IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FIFTEENTH 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.10135 of 2008 Between: Gandam Srinivas Goud, s/o. Rama Goud, R/o. Sunket (Village), Morthad Mandal, Nizamabad District. ...PETITIONER AND 1 The Govt. of A.P. Rep by its Chief Secretary to Government, (I/C) General Administration (Law and Order.II) Department, Secretariat, Hyderabad. 2 The District Collector-cum-Magistrate, Nizamabad District, Nizamabad. ...RESPONDENTS 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 No. E1/71/2008 dt. 14-3-2008 and GO Rt. No. 2329 General Administration (Law & Order-II) Department, dt. 18-4-2008 as illegal and invalid and release the petitioner from detention. 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.10135 of 2008 ORAL ORDER: (per T HE HON’BLE MR. JUST ICE D.S.R.VARMA) Heard the learned counsel for the petitioner as well as the learned Assistant Government Pleader, representing the learned Advocate General, appearing for the respondents. 2. This writ petition is ﬁled seeking to issue an appropriate order or direction more particularly one in the nature of writ of Habeas Corpus declaring the action of the respondents in issuing the proceedings No.E1/71/2008, dated 14.3.2008, and G.O.Rt.No.2329 General Administration (Law & Order.II) Department, dated 18.4.2008, as illegal and invalid and release the petitioner from detention. 3. By the impugned order, dated 14.3.2008 the Collector and District Magistrate, Nizamabad District, ordered detention of the petitioner, under Sections 3 (1) and 3 (2) read with section 2 (a) & 2 (b) of the A.P. Prevention of Dangerous Activities of Bootleggers, Dacoits, drug Oﬀenders, Goondas, Immoral Traﬃc Oﬀenders and Land Grabbers Act, 1986. The said order was approved by the Government and the Advisory Board, which fact is not in dispute. 4. It has to be seen that as many as four instances were cited by the Collector and District Magistrate for passing the impugned order. All those instances relate to the oﬀences, pertaining to the possession of Chloral Hydrate, by the petitioner. Those oﬀences were said to have been found on 23.7.2007, 10.10.2007, 3.01.2008 and 3.01.2008. 5. It appears, the petitioner was in possession of some sizeable quantity and transporting the same from one place to the other. The eventual reasons for passing the impugned order of detention are; Firstly; the petitioner has been transporting Chloral Hydrate and also as could be seen from the preamble of the order, he was transporting Diazepam also, Secondly; in view of the cases pending, particularly in view of the fact that the petitioner is in judicial remand and, inasmuch as, it was very diﬃcult to secure the presence of the petitioner in the event of his enlargement on bail and to eﬀect further arrest in the cases where he was involved, and Thirdly; the oﬀences in which the petitioner was involved are bailable and there is every possibility of he being released on bail. 6. In this background, the learned counsel for the petitioner contends that the impugned order has been passed with total non-application of mind and that the detaining authority has to consider the whole situation and incorporate all the material facts on record, in fact, is possible only in the event of proper application of mind. 7. On the other hand, the learned Assistant Government Pleader, representing the learned Advocate General, submits that since all the grounds for detention have been elaborately discussed, minor things have to be ignored and the satisfaction of the detaining authority alone has to be taken into consideration and the said power had been exercised by the detaining authority on appropriate lines. 8. In this context, so far as the ﬁrst contention of the learned counsel for the petitioner is concerned, it has to be seen from the record that though in the preamble it was alleged that the petitioner was transporting both Chloral Hydrate and Diazepam, there is no reference of Diazepam at all in the oﬀences referred to. 9. The only ground, in the said oﬀences, was that the petitioner was in possession of Chloral Hydrate only. The eventual conclusions are contrary to the very foundation of the case, which was mentioned in the preamble of the impugned order. From this discrepancy, it is obvious that there is no proper application of mind and it denotes that the detaining authority, in a routine manner, made a mention of Diazepam also as having been found in possession of the petitioner. 10. Apropos the second contention of the learned counsel for the petitioner, it has to be seen that the petitioner was in judicial custody and there is every possibility of he being released on bail. It has to be seen that only in cases of ﬁrst and second instances, referred to in the impugned order, it was mentioned that the petitioner was released on bail and whereas, in cases of third and fourth instances, there is no reference of the petitioner being in judicial custody at all. In fact, even the question of the petitioner being released on bail does not arise at all, at least, there ought to have been a reference for many instances also. But, there must have been a mention with reference to judicial custody of the petitioner. 11. A perusal of the impugned order, passed by the Collector and District Magistrate, would reveal that there is no such reference at all and actually from a combined reading of all the grounds made out by the detaining authority, it appears, the petitioner has been moving freely on bail, in the ﬁrst and second instances, referred to, in the impugned order. This is another vagueness, which may also amount to irrational ground for passing the impugned order. In other words, the judicial custody and the possibility of the petitioner being released on bail is vague, particularly when there is no such reference, as already pointed out by us. 12. Thirdly, as could be seen from Section 34 of the A.P. Excise Act, 1968 (“the Act” for brevity), the competent Court has to necessarily look into the quantity that was allegedly found in possession of a person, involved in transporting the prohibited contraband beyond the permissible quantity, if it is on commercial lines, as prescribed under the notiﬁcation. The transportation of such quantity would amount to a non-bailable offence and vice versa. 13. Therefore, when there is no clear distinction made out in any of the grounds mentioned in the impugned order, as regards the permissible quantity of the contraband that was found to be in the custody of the petitioner, likelihood of such oﬀence being bailable or non-bailable cannot be decided but, unfortunately, the detaining authority is obviously under the assumption that all the instances would be brought under the cover of bailable oﬀences and therefore, it is imperative to pass the order of detention. This is also a vague ground. 14. Therefore, from the above, we are of the view that the detaining authority has made out some instances, which suﬀer from vagueness and non- application of mind and the same are to be ignored. Consequently, the impugned proceedings, dated 14.3.2008, passed by the Collector and District Magistrate, Nizamabad District, are liable to be set aside. 15. In the result, the Writ Petition is allowed. The impugned proceedings No.E1/71/2008, dated 14.3.2008, and G.O.Rt.No.2329 General Administration (Law & Order.II) Department, dated 18.4.2008, are set aside. The detenue, namely Gandam Srinivas Goud, S/o.Rama Goud, 30 years, R/o.Sunket (Village), Morthad Mandal, Nizamabad District, shall be released forthwith, if not required in any other case. _____________________ JUSTICE D.S.R.VARMA _____________________ JUSTICE K.C.BHANU 15TH JULY 2008 RRB