Telangana High Court
Banothu Jagan vs The State Of Telangana on 15 March, 2021
Author: Shameem Akther
Bench: A.Rajasheker Reddy, Shameem Akther
THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
AND
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
WRIT PETITION No.19054 of 2020
ORDER:(Per the Hon'ble Dr. Justice Shameem Akther) Sri Banothu Jagan, the petitioner, has filed this Habeas Corpus petition on behalf of his brother-in-law, Nunavath Sudhakar, S/o. Mancha, aged about 27 years, the detenu, challenging the detention order, vide 45/PD-
CELL/CCRB/RCKD/2020, dated 30.09.2020, passed by the Commissioner of Police, Rachakonda Police Commissionerate, the respondent No.3, wherein, the detenu was detained under Section 3(2) 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 Offenders, Fake Document offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders & White Collar or Financial Offenders Act, 1986 (for short "P.D. Act").
2. We have heard the submissions of Sri. V.Raghunath, learned counsel, appearing on behalf of Dr.B.Karthik Navayan, learned counsel for the petitioner, Sri G.Malla Reddy, learned Assistant Government Pleader for Home appearing on behalf of Additional Advocate General for the respondents and perused the record.
3. The learned counsel for the petitioner has vehemently contended that the impugned detention order is illegal, arbitrary, ARR, J & Dr. SAJ 2 W.P.No.19054 of 2020 unconstitutional, improper, against the principles of natural justice and has been passed in a mechanical manner and without application of mind. The detenu is falsely implicated in the solitary case relied upon by the detaining authority for preventively detaining him and also in the case referred to as his antecedent criminal history. Though the detenu was granted bail by a learned single Judge of this Court in the solitary case relied by the detaining authority for preventively detaining him and also in the case which was referred to as his antecedent criminal history, but, the detenu is still detained in the prison by invoking the draconian preventive detention laws. The detenu is a AR Police Constable and if is not released from prison, his entire career in the police department would be ruined. There is absolutely no material on record to connect the detenu with the alleged offence. The detaining authority did not assign any reason for coming to a conclusion that the activities of the detenu are affecting the public order. Further, the case alleged against the detenu does not add up to "disturbing the public order". It is confined within the ambit and scope of the word "law and order". Since the offence alleged is under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act'), the detenu can certainly be tried and convicted under the said special law. Thus, there was no need for the detaining authority to invoke the draconian preventive detention laws. Hence, the impugned detention order tantamounts to colourable exercise of power. The detaining authority has to be extremely careful while passing the detention order, since the detention ipso facto adversely affects the fundamental right of personal liberty enjoyed by the people under Article 21 of the ARR, J & Dr. SAJ 3 W.P.No.19054 of 2020 Constitution of India. Thus, the detention order is legally unsustainable and ultimately, prayed to set aside the same and allow the writ petition as prayed for.
4. On the other hand, Sri G.Malla Reddy, learned Assistant Government Pleader for Home would contend that the detenu is a 'drug offender'. He, along with his associates, have been indulging in illegal and highly dangerous activities of peddling 'Ganja', a narcotic substance, in an organized manner among the innocent people in the limits of Rachakonda and Hyderabad Police Commissionerates, duly endangering the lives of youth and innocent people, causing irreparable damage to their body organs including Central Nervous System and thereby, crippling the health of those who are addicted to drugs. The unlawful activities of the detenu were causing widespread danger to the public health and were detrimental to the public order. The crime allegedly committed by the detenu was sufficient to affect the even tempo of the society and create a feeling of insecurity in the minds of the people at large. Further, the detenu was caught red-handed along with his associates while transporting the contraband. Hence, it cannot be said that there is no evidence to link the detenu with the alleged offence. Substantial quantity of 'Ganja' was seized from the possession of the detenu and his associates. The effect of consuming 'Ganja' is fatal to any person. All the mandatory provisions and the safeguards envisaged under the Constitution of India were strictly followed while passing the impugned detention order and hence, the impugned detention order does not suffer from illegality or impropriety. Despite registering a case against ARR, J & Dr. SAJ 4 W.P.No.19054 of 2020 the detenu for peddling of narcotic drugs (which was referred to as his antecedent criminal history) and placing him under suspension from police department, he did not mend his attitude and continued to commit similar offence. With a view to prevent the detenu from further indulging in such dangerous activities in the interest of the society, the impugned detention order was passed. Further, the Advisory Board, in its review meeting, upon hearing the detenu and the concerned investigating officials and upon considering the entire material placed before it, rendered its opinion that there is sufficient cause for detention of the detenu. On considering the opinion of the Advisory Board and upon considering the entire material, the Government confirmed the impugned detention order, vide G.O.Rt.No.1862, General Administration (Spl. (Law & Order) Department, dated 28.11.2020. Therefore, the detaining authority was legally justified in passing the impugned detention order and ultimately, prayed to dismiss the writ petition.
