Telangana High Court
Naseem Begum vs The State Of Telangana on 29 April, 2022
Author: Shameem Akther
Bench: Shameem Akther, Juvvadi Sridevi
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
WRIT PETITION No.15674 OF 2022
ORDER:(Per Hon'ble Dr. Justice Shameem Akther) Mrs. Naseem Begum, the petitioner, has filed this Habeas Corpus Petition on behalf of her son, Abdul Samad, S/o. late Abdul Waheed, the detenu, challenging the detention order vide SB(I)No.434/PD-1/HYD/2021, dated 29.11.2021, passed by the respondent No.2, whereby, the detenu was detained under Section 3(2) of the Telangana Preventive Detention Act, 1986 (Act 1 of 1986), and the consequential confirmation order vide G.O.Rt.No.425, General Administration (Spl. (Law & Order)) Department, dated 22.02.2022, passed by the Principal Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana.
2. Heard the learned counsel for the petitioner, learned Assistant Government Pleader for Home appearing for the respondents and perused the record.
3. The case of the petitioner is that basing on three crimes viz., Crime Nos.165/2021 of Abid Road Police Station, 793/2021 and 796/2021 of Banjara Hills Police Station, Hyderabad Dr.SA, J & JS, J 2 W.P.No.15674 of 2022 Commissionerate, the respondent No.2 passed the impugned detention order, dated 29.11.2021. According to respondent No.2, the detenu is a 'Goonda' and he has been habitually committing grave and dangerous offences including robbery and extortion along with his associates in the limits of Hyderabad Police Commissionerate, thereby acting in a manner prejudicial to the maintenance of public order, apart from disturbing peace, tranquility and social harmony in the society. Subsequently, the impugned detention order was confirmed by the Government, vide G.O.Rt.No.425, dated 22.02.2022.
4. Learned counsel for the petitioner would contend that relying on three cases registered against the detenu in the year 2021, the impugned detention order was passed. The alleged cases do not add up to "disturbing the public order". They are confined within the ambit and scope of the word "law and order". Since the offences alleged are under the Indian Penal Code and Indian Arms Act, the detenu can certainly be tried and convicted under the Indian Penal Code and the said special law. Thus, there was no need for the detaining authority to invoke the draconian preventive detention law. Hence, the impugned orders tantamount to colourable exercise of power. Further, the detenu did not move bail petition in any of the crimes relied by the detaining authority Dr.SA, J & JS, J 3 W.P.No.15674 of 2022 and he continues to be in judicial custody. Without there being any cogent material on record, the detaining authority reached to the conclusion that there is every possibility of the detenu moving bail petitions in all the three crimes relied by the detaining authority and his release on bail soon and that if such a habitual offender is let free, there is an imminent possibility of his committing similar offences. The impugned detention order has been passed without proper application of mind. Already criminal law was set into motion against the detenu. Preventive detention cannot be made a substitute to punitive detention. The detaining authority has to be extremely careful while passing the detention order, since the detention ipso facto adversely affects the fundamental right and personal liberty enjoyed by the detenu under Article 21 of the Constitution of India. Thus, the impugned orders are legally unsustainable and ultimately, prayed to allow the Writ Petition, as prayed for.
5. On the other hand, the learned Assistant Government Pleader for Home appearing for the respondents supported the impugned orders and submitted that the detenu is a 'Goonda'. He has been habitually committing offences including robbery and extortion along with his associates in the limits of Hyderabad Police Commissionerate, thus creating widespread fear and panic among Dr.SA, J & JS, J 4 W.P.No.15674 of 2022 the people. The series of crimes allegedly committed by the detenu were prejudicial to the maintenance of public order, apart from disturbing the peace, tranquility, and social harmony in the Society. Since the modus of committing the crime was robbery and extortion, it has created sufficient panic in the minds of the general public. Though the detenu was earlier detained under the provisions of Telangana Act 1 of 1986 (PD Act) vide order, dated 30.12.2020, there was no change in his attitude and after release from preventive detention, he again committed the subject three crimes. Therefore, the detaining authority was legally justified in passing the impugned detention order. The detention order was passed on valid grounds. The subjective satisfaction arrived by the detaining authority for preventively detaining the detenu is not tainted or illegal. Further, the Advisory Board rendered its opinion that there is sufficient cause for detention of the detenu and on considering the same along with the entire material, the Government confirmed the impugned detention order vide G.O.Rt.No.425, dated 22.02.2022. All the mandatory requirements were strictly followed by the detaining authority while passing the impugned detention order. The essential concept of preventive detention is not to punish a person for the illegal acts already done by him, but to prevent him from doing the Dr.SA, J & JS, J 5 W.P.No.15674 of 2022 same. Pendency of prosecution is no bar for passing an order of detention and vice versa. The impugned orders are legally sustainable and ultimately, prayed to dismiss the Writ Petition.
6. In view of the submissions made by both the sides, the point that arises for determination in this Writ Petition is:
"Whether the impugned detention order vide SB(I)No.434/PD-1/HYD/2021, dated 29.11.2021, passed by the respondent No.2 and the consequential confirmation order vide G.O.Rt.No.425, General Administration (Spl. (Law & Order)) Department, dated 22.02.2022, passed by the Principal Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana, are liable to be set aside?"
