversely the public order as defined in the Act. We have even referred to in the above the decision in V.

Laxmanna's Case (Supra 33), wherein a similar view was taken by the Hon'ble Supreme Court observing that if the detention is on the ground that the detenu is indulging in manufacture or transport or sale of arrack and sold by the detenu, is dangerous to public health, then it becomes an activity prejudicial to the maintenance of public order under the Act. Hence, we find no merit in the submissions made by the respective learned counsel in these writ petitions.

14. The main argument of the learned counsel for the detenus in W.P. Nos.32707, 36218,

39956, 40662 and 40850 of 2015, respectively, is that the bail orders on which reliance was placed by respondent No.2 in passing the order of detention, were neither placed before him nor copies there-of, were supplied to the detenus and, thus, vitiate orders of detention.

i) We have already referred to in the above the decision relied on by the learned counsel for the respective petitioners in M. Ahamedkutty's Case (Supra 5) and other decisions in Kamal Kishore Saini's Case (Supra 6 ) , V. Muragesh's Case (Supra 7), Durgam Subramanyam's Case (Supra 8) and Rushikesh Tanaji Bhoite's Case (Supra 9), in the context of non-examination of the orders of bail by the detaining authority in the order of detention, and the decisions in Ramachandra's Case (Supra 10), Smt. Icchu Devi Choraria's Case (Supra 11), Shri Lallubhai Jogibhai Patel's Case (Supra 1 2 ) , Mehrunissa's Case (Supra 13), Smt.

Shalini Soni's Case (Supra 14) and Rushikesh Tanaji Bhoite's Case (Supra 9) dealing with the effect of failure of sponsoring authority to place bail orders before the detaining authority for examination and non-supply of bail orders to the detenus by the detaining authority.

ii) As an answer to the above contention

raised by the learned counsel for the respective petitioners, the learned Government Pleader relied on a judgment rendered by a Hon'ble Division Bench of this Court in Muppidi Swapna's Case (Supra 48), submitting that all these aspects have been elaborately dealt with in the light of the relevant principles laid down by the Hon'ble Supreme Court in the decisions referred to by the Hon'ble Division Bench of this Court. We would like to extract what has been stated by the Hon'ble Division Bench of this Court in paragraph Nos.9 and 10 thus:

"9. We, however, notice a line of cases where the Supreme Court declined to interfere with the orders of dentetion on the ground of nonsupply of documents which were referred to but not relied upon for the purpose of passing detention orders.

In Radhakrishnan Prabhakaran v.

State of Tamil Nadu [ (2009) 9 SCc 170 the Supreme Court drew a distinction between the documents 'relied upon' and the documents 'referred to'

in order.

In paragraph 8 of the report, it was observed: "We may make it clear that there is no legal requirement that a copy of every document mentioned in order shall invariably be supplied to the detenu.

What is important is that copies of

only such of those documents as have been relied on by the detaining authority for reaching satisfaction that preventive detention of the detenu is necessary shall be supplied to him." This view was reiterated by the Supreme Court in J. Abdul Hakeem (11supra).

A constitution Bench of the Supreme Court in Abdullah Kadher Batcha (10 supra), has reiterated the same view with the following observations.

"The court has a duty to see whether the non-supply of any document is in any way prejudicial to the case of the detenu.

The High Court has not examined as to how the non-supply of the documents called for had any effect on the detenu and/or whether the nonsupply was prejudicial to the detenu. Merely because copies of some documents have (sic not) been supplied, they cannot by any stretch of imagination be called as relied upon documents. While examining whether non-supply of a document would prejudice a detenu, the court has to examine whether the detenu would be deprived of making an effective representation in the absence of a document. Primarily, the copies which form the ground for detention are to be supplied and non-supply thereof would prejudice the detenu. But documents which are merely referred to for the purpose of narration of facts in that sense cannot be termed to be documents without the supply of which the detenu is prejudiced."

In the context of the present case,

reference to the above precedents will suffice and this Court does not propose to burden this judgment by multiplying references to judgments taking similar view.

