IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRTEENTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE D.S.R.VARMA and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION No. 11319 of 2009 Between: Kamireddy Simhadeshwar Rao, S/o. Apparao, R/o. 18th Ward, Near Girls High School Center, Satya Tent House, Tuni, East Godavari District. ..... PETITIONER AND 1 The Collector & District Magistrate, Visakhapatnam District. 2 The Chief Secretary, Government of Andhra Pradesh, Hyderabad. 3 The Superintendent, Central Jail, Cherlapally, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a Writ of Habeas Corpus Under Article 226 of the Constitution of India directing the respondents to produce Sri Tirumalanedi Narsimha Murthy @ Tent House Hujji, Now detained in Central Prison, Cherlapally, before this Hon'ble Court and he may be ordered to be released forthwith after declaring that his detention is illegal and void. Counsel for the Petitioner:MR.C.PRAVEEN KUMAR Counsel for the Respondent No.: THE ADVOCATE GENERAL The Court made the following : THE HON'BLE SRI JUSTICE D.S.R.VARMA and THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION No.11319 of 2009 ORAL ORDER : (per the Hon’ble Sri Justice D.S.R.Varma) Heard Sri C. Praveen Kumar, appearing for the petitioner as well as the learned Assistant Government Pleader, representing the learned Advocate General, appearing for the respondents. 2. The present Writ of Habeas Corpus is filed by the petitioner seeking production of his brother-in-law viz., Sri Tirumalanedi Narsimha Murthy @ Tent House Bujji, s/o. (late) Appa Rao, aged 38 years, c/o. Kapu, resident of Chekkala Mill Street, Ambajipeta, Tuni, East Godavari District, who is detained in Central Prison, Cherlapalli, Ranga Reddy District, pursuant to the detention order passed by the 1st respondent in proceedings Rc.No.66/2009/A2, dated 30-03-2009, before this Court and to release him, forthwith. 3. The facts, in brief, are as under: The brother-in-law of the petitioner was allegedly involved in trafficking of illicit liquor in and around Payakaraopeta village and Mandal, Visakhapatnam District. Taking into account of his frequent involvement in the said activity, the competent authority i.e., the Collector and District Magistrate, Visakhapatnam District, the first respondent herein, exercising the jurisdiction conferred under Section 3 (1) and (2) read with Section 2 (A) and (B) of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas and Immoral Traffic Offenders and Land Grabbers Act, 1986 (for brevity “the Act”), passed an order, dated 30-03-2009, in proceedings Rc.No.66/2009/A2, for the detention of the brother-in-law of the petitioner and the same was forwarded to the Government for approval. The Advisory Board constituted under Section 9 of the Act, reviewed the case of the alleged detenu on 04-05-2009 and eventually the Government had passed the final order vide G.O.Rt.No.2371, General Administration (Law & Order.II) Department, dated 15-05-2009, confirming the order passed by the competent authority, and as a result of which the alleged detenu was directed to be detained for a period of 12 (twelve) months from the date of his detention i.e., 30-03-2009. Aggrieved by the same, the petitioner has filed the present writ petition seeking production of the alleged detenu and to release him, forthwith. 4. It is the contention of the learned counsel appearing for the petitioner that the competent authority had set out five instances for passing the order of detention and out of which, in one instance, the order of detention was passed without looking into the chemical analysis report and in some other instances the order of detention was passed without even sending the samples for chemical analysis report and, as such, the order of detention was passed without application of mind. Therefore, he prays to release the alleged detenu after setting aside the order of detention passed by the first respondent and all other consequential orders passed against the alleged detenu. 5. Admittedly, the competent authority i.e., the Collector and District Magistrate, Visakhapatnam District, had relied upon five instances in which the alleged detenu is shown as an accused, namely (1) Crime No.154/2008- 09, dated 5-8-2008; (2) Crime No.192/2008-09, dated 30-8-2008; (3) Crime No.292/2008-09, dated 19-10-2008; (4) Crime No.480/2008-09, dated 30-1- 2009; and (5) Crime No.601/2008-09, dated 28-3-2009 for passing the order of detention. In all the above instances, leaving apart the details, the fact remains is that the alleged detenu had allegedly involved in Excise offences and in order to prevent him from perpetrating in further offences, the detention order, dated 30-03-2009 had been passed by the first respondent. 