POINT:
7. In catena of cases, the Hon'ble Supreme Court had clearly opined that there is a vast difference between "law and order" and "public order". The offences committed against a particular individual fall within the ambit of "law and order" and when the public at large is adversely affected by the criminal activities of a person, such activities of that person are said to disturb the public order. Moreover, individual cases can be dealt with by the criminal justice system. Therefore, there is no need for the detaining Dr.SA, J & JS, J 6 W.P.No.15674 of 2022 authority to invoke the draconian preventive detention laws against an individual. Hence, according to the Hon'ble Apex Court, the detaining authority should be wary of invoking the immense power under the Act.
8. In Ram Manohar Lohia v. State of Bihar1, the Hon'ble Supreme Court has, in fact, deprecated the invoking of the preventive law in order to tackle a law and order problem. It was observed that every breach of public peace and every violation of law may create a 'law and order' problem, but does not necessarily create a problem of 'public order'. The distinction has to be borne in mind in view of what has been stated in the grounds of detention.
9. In Kanu Biswas v. State of West Bengal2, the Hon'ble Apex Court, while discussing the meaning of word 'public order,' held that the question whether a man has only committed a breach of 'law and order' or has acted in a manner likely to cause a disturbance of the 'public order', is a question of degree and extent of the reach of the act upon the Society.
10. In the present case, the detaining authority, basing on three crimes indicated above, passed the impugned detention order, 1 AIR 1966 SC 740 2 (1972) 3 SCC 831 Dr.SA, J & JS, J 7 W.P.No.15674 of 2022 dated 29.11.2021. We shall present them in a tabular form the date of occurrence, the date of registration of FIR, the offence complained of and its nature, such as bailable/non-bailable or cognizable/non-cognizable.
Date of
Date of
Crime No. registration Offences Nature
Occurrence
of FIR
165/2021 of Abid Cognizable/
26.06.2021 02.08.2021 Section 379 of IPC
Road PS Non Bailable
Section 392:
Cognizable/
Section 392 of IPC
Non Bailable
793/2021 of and Section
25.10.2021 28.10.2021 Section
Banjara Hills PS 25(1)(B) of Indian
25(1)(B) of
Arms Act
Arms Act:
Bailable
Section 384:
Cognizable/
796/2021 of Sections 384, 341, Non Bailable
25.10.2021 29.10.2021
Banjara Hills PS 506 r/w 34 of IPC Section 341:
Cognizable/
Bailable
11. As seen from the material placed on record, the detenu was arrested and remanded to judicial custody in Crime No.793/2021 of Banjara Hills Police Station and his arrest was regularized on PT Warrant in the remaining two crimes. However, the detenu did not move bail petition in any of the three crimes relied by the detaining authority and he continued to be in judicial custody as on the date of passing of the impugned detention order. Under these circumstances, the apprehension of the detaining authority that there is every possibility of the detenu moving bail petitions in all the three cases in which he is in judicial remand on the same Dr.SA, J & JS, J 8 W.P.No.15674 of 2022 footing as of his associates, grant of bail to the detenu, his release from judicial custody on bail soon, and if such a habitual offender like the detenu is let free, there is an imminent possibility of his committing similar offences which would be detrimental to public order unless he is prevented from doing so by an order or detention is highly misplaced. It is the bounden duty of the Police to inform the learned Public Prosecutor about the conduct of the detenu and to handover the entire case record available against the detenu. The police are supposed to be vigilant in collecting the whole data against the detenu and furnish the same to the Public Prosecutor/Additional Public Prosecutor to defeat the bail application/s of the detenu. When the detenu has not been released from the judicial custody, the apprehension of his coming out from the prison and committing similar offences is misplaced. Here, it is appropriate to refer to the decision of the Hon'ble Apex Court in Rekha Vs. State of Tamil Nadu3, wherein it is held as follows:
"Where a detention order is served on a person already in jail, there should be a real possibility of release of a person on bail who is already in custody, provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence, the detention order will be illegal."3
(2011) 5 SCC 244 Dr.SA, J & JS, J 9 W.P.No.15674 of 2022 Moreover, criminal law was already set into motion against the detenu. Since the detenu has allegedly committed offences punishable under the Indian Penal Code and Indian Arms Act, the said crimes can be effectively dealt with under the provisions of the Penal Code and the special law and there was no need for the detaining authority to invoke draconian preventive detention laws. The instant cases do not fall within the ambit of the words "public order" or "disturbance of public order". Instead, they fall within the scope of the words "law and order". Hence, there was no need for the detaining authority to pass the impugned detention orders. The detaining authority cannot be permitted to subvert, supplant or substitute the punitive law of land, by ready resort to preventive detention.
12. Even while passing the confirmation order, dated 22.02.2022, the Principal Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana, has failed to notice that the detenu continue to languish as under-trial in the jail. Once the detenu was already confined, the question of confirming the detention orders would not even arise.
13. For the foregoing reasons, the impugned orders are legally unsustainable and are liable to be set aside.
Dr.SA, J & JS, J 10 W.P.No.15674 of 2022
14. In the result, the Writ Petition is allowed. The impugned detention order vide SB(I).No.434/PD-1/HYD/2021, dated 29.11.2021, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.425, General Administration (Spl. (Law & Order)) Department, dated 22.02.2022, passed by the Principal Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana, are hereby set aside. The respondents are directed to set the detenu, namely Abdul Samad, S/o. late Abdul Waheed, at liberty forthwith, if he is no longer required in any other criminal case.
Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed. There shall be no order as to costs.
____________________ Dr. SHAMEEM AKTHER, J _________________ JUVVADI SRIDEVI, J 29th April, 2022 BVV