Telangana High Court
Smt. Namburi Parvathi vs The Commissioner Of Police on 20 September, 2022
Author: Shameem Akther
Bench: Shameem Akther
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI. JUSTICE E.V.VENUGOPAL
WRIT PETITION No.26837 OF 2022
ORDER:(Per Hon'ble Dr. Justice Shameem Akther) Smt. Namburi Parvathi, the petitioner, has filed this Habeas Corpus petition on behalf of her husband, Namburi Srinivasa Rao, S/o.Chinna Sambaiah, the detenu, challenging the detention order vide No.92/PD-CELL/CCRB/RCKD/2022, dated 09.06.2022, 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 confirmation order vide G.O.Rt.No.1500, General Administration (Spl. (Law & Order)) Department, Government of Telangana, dated 27.07.2022, passed by the Secretary to Government, General Administration (Spl.(Law and Order)) Department, Government of Telangana.
2. Heard the learned counsel for petitioner, learned Special Government Pleader representing the learned Advocate General appearing for the respondents and perused the record.
3. The case of the petitioner is that basing on the solitary crime viz., Crime Nos.585 of 2022 of Vanasthalipuram Police Station, the respondent No.2 passed the impugned detention order, dated Dr.SA,J & EVV, J 2 W.P.No.26837 of 2022 09.06.2022. According to respondent No.2, the detenu is a 'Spurious Seed Offender', and he has been indulging in a series of offences of procuring and selling of spurious cotton seeds to the gullible farmers for pecuniary benefits, in the limits of Rachakonda Police Commissionerate, thereby creating large scale fear and panic among the public, particularly farmers and thus adversely affecting the public order. Subsequently, the impugned detention order was confirmed by the Government, vide G.O.Rt.No.1500, dated 27.07.2022.
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 detenu. The detenu was granted bail by the Courts concerned in the solitary crime relied upon by the detaining authority. But he was again sent to jail by invoking the draconian preventive detention laws on the apprehension that there is imminent possibility of indulging in similar activities again, which would be prejudicial to the maintenance of public order, unless he is prevented from doing so by an appropriate order or detention. 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 offences alleged are under Dr.SA,J & EVV, J 3 W.P.No.26837 of 2022 the Indian Penal Code, Essential Commodities Act, 1955, Environment (Protection) Act, 1986, and Seeds Act, 1966, the detenu can certainly be tried and convicted under the penal code and the said special laws. 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 Special Government Pleader appearing for the respondents supported the impugned orders and submitted that the detenu is a 'Spurious Seed Offender'. He had been indulging in a series of offences of procuring and selling of spurious seeds for illegal monetary gain. The unlawful and dangerous activities of the detenu have been causing panic and a feeling of insecurity in the minds of general public, particularly farming community, thereby disturbing the peace and tranquility in the area. Since the detenu was granted bail in both the crimes relied upon by the detaining authority, the apprehension of the detaining authority that there is every likelihood of his indulging in similar prejudicial activities, which are detrimental to public order, is not misconceived. The series of crimes allegedly committed by Dr.SA,J & EVV, J 4 W.P.No.26837 of 2022 the detenu were sufficient to cause a feeling of insecurity in the minds of the people at large, particularly farming community. Since the modus of committing the crimes was cheating the general public, particularly farming community, by selling spurious seeds, it has created sufficient panic in the minds of the general public. 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 and on considering the same along with the entire material, the Government confirmed the impugned detention order vide G.O.Rt.No.1500, dated 27.07.2022. All the mandatory requirements were strictly followed by the detaining authority while passing the impugned detention order. 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.92/ PD-CELL/CCRB/RCKD/2022, dated 09.06.2022, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.1500, General Administration (Spl. (Law & Order)) Department, Government of Telangana, dated 27.07.2022, passed by the Secretary to Government, General Administration (Spl.(Law and Order)) Department, Government of Telangana, are liable to be set aside?"
Dr.SA,J & EVV, J 5 W.P.No.26837 of 2022 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 a recent judgment in Banka Sneha Sheela Vs. State of Telangana1, the Hon'ble Apex Court held as follows:
"12. While it cannot seriously be disputed that the Detenu may be a "white collar offender" as defined under Section 2(x) of the Telangana Prevention of Dangerous Activities Act, yet a Preventive Detention Order can only be passed if his activities adversely affect or are likely to adversely affect the maintenance of public order. Public order is defined in the Explanation to Section 2(a) of the Telangana Prevention of Dangerous Activities Act to be a harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave widespread danger to life or public health.
