Telangana High Court
Jatothu Somanna vs The State Of Telangana on 3 July, 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.12449 OF 2023
ORDER:(Per Hon'ble Sri Justice K. Lakshman) Heard Sri M.Amarnath, learned counsel for the petitioner and Sri Mujib Kumar Sadasivuni, learned Special Government Pleader representing learned Additional Advocate General appearing on behalf of the respondents.
2. The Impugned detention order dated 19.04.2023 was passed relying on the following three cases:-
Sl.No. Crime No. Nature of Offences Nature of Remarks Allegations
01. 33 of 2023 of 7(A) r/w 8(e) 1. 20 Liters of 41-A Thorrur P.S. of TSP Act' I.D.Liquor.
95&34(e) of TSE 2. 500 Kgs of Balck Act' 68 Jaggery.
3. 50 Kgs of Alum.
02. 35 of 2023 of 7(A) r/w 8(e) 1. 10 Liters of 41-A Thorrur P.S. of TSP Act' I.D.Liquor.
95&34(e) of TSE 2. 50 Kgs of Balck
Act' 68 Jaggery.
3. 02 Kgs of Alum.
03. 38 of 2023 of 7(A) r/w 8(e) 1. 40 Liters of 41-A
Thorrur P.S. of TSP Act' I.D.Liquor.
95&34(e) of TSE 2. 2500 Kgs of
Act' 68 Balck Jaggery.
3. 280 Kgs of
Alum.
4. Tata ACE,
No.TS26T-5608
6. Cash Rs.40,000/-
2
KL,J & PSS,J
W.P. No.12449 of 2023
03. In the aforesaid crimes, the allegations leveled against the petitioner are that he has illegal possessed and transported I.D.Liquor, black jaggery, alum etc., illegally. Considering the punishment prescribed for the aforesaid offences, the investigation officer has already initiated procedure laid down under 41-A of Cr.P.C.
04. According to the learned Special Government Pleader, in all the aforesaid three crimes, FSL reports are awaited and on receipt of FSL reports, Investigation Officer will file charge sheets.
05. The respondent authorities have already set the criminal law into motion by registering the aforesaid three crimes against the detenu. The Telangana Excise Act, 1968 and the Telangana Prohibition and Excise Act, 1995 are special statutes, wherein, the procedure is prescribed to prosecute the offender. Thus, the Investigating Officers have already registered the aforesaid three crimes, initiated procedure laid down under Section 41-A Cr.P.C. However, they have not taken step under Section 41-A(4) of Cr.P.C.
06. 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. 1 . (1982) 2 SCC 403 3 KL,J & PSS,J W.P. No.12449 of 2023
07. 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 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 2 . (1966) 1 SCR 709 4 KL,J & PSS,J W.P. No.12449 of 2023 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."
08. In Vijay Narain Singh v. State of Bihar3, a three Judge Bench of the Apex Court had an occasion to deal with the expression 'habitually' and held that the expression 'habitually' would mean 'repeatedly' or 'persistently' implying a thread of continuity, stringing together similar repetitive acts, and a single act or omission would not characterize as an act of 'habitual'. The Apex Court was of the opinion that to qualify as a 'habit', a person must have grown accustomed to leading a life of crime, whereby it would be a force of habit, inherent or latent, in an individual with a criminal instinct, with a criminal disposition of mind, that makes him as dangerous to society in general.
09. There is no consideration of the aforesaid aspects by respondent No.2 in the impugned detention order. Therefore, there was no material before the detaining authority to come to a subjective satisfaction with regard to the disturbance to the public order.
10. In view of the same, according to us, both impugned detention order passed by respondent No.2 and confirmation order 3 . (1984) 3 SCC 14 5 KL,J & PSS,J W.P. No.12449 of 2023 passed by respondent No.1 are illegal and they are liable to be set aside and accordingly the same are set aside. This Writ Petition is allowed. Respondents are directed to set the detenu i.e., Jatoth Naveen, s/o. Kobal, Age: 23 years, Caste: ST-Lambada, Occupation:
Business, R/o. Jagna Thanda Village, Thorrur Mandal, Mahabubabad District, free forthwith, if he is no longer required in any other criminal case. There shall be no order as to costs.
As a sequel, the miscellaneous petitions, if any, pending in the writ petitions shall stand closed.
_________________ K. LAKSHMAN, J _________________ P. SREE SUDHA, J 03rd July, 2023 Ssy/myk