IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SEVENTH DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE D.S.R.VARMA and THE HON'BLE MR JUSTICE K.C. BHANU WRIT PETITION No. 9465 of 2008 Between: Akula Srinivas Goud, s/o. Rama Goud, R/o. Gudem (Village), Kamareddi Mandl, Nizamabad District. ..... PETITIONER AND 1 The State of Andhra Pradesh, Rep by the Chief Secretary to Government (I/C), General Administration (Law & Order.II) Department, Secretariat, Hyderabad. 2 The District Collector-cum-Magistrate, Nizamabad District, Nizamabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ, order or direction, more particularly one in the nature of Writ of Habeas Corpus declaring the action of the respondents in proceedings Rc.No. E/334/2007, dated 12-2-2008 and GO Rt. No. 1847 General Admn. (Law & Order II Dept., Dated 25-3-2008 as illegal and invalid and release the petitioner from detention and pass Counsel for the Petitioner : MR.M.ACHUTA REDDY Counsel for the Respondents : THE ADVOCATE GENERAL The Court made the following : THE HON'BLE MR JUSTICE D.S.R.VARMA and THE HON'BLE MR JUSTICE K.C. BHANU WRIT PETITION No.9465 of 2008 ORAL ORDER : (per the Hon’ble Sri Justice D.S.R.Varma) Heard learned counsel appearing for the petitioner as well as learned Assistant Government Pleader, representing learned Advocate General, appearing for the respondents. 2. The present Writ of Habeas Corpus is filed by the petitioner seeking to declare the action of the respondents in proceedings Rc.No.E/334/2007, dated 12-02-2008, and G.O.Rt.No.1847, General Admn. (Law & Order II) Department, dated 25-03-2008, as illegal and invalid and release the petitioner from detention, forthwith. 3. The petitioner was allegedly involved in trafficking of illicit liquor in and around Nizamabad District. Taking into account of his frequent involvement in the said activity, the competent authority i.e., the Collector- cum-District Magistrate, Nizamabad District, the second respondent herein, exercising the jurisdiction conferred under Section 3 (1) and 3 (2) 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”), initially passed the order, dated 12-02-2008, in proceedings Rc.No.E1/334/2007, for detention of the petitioner. Consequently, the petitioner was taken into custody on 15- 02-2008 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 petitioner on 18-03-2008 and eventually the Government had passed the final order vide G.O.Rt.No.1847, General Administration (Law & Order.II) Department, dated 25-03-2008, confirming the order passed by the competent authority, and as a result of which the petitioner was directed to be detained for a period of 12 (twelve) months from the date of his detention i.e., 15-02-2008. Aggrieved by the same, the petitioner has filed the present writ petition declaring the impugned orders as illegal and to release him forthwith. 4. It has now been pointed out by learned counsel appearing for the petitioner that the petitioner has been in judicial custody in connection with some other case as on the date of passing of the impugned order. But, that fact has not been brought to the notice of the competent authority, nor there was any occasion for the competent authority to incorporate the said fact in the impugned order. 5. The law is well settled that in all cases, necessarily the factum of the person being in judicial custody as on the date of passing of the order of detention against him need not necessarily be informed to the competent authority, nor it be incorporated in the order of detention. The competent authority can pass the order of detention against a person, in spite of the fact that the said person is in judicial custody, provided the competent authority is satisfied that if the person in judicial custody is being released, there is every possibility or likelihood of his repeating the same kind of offence or offences. 6. It implies that merely because a person is in judicial custody as on the date of passing of the order of detention, the competent authority cannot pass any order of detention, like the present one and the same is subject to the conditions that (a) the fact of the said person being in judicial custody shall be placed before the competent authority; (b) the said fact shall be referred to by the competent authority in the order of detention; and (c) the competent authority shall indicate in clear terms about its satisfaction that the person in judicial custody, in all probability, may commit the same kind of offence or offences in future also. Therefore, it is rather subject to the satisfaction of the competent authority about the possibility of the offence being perpetrated by the detenu in future also. 7. The above view is supported by the judgment rendered by the apex Court in ABDUL SATHAR IBRAHIM MANIK vs. UNION OF INDIA[1]. 8. In the instant case, it is an admitted fact that the factum of the petitioner being in judicial custody as on the date of passing of the impugned order was not at all brought to the notice of the competent authority and, as such, there was no occasion for the competent authority to record the said fact in the order of detention. 9. In view of the above, we are of the opinion that the above lapse pointed out on the part of the competent authority would vitiate the proceedings, which are being impugned herein, and hence the orders of detention passed against the petitioner are liable to the set aside. 10. In the result, the writ petition is allowed, at the stage of admission, setting aside the proceedings Rc.No.E1/334/2007, dated 12- 02-2008, and G.O.Rt.No.1847, General Administration (Law and Order-II) Department, dated 25-03-2008, and all other consequential proceedings passed against the petitioner viz., Sri Akula Srinivas Goud, s/o. Rama Goud, aged about 29 years, resident of Gudem Village, Kamareddy Mandal, Nizamabad District, and the petitioner shall be released forthwith, if not required in any other case. However, there shall be no order as to costs. 11. It is needless to clarify that this order does not preclude the competent authority to pass appropriate orders, strictly in accordance with law. _______________________ JUSTICE D.S.R.VARMA _______________________ JUSTICE K.C.BHANU 07-07-2008. Msr. ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Chief Secretary to Government (I/C), General Administration (Law & Order.II) Department, Government of Andhra Pradesh, Secretariat, Hyderabad. 2 The District Collector-cum-Magistrate, Nizamabad District, Nizamabad. 3. Two CCs to Advocate General, Government of Andhra Pradesh, High Court Buildings, Hyderabad. 4. Two C.D. copies. THE HON'BLE MR JUSTICE D.S.R.VARMA and THE HON'BLE MR JUSTICE K.C. BHANU WRIT PETITION No.9465 of 2008 07-07-2008 (Msr) [1] (1992) 1 SCC 1