5. In view of the submissions made by both sides, the point that arises for determination in this Writ Petition is:
"Whether the impugned detention order, dated 30.09.2020, passed by the Commissioner of Police, Rachakonda Police Commissionerate, respondent No.3, and the confirmation order, dated 28.11.2020, passed by the Principal Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana, are liable to be set aside?"
ARR, J & Dr. SAJ 5 W.P.No.19054 of 2020
6. POINT: Briefly, the facts of the case are that by relying on a solitary case registered against the detenu in Crime Nos.172/2020 of Abdullapurmet Police station, within the limits of Rachakonda Police Commissionerate, the respondent No.3-Commissioner of Police, Rachakonda Police Commissionerate, passed the detention order, dated 30.09.2020. According to the respondent No.3, the detenu is a 'drug offender'. He, along with his associates, has been indulging in illegal and highly dangerous activities of peddling 'Ganja', a narcotic substance, in an organized manner among the innocent people in the limits of Rachakonda and Hyderabad Commissionerates, duly endangering the lives of youth and innocent people and acting in a manner prejudicial to the maintenance of public order and health as well. The detenu is a potential threat to the maintenance of public order in general and public health in particular. In the solitary case relied upon by the detaining authority, the detenu got bail from the Court concerned. In order to prevent the detenu from indulging in similar illegal activities, which are detrimental to the public order, the impugned detention order, dated 30.09.2020, was passed, which was confirmed by the Government by order, dated 28.11.2020.
7. The material placed on record reveals that the detenu- Nunavath Sudhakar, S/o. Mancha, aged about 27 years, is a 'drug offender'. He, along with associates, formed into a gang and started clandestine business of peddling 'Ganja' in the limits of Rachakonda and Hyderabad Police Commissionerates and have been endangering the lives of youth and innocent people causing ARR, J & Dr. SAJ 6 W.P.No.19054 of 2020 irreparable damage to the health of the people at large. His illegal activities have caused widespread danger to the public health. The detaining authority relied on a solitary case for preventively detaining the detenu. We shall present it in a tabular column, the date of occurrence, the date of registration of FIR, the offences complained of and its nature, such as bailable/non-bailable or cognizable/non-cognizable.
Date of Date of Crime No. Occurrence registration Offences Nature of FIR 172/2020 of Section 20(B)(II) Cognizable/ Abdullapurmet 26.06.2020 26.06.2020 of NDPS Act Non Bailable Police Station
8. The material placed on record reveals that the detenu is a AR Police Constable recruited in the year 2013. In greed of money and to make easy buck in a short period, the detenu, along with his associates, formed into a gang and started clandestine business of peddling 'ganja' from Darakonda area of Visakhapatnam to Hyderabad and other states in the country. Earlier, in September, 2019, he was found involved in illegal transportation of 'Ganja' and a Crime No.378/2019 was registered against him and his associates, which was referred to by the detaining authority as his antecedent criminal history. In the said case, he initially absconded and later, his arrest was regularized through P.T. Warrant on 23.07.2020 after his arrest in connection with Crime No.172/2020, which was relied upon by the detaining authority for detaining the detenu. Subsequent to registration of crime against the detenu, he was placed under suspension from the police department. Even then, he did not mend his attitude and he and his associates were again caught red-handed transporting a huge ARR, J & Dr. SAJ 7 W.P.No.19054 of 2020 quantity of 81 kilograms of Ganja and the subject case in Crime No.172/2020 was registered against him and his associates. The detenu and his associates confessed with regard to transportation of 'Ganja' to Hyderabad for further transporting the same to Rajasthan State through their agents. This shows that inspite of registering a crime on an earlier occasion and placing him under suspension from police department, the detenu continued his illegal activities. Huge quantity of contraband (81 Kgs) was seized from the detenu and his associates. Further, the material placed on record would reveal that the detenu committed the alleged offences in quick succession. Here it is apt to state that a public servant is not entitled to indulge in criminal activities. General populace expects a police personnel to protect citizens from criminals and crime. Any illegal activity by a police personnel of whatever rank he/she may be, is likely to lower down the image of the department in the eyes of general public and would destroy the faith and regard of the people in a disciplined force like Police. In the instant case, the involvement of the detenu in the alleged shameful and reprehensible activities is unwarranted. The detaining authority also relied on the opinion rendered by the Professor and Head of Department of Forensic Medicine and Toxicology, Osmania Medical College, Hyderabad, wherein, the fatal effects of consumption of 'ganja' have been classified. Further, the material placed on record reveals that the detenu was granted bail by a learned single Judge of this Court in both the alleged cases, i.e., in the case referred to as his antecedent criminal history (Crime No.378/2019) as well as in the case relied upon by the detaining authority to detain the detenu (Crime ARR, J & Dr. SAJ 8 W.P.No.19054 of 2020 No.172/2020). Under these circumstances, the contention of the respondents that the illegal activities of the detenu would disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order and there is imminent possibility of the detenu again indulging in similar prejudicial activities, cannot be brushed aside.
