Telangana High Court
W. Vinod Dinesh Kannan vs The State Of Telangana on 25 July, 2022
Author: Shameem Akther
Bench: Shameem Akther, N.Tukaramji
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE N.TUKARAMJI
WRIT PETITION No.22919 OF 2022
ORDER:(Per Hon'ble Dr. Justice Shameem Akther) Sri W.Vinod Dinesh Kannan, S/o Vinod, the petitioner, has filed this Habeas Corpus petition on behalf of his mother, Wajabad Lavanya, W/o Vinod, the detenue, challenging the detention order vide No.33/PD-CELL/CCRB/RCKD/2022, dated 14.03.2022, passed by the respondent No.2-Commissioner of Police, Rachakonda Commissionerate, whereby, the detenue 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.1090, General Administration (Spl. (Law & Order)) Department, dated 23.05.2022, passed by the Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana.
2. Heard the learned counsel for the petitioner, learned Special Government Pleader for Home representing the learned Additional Advocate General appearing for the respondents and perused the record.
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3. The case of the petitioner is that basing on a recent solitary crime registered against the detenue viz., Crime No.112 of 2022 of Jawaharnagar Police Station, Rachakonda Commissionerate registered for the offences under Section 370A(2) of IPC and Sections 3, 4, 5 and 7 of Immoral Traffic (Prevention) Act, 1956 (for short 'PITA Act'), the respondent No.2 passed the impugned detention order, dated 14.03.2022. According to the respondent No.2, the detenue is an 'Immoral Traffic Offender', as she along with her associate has been indulging in human trafficking for the sake of prostitution and running organized prostitution business with trafficked girls for her pecuniary benefits. The detenue has been engaging herself in unlawful acts and indulging in the acts of organizing prostitution clandestinely by acting as a leader/member of criminal gang for making quick money in a short period and leading luxurious life. Her activities not only endanger the family system but also harmful to the inhabitants of the locality, apart from causing embarrassment to the families living there. Her immoral activities would also lead to social unrest and widespread health hazards and thus, her activities are prejudicial to the maintenance of public order and public health at large. Subsequently, the impugned detention order was confirmed by the Government, vide G.O.Rt.No.1090, dated 23.05.2022.
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4. Learned counsel for the petitioner would contend that the impugned detention order has been passed in a mechanical manner and without application of mind. Already criminal law was set into motion against the detenue. In the solitary crime relied upon by the detaining authority, the detenue was granted bail by the Court concerned. But she was again sent to jail by invoking the draconian preventive detention laws. The apprehension of the detaining authority that there is imminent possibility of the detenue indulging in similar prejudicial activities again, which would be prejudicial to the maintenance of public order, unless she is prevented from doing so by an appropriate order of detention, is highly misplaced. The alleged crime does not add up to "disturbing the public order" and it is confined within the ambit and scope of the word "law and order". Since the offence alleged is under the Indian Penal Code and the PITA Act, the detenue can certainly be tried and convicted under the penal code and the said special law. Thus, there was no need for the detaining authority to invoke the draconian preventive detention law against the detenue. Hence, the impugned orders tantamount to colourable exercise of power. The impugned orders are legally unsustainable and ultimately, prayed to allow the Writ Petition, as prayed for.
