Telangana High Court
Bhukya Narsamma vs The State Of Telangana on 14 June, 2023
Author: K. Lakshman
Bench: K.Lakshman, P.Sree Sudha
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT JUSTICE P. SREE SUDHA
WRIT PETITION No.5743 of 2023
ORDER:(per Hon'ble Sri Justice K. Lakshman) Heard Sri Rapolu Bhaskar, learned counsel for the petitioner and Sri Mujeeb Kumar Sadashivuni, learned Special Government Pleader representing learned Additional Advocate General , appearing for respondents.
2. This writ petition is filed by the petitioner, who is mother of the detenu i.e., Bhukya Bixapathi, S/o. Pulya, challenging the Preventive Detention order vide Rc.No.C1/311/2023, dated 16-02-2023 issued by respondent No.2 confirmed by G.O.Rt.No.499, dated 01.04.2023.
3. Perusal of the record would reveal that the detenu has involved in 6 cases. The offences alleged against him are punishable under Sections 7(A) r/w 8(e) of A.P. Prohibition Act, 1995. The allegations against the detenu herein are that he has transported illicit liquor i.e., 20 liters, 10 liters, 5 liters, 61 liters, 5 liters and 18 liters and ID liquor respectively and raw material i.e., Alum, Jagerry etc. 2
4. Since the punishment prescribed for the aforesaid offences is seven years or below seven years, the Investigating Officer has invoked the procedure aid down under Section 41-A of Cr.P.C.
5. It is relevant to note that last crime i.e. Cr.No.229 of 2022 was registered on 19.11.2022. The impugned detention order was passed on 16.02.2023. In the said order, it is not mentioned that the detenu was involved in the similar offences.
6. In the impugned detention order, it is specifically mentioned that the detenu is the habitual offender in the clandestine business of Possessing, Manufacturing, Transporting and Sale of Illicitly Distilled Liquor. Despite executing a bond for Rs.2,00,000/- and paying penalty of Rs.1,50,000/- on 25.04.2022, there is no change in the detenu in committing similar offences. Therefore, according to the respondent No. 2, he has passed impugned detention order dated 16.02.2023, to prevent the detenu in committing similar offences. There is no error in it.
7. Section 2(b) of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-offenders, Goondas, Immoral Traffic Offenders, Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertilizer Offenders, Food Adulteration 3 Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986 (For short, 'the Act') deals with definition of bootlegger which is extracted below:-
2. In this Act, unless the context otherwise requires,-
(a) ...............
(b) "boot-legger" means a person, who distils, manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxicant drug or other intoxicant in contravention of any of the provisions of the Telangana Excise Act, 1968 and the rules, notifications and orders made thereunder, or in contravention of any other law for the time being in force, or who knowingly expends or applies any money or supplies any animal, vehicle, vessel or other conveyance or any receptacle or any other material whatsoever in furtherance or support of the doing of any of the above mentioned things by himself or through any other person, or who abets in any other manner the doing of any such thing;
8. As discussed supra, the punishment prescribed for the aforesaid offences alleged against the detenu is 7 years or below 7 years and therefore, the Investigating Officers have already invoked the procedure laid down under Section 41-A Cr.P.C. by serving 4 notices. However, they have not invoked Section 41-A(4) of Cr.P.C. They have not initiated steps under Section 41-A (4) Cr.P.C.
9. Perusal of the record would reveal that Investigating Officers have not completed investigation in the aforesaid six crimes. According to the learned Special Government Pleader, FSL Reports are awaited. The offences alleged against the detenu are under A.P. Prohibition Act, 1995 procedure laid down under the said statute to prosecute the offenders and to punish the, this Court and Hon'ble Apex Court, time again categorically held that provisions of the Act, 1986 have to be invoked in the rarest of the rare cases in preventing a person from continuing the similar offences that too prevent the disturbances to the public order, but not law and order. In the present case, respondent authorities failed to do so.
10. In Ram Manohar Lohia vs. State of Bihar1 Hon'ble Apex Court held as under:
"Does the expression "public order" take in every kind of disorder or only some ? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of 1 (1966) 1 SCR 709 5 the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder, They can' be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other example can be imagined.
The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large.
A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(l)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.
65. It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order".
One has to imagine three concentric circles. Law and order represents the largest circle within which is the 6 next circle representing public order and the smallest circle represents security of State.It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State."
11. In Ashok Kumar vs. Delhi Administration 2, the Apex Court held that preventive detention is devised to afford protection to society. The object is to punish a man for having done something but to intercept before he does it to prevent him from doing.
12. As discussed supra, in the present case, all the crimes were registered against the detenu for the offences punishable under the provisions of the exercise Act, Special Law. There is no disturbance to the public order to invoke procedure laid down under the Act, 1986. There is no consideration of the said aspects by both the respondent No.2 and respondent No.1 in detention order and confirmation order.
13. Therefore, the detention order dated 16.02.2023 passed by 2nd respondent confirmed by the 1st respondent vide G.O.Rt.No.499 dated 01.04.2023 are set aside. Respondents are directed to set free the detenu i.e., Bhukya Bixapathi S/o. Puliya, if he is not required in any other criminal case.
2 (1982) 2 SCC 403 7
14. Accordingly, this writ petition is allowed. There shall be no order as to costs.
As a sequel, the miscellaneous petitions, if any, pending in the Writ Petition shall stand closed.
______________________ K. LAKSHMAN, J _______________________ P. SREE SUDHA, J June 14th, 2023 GV/PN Note: Furnish C.C. in two days.
B/o.GV/PN 8 HON'BLE SRI JUSTICE K. LAKSHMAN AND HON'BLE SMT JUSTICE P. SREE SUDHA WRIT PETITION No.5743 of 2023 (per Hon'ble Sri Justice K. Lakshman) June 14, 2023 Note: Furnish C.C. in two days.
B/o.GV/PN 9