6. As already stated above, the offences involved in each instance are more or less similar in nature. But, the significant factor to be noticed is that in all the above instances, the samples were drawn in order to send the same to Forensic Laboratory for chemical analysis to ascertain the opinion of the Expert as to whether the substance so extracted was fit for human consumption or injurious to health? 7. This subject is a beaten track. No doubt, the law is well settled that as and when the competent authority under the Act is fully satisfied that the acts allegedly committed by any person are prejudicial or injurious to the public order, an order of detention can be passed. Of course, such power shall be exercised based on certain norms by following the statutory provisions and the set principles as enunciated by the apex Court and by various High Courts, including our High Court. 8. Now, the main contention of the learned counsel appearing for the petitioner is that so far as the offence in item No.1 i.e., Crime No.154 of 2008- 09, dated 5.8.2008 is concerned, though the opinion of the chemical analyst had been obtained, the same was not furnished either to the detaining authority to consider the real facts or to the alleged detenu to enable him to make effective representation as contemplated under Article 22 (5) of the Constitution of India. 9. Here, again the law is well settled that if no opportunity had been provided to the alleged detenu in order to make effective representation to defend himself and extricate himself from the clutches of the alleged offence, such offence would only amount to an offence simplicitor under the Andhra Pradesh Excise Act, 1968 but does not attract the provisions of the Act. 10. Therefore, so far as the offence under item No.1 is concerned, we are to hold that the first respondent cannot rely on the said incident, inasmuch as there was no opportunity to the first respondent to apply his mind or to the alleged detenu to make effective representation. Therefore, the offence committed in incident No.1 cannot be held to be a valid ground to pass the order of detention. 11. Nextly, so far as incident Nos.4 and 5 i.e., Crime No.480 of 2008- 09, dated 30-01-2009 and Crime No.601 of 2008-09, dated 28-3-2009 are concerned, it is an undisputed fact that though the samples were drawn, they were not at all sent for chemical analysis report. Hence, there is no scope for the competent authority to get the opinion of the Expert as regards its fitness for human consumption or its injurious nature. Therefore, when no opinion was sought from the chemical analyst, the question of appreciation by the competent authority does not arise. Again, in these cases, we have to necessarily point out that the competent authority without any basis made these two instances as valid grounds for passing the order of detention, let alone the non-supply of material to the alleged detenu. 12. The net result is, out of five instances relied on by the competent authority for passing the order of detention, the above three instances are totally baseless and the remaining two instances though appear to be properly based, the same do not lend any support to pass the order of detention for the reason that the same is admixture of non-application of mind by the competent authority and also non-supply of relevant material to the competent authority and the alleged detenu as well. 13. Therefore, out of the five instances, since the above three instances are suffering from grave infirmities; the remaining two instances cannot make the order of detention a valid one and passed in accordance with law. In fact, we have to look at the order of detention as a whole and there must be total application of mind while passing the order of detention. Partial satisfaction of the law or norms does not cure the major and vital defects and make an invalid order as a valid one. Therefore, the orders of detention passed against the alleged detenu are liable to be set aside. 14. In the result, the writ petition is allowed, at the stage of admission, setting aside the detention order, dated 30-03-2009, in proceedings Rc.No.66/2009/A2, passed by the Collector and District Magistrate, Visakhapatnam, and all other consequential proceedings passed against the alleged detenu, viz., Sri Tirumalanedi Narsimha Murthy @ Tent House Bujji, s/o. (late) Appa Rao, aged 38 years, c/o. Kapu, resident of Chekkala Mill Street, Ambajipeta, Tuni, East Godavari District, under Section 3 (1) and (2) read with Section 2 (A) and (B) of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas and Immoral Traffic Offenders and Land Grabbers Act, 1986, and the alleged detenu shall be released, forthwith, if not required in any other case. However, there shall be no order as to costs. ________________________ JUSTICE D.S.R.VARMA ___________________________________ JUSTICE B.SESHASAYANA REDDY 13-07-2009. Msr. THE HON'BLE SRI JUSTICE D.S.R.VARMA and THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION No.11319 of 2009 13-07-2009 (Msr)