Keeping in view the above ratio, it has to be seen whether the bail orders, copies of which were not supplied to the detenu, were relied upon in the detention order. In the impugned detention order, respondent No.2 referred to the above mentioned seven criminal cases and observed that in all those cases the detenu was arrested and released on bail, as per the extant provisions under which the bails were granted, and that department is unable to prevent the detenu from further indulging in unlawful activities affecting public health and public order. In the grounds of detention, the facts of each of the seven criminal cases were recorded and the opinion of the Chemical Examiner, Regional Prohibition and Excise Laboratory, Warangal, and the letter of the Professor of Medicine, MGM Hospital,Warangal were relied upon and it was observed that as the detenu was engaged in the sale of ID liquor, and his activities affect or are likely to affect adversely in maintenance of public order because they cause gave or widespread danger to the life and public health.

Respondent No.2 further observed as under:

"It is, therefore, established that the

cases booked against you under Prohibition and Excise laws failed to curb your illegal activities, which are found to be dangerous to public health and also prejudicial to the maintenance of public order. You are, therefore, a "Bootlegger" as defined under section 2(b) of Andhra Pradesh Prevention of Dangerous Activities of Bootlegger, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offendersand Land Grabbers Act, 1986.

It is imperative to prevent you from acting in any manner prejudicial to maintenance of Public order. I feel that recourse to normal law would involve considerable time and may not be effective deterrent in preventing you from indulging in further activities prejudicial to maintenance of public order in and around Narsampet of Warangal District under Prohibition and Excise Station, Narsampet limits of Warangal District.

On careful consideration of material placed before me, I am satisfied that you are likely to repeatedly indulge in illegal storage and sale of illicitly distilled liquor in and around of Narsampet of Warangal District which is injurious to public health.

The launching of prosecution of cases against you in the above mentioned cases is normal course under Prohibition Laws failed to have any desired impact on your clandestine, bootlegging activities since prosecution proceedings take sufficiently along period of time."

careful reading and understanding of above detention order and the grounds

thereof would show that respondent No.2 has laid emphasis on the fact that mere registration of criminal cases and his arrest in connection therewith is proving ineffective, as after being released on bail the detenu was repeating his illegal activities and thereby the ordinary laws are unable to curb his activities which are causing grave and widespread danger to life and public health.

In our opinion, respondent No.2 merely referred to the bail orders and relied upon the fact of repetition of the illegal activities by the detenu after his release in every case. Thus, this is not a case where respondent No.2 has relied upon the bail orders for detaining the detenu.

10. The learned counsel for the detenu argued with lot of emphasis that some of the bail orders are conditional and therefore the nature of the conditions was very much relevant for respondent No.2 to consider whether they were sufficient to prevent the detenu from fleeing from justice and that nonconsideration of the conditional bail orders has vitiated the detention order. We are afraid, we cannot accept this submission because irrespective of whether the bail orders contained conditions or not, respondent No.2 has arrived at the subjective satisfaction that in spite of his arrest in connection with the criminal cases, the detenu is repeating his activities after being released on

bail. This necessarily means that the detaining authority was not only aware of the fact that the detenu was released on bail in all the cases, but also the fact that the ordinary laws set in motion have proved inefficacious.

Even learned counsel for the detenu has not placed before the Court the bail orders which purportedly contained conditions. In any event, the facts of the case, reveal that irrespective of the alleged conditions of bail, the detenu continued his alleged illegal activities which is manifest from the fact that as many as seven criminal cases were registered against him in succession, clearly showing that the alleged conditions of bail did not deter the detenu from repeating his alleged illegal activities."

iii) We have already adverted to the activities of the respective detenus and the impact of said activities while expressing our disinclination to interfere with the subjective satisfaction recorded by the detaining authority in the above. We are of the considered view, that when the detaining authority was referring to, in the orders of detention in all these writ petitions, that despite arrest of the respective detenus in connection with the criminal cases, they have been repeating or continuing the said activities on being released on bail is sufficient enough to cull out that the detaining authority was not only aware of

the fact that the detenus were released on bail, but also the fact that the ordinary laws set in motion have become ineffective.

iv) We are, therefore, of the considered view, that non-placement of bail orders and bail petitions before the detaining authority and nonsupply of bail orders and the bail petitions to the detenus cannot be construed as fatal, as they do not constitute vital documents in reaching subjective satisfaction by the detaining authority in passing orders of detention. Therefore, with due respects to the submissions of the learned counsel on these aspects and the decisions relied on by them, we are of the opinion, that they would not render any assistance.