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5. On the other hand, the learned Special Government Pleader for Home appearing for the respondents supported the impugned orders and submitted that the detenue is an 'Immoral Traffic Offender'. She along with her associates has been indulging in human trafficking for the sake of prostitution and running organized prostitution business with trafficked girls by acting as a leader/member of criminal gang for making quick money in a short period and causing social unrest and widespread health hazards and thus, her activities are prejudicial to the maintenance of public order. Since the detenue got bail in the solitary crime relied upon by the detaining authority, the apprehension of the detaining authority that there is imminent possibility of the detenue indulging in similar offences, is not misconceived. Therefore, the detaining authority and the Government are justified in passing the impugned orders. 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 No.33/PD- CELL/CCRB/RCKD/2022, dated 14.03.2022, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.1090, General Administration (Spl. (Law & 5 Dr.SA,J & NTR,J W.P.No.22919 of 2022 Order)) Department, dated 23.05.2022, passed by the 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 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 1 AIR 1966 SC 740 6 Dr.SA,J & NTR,J W.P.No.22919 of 2022 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 a solitary crime indicated above, has passed the impugned detention order, dated 14.03.2022. We shall present it 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
Section
370A(2) of
Section 370A(2) IPC:
112/2022 of of IPC and Cognizable/
08.02.2022 08.02.2022
Jawaharnagar PS Sections 3, 4, 5 & Non Bailable
7 of PITA Sections 3, 4, 5
& 7 of PITA :
Cognizable
2
(1972) 3 SCC 831
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W.P.No.22919 of 2022
11. As seen from the material placed on record, the solitary crime relied upon by the detaining authority for preventively detaining the detenue relate to immoral trafficking. Further, the detenue was arrested in connection with the said crime and subsequently, she moved bail application in the said crime and was granted bail by the Court concerned and released from judicial custody on 09.03.2022. Under these circumstances, the apprehension of the detaining authority that there is imminent possibility of the detenue indulging in similar prejudicial activities again, which would be prejudicial to the maintenance of public order, unless she is prevented from doing so by an appropriate order of detention, is highly misplaced. It is the bounden duty of the Police to inform the learned Public Prosecutor about the conduct of the detenue and to handover the entire case record available against the detenue. The police are supposed to be vigilant in collecting the whole data against the detenue and furnish the same to the Public Prosecutor/Additional Public Prosecutor to defeat the bail application/s of the detenue. Further, in the instant case, since the detenue was granted bail by the Court concerned, if it is found that the detenue involved in further crimes, the prosecution can apprise the same to the Court concerned and seek cancellation of bail. Further, as held in Vijay Narain Singh v.
8 Dr.SA,J & NTR,J W.P.No.22919 of 2022 State of Bihar3, a single act or omission cannot be characterized as a habitual act because, the idea of 'habit' involves an element of persistence and a tendency to commit or repeat similar offences, which is patently not present in the instant case. Moreover, criminal law was already set into motion against the detenue. Further, since the detenue has committed offence punishable under the Indian Penal Code and PITA, the said crime can be effectively dealt with under the provisions of Penal Code and the said special law and there was no need for the detaining authority to invoke the draconian preventive detention law. Thus, the offences committed by the detenue in the solitary crime relied by the detaining authority do not fall within the ambit of the words "public order" or "disturbance of public order". Instead, it falls within the scope of the words "law and order". Hence, there was no need for the detaining authority to pass the impugned detention order. The detaining authority cannot be permitted to subvert, supplant or substitute the punitive law of land, by ready resort to preventive detention. Further, this Court had taken a similar view in W.P.No.9615 of 2022, dated 13.04.2022, whereby the detention order and the confirmation order passed by relying on a solitary case of immoral trafficking, was set aside by this Court. 3 (1984) 3 SCC 14 9 Dr.SA,J & NTR,J W.P.No.22919 of 2022
12. For the foregoing reasons, the impugned orders are legally unsustainable and are liable to be set aside.
13. In the result, the Writ Petition is allowed. The impugned detention order vide No.33/PD-CELL/CCRB/RCKD/2022, dated 14.03.2022, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.1090, General Administration (Spl. (Law & Order)) Department, dated 23.05.2022, passed by the Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana, are hereby set aside. The respondents are directed to set the detenue, namely, Wajabad Lavanya, W/o Vinod, at liberty forthwith, if she is no longer required in any other criminal case.
The Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed. There shall be no order as to costs.
______________________ Dr. SHAMEEM AKTHER, J ________________ N.TUKARAMJI, J Date: 25.07.2022 ssp