Telangana High Court
Banuka Narmada 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.13574 OF 2022
ORDER:(Per Hon'ble Dr. Justice Shameem Akther) Smt. Banuka Narmada, the petitioner, has filed this Habeas Corpus petition on behalf of her son, Banuka Chakri, S/o. late Mallesham, the detenu, challenging the detention order vide No.29/PD-CELL/CCRB/RCKD/2022, dated 22.02.2022 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 orders passed by the Government of Telangana.
2. Heard the learned counsel for petitioner, learned Assistant Government Pleader for Home representing the learned Additional Advocate General appearing for the respondents and perused the record.
3. The case of the petitioner is that basing on two crimes registered against the detenu in the recent past, i.e. Crime Nos.126 of 2021 of Mothkur Police Station, and 274 of 2021 of Ramannapet Police Station, registered for the offence under Section 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act'), the respondent No.2 passed the impugned Dr.SA,J & JS,J 2 W.P.No.13574 of 2022 detention order, dated 22.02.2022. According to respondent No.2, the detenu is a 'Drug Offender', and has been habitually involving in dangerous activities of peddling 'ganja', a narcotic substance, in the police station limits of Rachakonda Commissionerate, endangering the lives of youth, causing irreparable damage to their body organs, including Central Nervous System and thereby crippling the health of those who are addicted to drugs. His unlawful activities are causing widespread danger to the public health and detrimental to public order and public health at large.
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. The detenu was falsely implicated in the two cases relied by the detaining authority. The alleged illegal activities of the detenu would not satisfy the word 'drug offender'. Already criminal law was set into motion against the detenu. Further, the detenu was granted bail by the Court concerned in both the crimes relied by the detaining authority. But he was again sent to jail by invoking draconian preventive detention laws. The apprehension that since the detenu has come out from prison on bail, there is imminent possibility of the detenu indulging in similar prejudicial activities again, which would be prejudicial and detrimental to the public order and public health at large, unless he Dr.SA,J & JS,J 3 W.P.No.13574 of 2022 is prevented from doing so by an appropriate order of detention, is highly misplaced. The alleged crimes do not add up to "disturbing the public order" and they are confined within the ambit and scope of the word "law and order". Since the offence alleged in both the crimes is under the 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 law against the detenu. 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.
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 'drug offender'. He, along with his associates, has been indulging in unlawful and highly dangerous activities of peddling 'ganja', a narcotic substance, in the limits of Rachakonda Commissionerate, endangering the lives of the youth and causing irreparable damage to their body organs including Central Nervous System and thereby crippling the health of those addicted to drugs. Since the detenu was granted conditional bail in both the crimes relied by the detaining authority, the apprehension of the detaining authority that there is imminent possibility of the detenu indulging in similar prejudicial activities again, is not Dr.SA,J & JS,J 4 W.P.No.13574 of 2022 misconceived. The crimes allegedly committed by the detenu was causing widespread danger to public health and detrimental to public order. Therefore, the detaining authority was legally justified in passing the impugned detention order. Further, the Advisory Board rendered its opinion that there is sufficient cause for detention of the detenu. Before passing of confirmation order by the Government, the petitioner filed this writ petition prematurely, without exhausting the remedies available under the Telangana Act 1 of 1986. All the mandatory requirements were strictly followed by the detaining authority while passing the impugned detention order. The impugned detention order is 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.29/PD- CELL/CCRB/RCKD/2022, dated 22.02.2022 passed by the respondent No.2, and the consequential confirmation order passed by the 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 Dr.SA,J & JS,J 5 W.P.No.13574 of 2022 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 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 1 AIR 1966 SC 740 2 (1972) 3 SCC 831 Dr.SA,J & JS,J 6 W.P.No.13574 of 2022 '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 two crimes indicated above, has passed the impugned detention order, dated 22.02.2022. 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
Section
126/2021 of Cognizable/
12.11.2021 12.11.2021 20(b)(ii)(A) of
Mothkur PS Non Bailable
NDPS Act
Section
274/2021 of Cognizable/
27.12.2021 27.12.2021 20(b)(ii)(A) of
Ramannapet PS Non Bailable
NDPS Act
11. As seen from the material placed on record, the two crimes relied upon by the detaining authority for preventively detaining the detenu relate to peddling of 'ganja'. Subsequent to his arrest, the detenu moved bail petitions in both the crimes relied by the detaining authority and he was granted conditional bail in both the crimes by the Court concerned, vide orders, dated 01.12.2021 and 18.01.2022, respectively. Under these circumstances, the apprehension of the detaining authority that there is imminent possibility of the detenu indulging in similar prejudicial activities again, which would be detrimental to the maintenance of the public order and public health Dr.SA,J & JS,J 7 W.P.No.13574 of 2022 at large, unless he 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 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. Further, the conditional orders of bail restricts the movement of the detenu and requires him to appear before the officer concerned periodically and the detenu would be under the surveillance of the police and the Court. Moreover, criminal law was already set into motion against the detenu. Further, since the detenu has allegedly committed offence punishable under the NDPS Act, the said crimes can be effectively dealt with under the provisions of the special law and there was no need for the detaining authority to invoke the draconian preventive detention law. Thus, the offences allegedly committed by the detenu in the two crimes relied by the detaining authority 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 order. The detaining authority cannot be permitted to subvert, supplant or Dr.SA,J & JS,J 8 W.P.No.13574 of 2022 substitute the punitive law of land, by ready resort to preventive detention.
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:29/PD-CELL/CCRB/RCKD/2022, dated 22.02.2022, passed by the respondent No.2, and the consequential orders passed by the Government of Telangana, are hereby set aside. The respondents are directed to set the detenu, namely Banuka Chakri, S/o. Late Mallesham, 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 MD / BVV