Telangana High Court
Jarpula Kavitha vs The State Of Telangana on 27 July, 2023
Bench: K.Lakshman, P.Sree Sudha
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE P. SREE SUDHA
WRIT PETITION No.15696 OF 2023
COMMON ORDER:(Per Hon'ble Sri Justice K. Lakshman) Heard Smt. Laxmaiah Kanchani, learned counsel for the petitioner and learned Special Government Pleader representing learned Additional Advocate General appearing on behalf of the respondents.
2. This Writ Petition is filed to issue Writ of Habeas Corpus to direct respondents to release the detenu i.e. Sri Jarpula Hathiram, S/o. Mangya, Aged about 34 years, Occ: Labour, R/o. Cheruvumundhari Thanda Village, Nekkonda Mandal, Warangal District, Telangana State, detained in Central Prison, Cherlapally Jail, Medchal Malkajgiri District by setting aside the order of detention vide Proceedings C.No.C1/1173/2023, dated 14.06.2023 passed by respondent No.2 i.e., Collector and District Magistrate, Warangal District as illegal, arbitrary, improper, unilateral, unconstitutional and violative of Articles 21 and 22 of the Constitution of India and to forthwith release the detenu.
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KL,J & PSS,J W.P. No.15696 of 2023
3. Perusal of the detention order would reveal that six (06) cases were registered against the detenu and the details of the same are mentioned in the table below.
Sl. C.O.R.No. Section of Figured Property Seized Stage of
No Law as the Case
01. 34 of 2022 7(A) r/w As A2 1) (45) Kgs of Pending
dated:25.02.2022 8(e) of AP (Among Jaggery Investigati
of PS Proh. Act' (2) 2) (04) Kgs of on
Chennaraopet. 95 & 34 accused Alum
(e) of AP persons) 3) (70) liters of
Excise I.D.Liquor
Act. 4) One Hero
Glamour Bike
without number
02. 180 of 2022 7(A) r/w As A2 1) (60) Liters of Pending
date:29.06.2022 8(e) of AP (Among I.D.Liquor Investigati
of P&E Stn: Proh. Act' (2) 2) Pulsar bike on
Narsampet. 1995 accused with registration
persons) No. Nil.
03. 37 of 2023, 7(A) r/w Sole 1) (10) Liters of Pending
date:13.02.2023 8(e) of AP Accused I.D.Liquor Investigati
of P&E Stn: Proh. Act' 2) (60) Kgs of on
Narsampet. 95 & 34 Jaggery
(e) of AP 3) (100) Liters of
Excise FJ wash
Act' 68 (Destroyed on the
spot)
04. 59 of 2023, 7(A) r/w As A1 1) (80) liters of Pending
date:14.03.2023 8(e) of AP (Among Liquor Investigati
of P&E Stn: Proh.Act' (3) 2) Honda Shine on
Narsampet. 95 accused bike without
persons) number
3) Honda Shine
bike without
number
05. 71 of 2023, 7(A) r/w As A3 1) (50) Liters of Pending
date:25.03.2023 8(e) of AP (Among I.D.Liquor Investigati
of P&E Stn: Proh. Act' (3) 2) (800) Liters of on
Narsampet. 95 accused FJ wash
persons) 3) Bajaj Platina
Bike
Reg.No.TS23H08
91
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KL,J & PSS,J
W.P. No.15696 of 2023
4) Hero
Glammour bike
without number
06. 137 of 2023, 7(A) r/w Sole 1) (40) Liters of Pending
date:20.05.2023 8(e) of AP Accused I.D.Liquor Investigati
of P&E Stn: Proh. Act' 2) Hero Glamour on
Gudur. 95 bike with
registration
number
TS05ED3251
4. In all the aforesaid cases, the allegations leveled against the detenu herein are that he was involved in the activities of Sale, Possession and Transportation of Illicit distilled Liquor, Black Jaggery and Alum. Punishment prescribed for the aforesaid offences is seven years and below seven years. Therefore, the Investigating Officer has already invoked the procedure laid down under Section 41-A of Cr.P.C.
5. According to learned Special Government Pleader, the investigation in all the aforesaid crimes is pending and in the counter it is specifically mentioned with regard to analysis report and receipt of FSL report. Thus, Criminal law was already set on motion.
6. The Andhra Pradesh Excise Act, 1968 and the Telangana Prohibition Act, 1995 are special statues and procedure is prescribed to prosecute the accused involved in the aforesaid offences. 4
KL,J & PSS,J W.P. No.15696 of 2023
7. It is also relevant to note that the Investing Officers in the aforesaid crimes did not even take steps under Section 41-A(4) of Cr.P.C on the ground that detenu herein involved in similar offences and he is not cooperating with the investigating officers in concluding the investigation.
8. In Ashok Kumar v. Delhi Administration1, Apex Court observed that preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing.
9. In Ram Manohar Lohia v. State of Bihar2, the 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 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 1 . (1982) 2 SCC 403 2 . (1966) 1 SCR 709 5 KL,J & PSS,J W.P. No.15696 of 2023 examples 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(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances. 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 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."
10. In Vijay Narain Singh v. State of Bihar3, the Hon'ble Supreme Court explained the phrase 'habitual criminal' as follows:
"12. A person is habitual criminal who by force of-habit or inward disposition, inherent or latent in him, has grown accustomed to lead a life of crime. It is the force of habit inherent or latent in an individual with a criminal instinct, with a criminal disposition of mind, that makes him dangerous to the society in general. In simple language the word 'habitually' means 'by force of habit'."3
(1984) 3 SCC 14.
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11. It is relevant to note that Hon'ble Apex Court and this Court in catena of decisions categorically held that detention authorities shall consider the entire material while issuing detention order by invoking their powers under Act 1 of 1986. They have to come to subjective satisfaction before passing detention orders. In rarest of rare cases, that too, to prevent the detenu from committing similar offences which will disturb the public order, Act 1 of 1986 shall be invoked by issuing preventive detention order. It is a extreme step. In the present case, there is no consideration of the said aspects by the detention authorities
12. In the light of the aforesaid discussion, we are of the considered opinion that the impugned detention order dated 14.06.2023 is illegal, it is liable to be set aside and accordingly it is set aside. This Writ Petition is allowed. The respondents are directed to set the detenu i.e., Sri Jarpula Hathiram, S/o. Mangya, Age: 34 years, Caste: ST-Lambada, Occupation: Labour, R/o. Cheruvumundhari Thanda Village, Nekkonda Mandal, Warangal District, free forthwith if he is no longer required in any other criminal cases. There shall be no order as to costs.
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KL,J & PSS,J W.P. No.15696 of 2023 As a sequel, the miscellaneous petitions, if any, pending in the writ petitions shall stand closed.
_________________ K. LAKSHMAN, J _________________ P. SREE SUDHA, J 27th July, 2023 ssy