EFFECT OF PASSING OF

ORDER

OF DETENTION WHEN DETENU WAS IN JUDICIAL CUSTODY:

15. This ground is raised by the learned counsel for the petitioner in W.P. No.36218 of 2015, placing reliance on the decisions in N. Meera Rani's Case (Supra 22), Dharmendra Suganchand Chelawat's Case (Supra 23), Kamarunnisa's Case (Supra 24), Paul Manickam's Case (Supra 25), Rekha's Case (Supra 16) and the Hon'ble Division Bench of this Court in V. Uma Maheshwari's Case (Supra 26). We have already referred to the decision of

the Hon'ble Supreme Court in Vijaya Kumar's Case (Supra 46) in the above, while referring to the submissions made by the learned Government Pleader. The proposition being, it would suffice if the detaining authority is aware that the detenu is already in Jail and if there are compelling reasons to justify the preventive detention of the detenu in spite of the fact that detenu is already under detention on a charge of criminal offence, and the two essentials that must appear from the grounds of detention. The order of detention and the grounds of detention would satisfy both the requirements as we have even adverted to in the above that subjective satisfaction recorded by the detaining authority does not suffer from nonapplication of mind when kept in view, the report of the Chemical Examiner and the remarks of the Professor of Medicines and Chief Physician of Osmania General Hospital, Hyderabad and the Civil Assistant Surgeon, R.M.O.

of Osmania General Hospital, Hyderabad. Therefore, we find no merit in the said submission.

EFFECT OF NON-MENTIONING OF PERIOD

IN THE ORDER OF DETENTION:

16. In W.P. No.35927 of 2015, the petitioner raised the ground that since detention order does not disclose the period of detention, it is contrary

to the judgment in Cherukuri Mani's Case (Supra 3). We intend to extract what has been observed by the Hon'ble Division Bench of this Court in Mr. Arif Khan's Case (Supra 47) in paragraph Nos.8 to 10, which directly answers the said submission, thus:

"8. The learned Government Pleader contends that the decision reported in CHERKURI MANI's case was considered by this court in WP.No.40066 of 2014 and WP.No.

of along with principles of law laid down by the Apex Court in HARPREET KAUR [MRS] HARVINDER SINGH BEDI V/s. STATE OF MAHARASHTRA AND ANR.

, T.

DEVAKI V/s.

GOVERNMENT OF TAMIL NADU AND ORS and power of detaining authority to pass the detention order beyond three months was considered and by following HARPREETH KAUR's case and T. DEVAKI's case the detention passed on CHERUKURI MANI was rejected.

According to learned Government Pleader, earlier the three Judge Bench which was in T.

Devaki's case and Harpreeth Kaur's case have not been brought to the notice of Apex Court in Cherukuri Mani's case. Therefore, he contends that there is no illegality in the order of detention and prays for dismissing the writ petition.

9. We have heard the learned

counsel for parties and perused the material available on record. The contention of learned counsel for the petitioner is that the order of detention for twelve months at a time is liable to be set aside, having regard to the ratio laid down by the Apex Court in Cherukuri Mani's case. On the other hand, learned Government Pleader places reliance u p o n Harpreet Kaur (MRS) Harvinder Singh Bedi's case and T.Devaki's case together with two unreported decisions of this Court where similar point was considered and held against the detenu.

10. We have perused the principles laid down in Harpreet Kaur (MRS) Harvinder Singh Bedi's case and T.Devaki's case and also the view taken by this Court in W.P.No.40066 of and W.P.No.5168 of 2015.

In our considered view, the first contention raised by the petitioner is without merit and is accordingly, rejected."

Therefore, we find no merit in the said submission. ON DELAY IN DISPOSAL OF REPRESENTATION 17.

The instant ground is urged by the learned counsel for petitioner in W.P.

No.40850 of 2015, contending that, though, the representation was made on 08-10-2015, it was disposed of on 09-11-2015, and the relevant details have been

mentioned meticulously in the affidavit from stage to stage referring to the sequence of events till the date of disposal of the representation.

i) We have already referred to the decisions relied on by the learned counsel in Bunga Samson's Case (Supra 27) and Vasnthu Sumalatha's Case (Supra 21). I n Rajammal v. State of Tamil Nadu and another [49], the consequence of delay in disposal of representation is explained by the Hon'ble Supreme Court in paragraph No.10 thus:

"10. Mr. V.R. Reddy, learned senior counsel for the State of Tamil Nadu referred to a decision of this Court in Mrs. U. Vijayalakshmi v. State of Tamil Nadu and Anr.[ 1995 SCC (Cri) 176 to contend that it could not be said that there was any delay in considering the representation from 9.2.1998 to 14.2.1998. In that case also the detention was under Section 3(1) of the Act. The detenu made representation against the detention which was received by the State Government which conveyed the rejection of the representation on 23.6.1992. The detenu received the rejection order on 26.6.1992. It was submitted that there was an inordinate long delay in dealing with the representation and that the detenu was entitled to have the detention order quashed. This Court noticed that in the counter affidavit filed by the Deputy Secretary to the

State Government the manner in which the representation was dealt with after its receipt on 18.5.1992 had been stated in detail. The Court then observed:

"We have perused the stages through which file containing representation was dealt with promptly and there was no indifference lethargy or negligence in dealing with the same. The file was not unnecessarily held up at any level but moved from level to level promptly. We are, therefore, satisfied that the explanation tendered by the Deputy Secretary in this behalf is acceptable and does not betray any lack of sense or urgency in dealing with representation.

We, therefore, do not see any merit in the first contention."

In the present case, however, there is no explanation forthcoming as to why the representation could not be dealt with by Minister concerned from 9.2.1998 to 14.2.1998."

ii) Concerning the duty of the State Government to consider the representation made by the detenu in the context of legality of detention in the matter of Durga Show and others[50], the Hon'ble Supreme Court held that the petitioners were entitled to receive a consideration of their representation by the State Government as expeditiously as possible, which the Government failed to do so and,

consequently, their continuous detention was held illegal. To the same effect was the decision in Rashid Kapadia v.

Medha Gadgil and others[51], rendered in the context of offences under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

iii) On other hand, learned Government Pleader relied on the decision of the Hon'ble Supreme Court in K.M. Abdulla Kunhi's Case (Supra 18). The relevant observations have been extracted by us in the above. In view of the proposition evolved by the Hon'ble Supreme Court that there is no constitutional mandate under Article 22 (5) to consider the representation before confirming the order of detention, and what really required is that there should be real and proper consideration by Government in passing order of detention and confirmation. The decisions relied on by the learned counsel for the petitioner, in our view, would not render any assistance, to hold that the said delay would vitiate the order of detention.

18. Incidentally, we would like to refer to ancillary ground raised by the petitioners in W.P. No.35927 of 2015 and W.P. No.40662 of 2015.

The submission of the learned counsel for the petitioner in W.P. No.35927 of 2015 is that approval of the detention order was not obtained within twelve days and, therefore, vitiates the order of detention. The material on record would show that the order of detention was passed on 28-09-2015 by Collector and District Magistrate, Ranga Reddy District, and the same was approved by respondent No.1 on 09-10-2015. We do not find any merit in the said submission as the order of detention was passed within twelve days but not beyond, even reckoning the day on which the detention order was passed.

19. The ground urged by the learned counsel for the petitioner in W.P. No.40662 of 2015 has been that no material is placed to show that the detenu has purchased, transported and sold I.D. liquor. We would like to observe that these aspects have to be gone into by the competent Court under Criminal Law, as we are only concerned with the subjective satisfaction recorded by the detaining authority in ordering preventive detention.

Even otherwise, material through the grounds of detention would clearly indicate that the detenu was in possession of I.D. liquor and other articles. We, therefore, find no merit in the said submission.

20. In W.P. No.6560 of 2016, no ground worth-the-name is raised except baldly stating that the detaining authority has passed order of detention in mechanical manner without therebeing any material in reaching subjective satisfaction by the detaining authority. Since we dealt with the said aspect in the above, we find that there is absolutely no ground at all raised in questioning the order of detention passed against the detenu.

21. While summing up, we are of the considered view, that none of the grounds raised by the petitioners in all these writ petitions, merit for setting aside the orders of detention for the reasons explained by us in the above. Thus, we find no merit to accede to the relief sought by the respective petitioners in these writ petitions, as a consequence, we are constrained to dismiss the writ petitions.

22. Accordingly, Writ Petition Nos.32707, 35927, 36218, 39956, 40035, 40662, 40850 of 2015 and Writ Petition No.6560 of 2016 are dismissed. No order as to costs.

As a sequel thereto, Miscellaneous Petitions, if any, pending in these writ petitions, stand closed.

___________________________

G.

CHANDRAIAH, J ___________________________ A. SHANKAR NARAYANA, J April 29, 2016.

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