9. It is apt to state that preventive detention is different from punitive detention. While punitive detention could be enforced under ordinary criminal law, the law of preventive detention can be enforced against habitual offenders to prevent them from committing the future similar offences, which are detrimental to the public interest, disturbing the even tempo of life and causing damage to public health. The legal parameters for testing the validity of 'preventive detention' fundamentally vary from that of 'punitive detention'. Also, 'Public order' is distinct from 'law and order'. While individual offences without affecting public at large could be considered as violating 'law and order', the offences that affect larger public and disturbs the even tempo of public life fall under the category of disturbance to public order and only in the latter category of cases, the law of preventive detention shall be enforced.
10. In the case of Madhu Limaye Vs. Sub-Divisional Magistrate1. The Hon'ble Apex Court held as follows:
"The acts which disturb public tranquility or are breaches of the peace should not be given a narrow meaning, but should be given a liberal interpretation. For the expression 'in the interest of public order' is very wide amplitude."1
(1970) 3 SCC 746 ARR, J & Dr. SAJ 9 W.P.No.19054 of 2020
11. In the case of Commissioner of Police & Others Vs. C.Anita (Smt.)2, the Hon'ble Apex Court examined the issue of "public order" and "law and order" and observed as follows:
"The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression "law and order" is wider in scope inasmuch as contravention of law always affects order, "public order" has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of "law and order" and "public order" is one of the degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of the public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting "public order" from that concerning "law and order". The question to ask is: "Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed?" This question has to be faced in every case on its facts."
12. In the case of R. Kalavathi v. State of Tamil Nadu3, the Hon'ble Apex Court, while dealing with the case affecting the public order, observed that even a single act which has the propensity of 2 (2004) 7 SCC 467 3 (2006) 6 SCC 14 ARR, J & Dr. SAJ 10 W.P.No.19054 of 2020 affecting the even tempo of life and public tranquility would be sufficient for detention.
13. As per the clause (f) of Section 2 of the P.D.Act, a "drug offender" means a person, who manufactures, stocks, imports, exports, sells or distributes any drug or cultivates any plant or does any other thing in contravention of any of the provisions of the Drugs and Cosmetics Act, 1940 (Central Act XXIII of 1940), or the Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985) and the rules, notification and orders made under either Act, or in contravention of any other Law for the time being in force, or who knowingly expends or applies any money 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.
14. It is pertinent to state that the personal liberty of an individual, which the law preserves and protects, can also be taken away by following the procedure established by law, when it is used to jeopardize the public good and not merely private interests. An order or detention is not a curative or reformative or punitive action, but a preventive action, the avowed object of which is to prevent the anti-social and subversive elements from imperiling the welfare of the people or the security of the nation or from disturbing the public tranquility or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances etc. In the instant case, the commission of alleged offence as indicated in the above table clearly demonstrates that the detenu, along with his associates, ARR, J & Dr. SAJ 11 W.P.No.19054 of 2020 clandestinely indulging in transporting huge quantity of 'Ganja' to various parts in the country to sell the same to youth and people addicted to drugs to make easy money, which would certainly disturb the public peace and tranquility. As mentioned above, the detenu, despite registering a criminal case against him and suspending him from police department, did not mend his attitude and committed similar offence of peddling 'ganja' in huge quantity. So it is imperative upon the officers concerned to pass the order of detention, since the acts of the detenu are prejudicial to the maintenance of public order. The illegal activities of the detenu were of such a reach and extent, that they would certainly affect the even tempo of life and the public health at large and were prejudicial to the public order. The detaining authority had sufficient material to record subjective satisfaction that the detention of the detenu was necessary to maintain public order and even tempo of life of the community. The order of detention does not suffer from any illegality. The grounds of detention, as indicated in the impugned order, are found to be relevant and in tune with the provisions of the P.D. Act. Since the detenu was granted bail in the solitary case relied upon by the detaining authority, there is nothing wrong on the part of the detaining authority in raising an apprehension that there is possibility of the detenu committing similar offences, which would again certainly affect the public health at large. The quick succession of commission of alleged offences by the detenu makes it amply clear that there is every possibility of detenu committing similar offences in future, which are prejudicial to the maintenance of public order. The material placed on record reveals that the detenu was supplied ARR, J & Dr. SAJ 12 W.P.No.19054 of 2020 with the documents relied upon by the detaining authority in the language known to him, i.e., Telugu, besides English. The subjective satisfaction of the detaining authority is not tainted or illegal on any account. The acts of the detenu cannot be dealt with under ordinary criminal law. Under these circumstances, the detaining authority is justified in passing the impugned detention order. We do not see any merit in this Writ Petition and as such, it is liable to be dismissed.
15. The Writ Petition is, accordingly, dismissed. There shall be no order as to costs.
The miscellaneous petitions pending, if any, in this Writ Petition, shall stand closed.
____________________ A. RAJASHEKER REDDY, J ____________________ Dr. SHAMEEM AKTHER, J 15th March, 2021 Bvv