The detaining authority must have a subjective satisfaction based on material available on record, and the order of detention cannot be based on mere apprehension. The detaining authority must also consider the factors laid down in Kamarunnisa v. Union of India, (1991) 1 SCC 128, while passing the detention order.

JUDGMENT

(Per Ninala Jayasurya, J)

Aggrieved by the order of detention in Ref.C1/1/M/2021 dated 05.02.2021 passed by the 3rd respondent (hereinafter referred to as ‘the detaining authority’) as confirmed by the 1st respondent vide G.O.Rt.No.293, General Administration (SC.I) Department, dated 16.02.2021, the petitioner filed the present writ petition seeking to order the release of her husband i.e., Banavathu Srinu, S/o late Gopiya (hereinafter referred to as ‘the detenu’) by declaring the said order as approved by the 1st respondent as arbitrary, illegal and violative of Article 21 of Constitution of India.

2. The detaining authority passed the order of detention, in exercise of powers conferred under Section 3(1) r/w 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 as ‘the Act’), stating inter alia that the activities of the detenu are inexcusable and he shall be treated as Bootlegger under Section 2(b) of the said Act.

3. The said order was passed inter alia on the premise that the detenu is indulging in manufacture, possession, transportation of illicit liquor, that previously he was arrested and enlarged on bail and again caught while committing the same offence. The detaining authority while mentioning that the detenu was presently lodged in Sub-jail, Nuzividu, further opined that there is every possibility of the detenu being enlarged on bail again and continue the criminal activities which are deleterious and detrimental to the public health and public order.

4. Heard Mr. M.P.V.N.V.Sastry, learned Counsel appearing for the petitioner and Mr. Syed Khader Mastan, learned Government Pleader attached to the Office of the learned Additional Advocate General appearing for the respondents.

5. Mr. M.P.V.N.V.Sastry, learned Counsel, inter alia contends that the order of detention was passed by the detaining authority without application of mind. He submits that the detaining authority without there being any material or consideration of the same, came to a conclusion that there is every possibility of the detenu being released on bail and therefore the order of detention is unsustainable. He submits that the bail applications, bail orders and charge sheets etc., were not furnished to the detenu to make an effective representation and therefore the order of detention is vitiated. He further submits that the bail application, bail orders etc., are required to be considered by the detaining authority and in the absence of the same, the detention order is not sustainable. He submits that there are no overt acts against the detenu and at any rate, there is no material to show that his alleged activities are prejudicial to public health or public order. He submits that the detaining authority had passed the order of detention on mere apprehension without any material to believe that the detenu will again indulge in the alleged activities. Accordingly, he seeks the relief as prayed for.

6. In support of his contentions, the learned counsel for the petitioner places reliance on a judgment of the Hon’ble Supreme Court in Rekha V. State of Tamilnadu, (2011) 5 SCC 244 and a Division Bench of the erstwhile High Court of Andhra Pradesh in Lalitha V. State of Andhra Pradesh, 2007(3) ALT 693.

7. Opposing the said contentions, Sri Syed Khader Mastan, learned Government Pleader, while submitting that the detenu is a habitual offender, contends that the order of detaining authority is based on subjective satisfaction and warrants no interference by this Court. He submits that the detaining authority, after examining the material on record and on consideration of the relevant factors passed the order of detention in larger public interest as the lives of the people are at risk due to illegal activities of the detenu. He further submits that no case is made out for release of the detenu and therefore seeks d