15. There can be no doubt that what is alleged in the five FIRs pertain to the realm of 'law and order' in that various acts of cheating are ascribed to the Detenu which are punishable under the three sections of the Indian Penal Code set out in the five FIRs. A close reading of the Detention Order would make it clear that the reason for the said Order is not any apprehension of widespread public harm, danger or alarm but is only 1 (2021) 2 Supreme Court Cases 415 Dr.SA,J & EVV, J 6 W.P.No.26837 of 2022 because the Detenu was successful in obtaining anticipatory bail/bail from the Courts in each of the five FIRs. If a person is granted anticipatory bail/bail wrongly, there are well-known remedies in the ordinary law to take care of the situation. The State can always appeal against the bail order granted and/or apply for cancellation of bail. The mere successful obtaining of anticipatory bail/bail orders being the real ground for detaining the Detenu, there can be no doubt that the harm, danger or alarm or feeling of security among the general public spoken of in Section 2(a) of the Telangana Prevention of Dangerous Activities Act is make believe and totally absent in the facts of the present case.
32. On the facts of this case, as has been pointed out by us, it is clear that at the highest, a possible apprehension of breach of law and order can be said to be made out if it is apprehended that the Detenu, if set free, will continue to cheat gullible persons. This may be a good ground to appeal against the bail orders granted and/or to cancel bail but certainly cannot provide the springboard to move under a preventive detention statute. We, therefore, quash the detention order on this ground..."
(emphasis supplied)
9. In another recent judgment in Mallada K Sri Ram Vs. State of Telangana2, the Hon'ble Apex Court, while referring to its earlier decisions in Banka Sneha Sheela's case (1 supra), Sama Aruna Vs. State of Telangana3 and Ram Manohar Lohia Vs. State of Bihar4 held as follows:
"15. A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the "maintenance of public order".
In this case, the apprehension of a disturbance to public order owing to a crime that was reported over seven months prior to the detention order has no basis in fact. The apprehension of an adverse impact to public order is a mere surmise of the detaining authority, especially when there have been no reports of unrest since the detenu was released on bail on 8 January 2021 and detained with effect from 26 June 2021. The nature of the allegations against the detenu are grave. However, the personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding. The powers of preventive detention are exceptional and even draconian. Tracing their origin to the colonial era, they have been continued with strict constitutional safeguards against abuse. Article 22 of the Constitution was specifically inserted and extensively debated in the Constituent Assembly to ensure that the exceptional powers of preventive detention do not devolve into a draconian and arbitrary exercise of state authority. The case at hand is a clear example of non-application of mind to material circumstances having a bearing on the subjective satisfaction of the detaining authority. The two 2 2022 SCC Online SC 424 3 (2018) 12 Supreme Court Cases 150 4 AIR 1966 SC 740 Dr.SA,J & EVV, J 7 W.P.No.26837 of 2022 FIRs which were registered against the detenu are capable of being dealt by the ordinary course of criminal law."
(emphasis supplied)
10. In the present case, the detaining authority, basing on solitary crime indicated above, has passed the impugned detention order, dated 09.06.2022. 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
Sections 420, 468,
487, r/w 120B of IPC
and Section 7 of
Essential
Commodities Act,
Sections 420:
1955, Seeds Rules
Cognizable/
7,8,9 & 10 of EP
Non Bailable
585/2022 of Rules for Illegal
01.05.2022 01.05.2022 Section 487, 467,
Vanasthalipuram PS Storage, 1989 &
120B:
Section 15(1) of
Non-Cognizable/
Environment
Bailable
(Protection) Act;
Section 19, 7 of
Seeds Act, 1966,
Clause 3(1), 8A of
Seeds Act.
11. As seen from the material placed on record, the solitary crime relied upon by the detaining authority for preventively detaining the detenu relate to cheating, forgery, counterfeiting a device or mark used for authenticating documents, fraudulently making a false mark, criminal conspiracy and other offences under special laws. The detenu was arrested in connection with the said crimes and subsequently, he was granted bail by the Courts Dr.SA,J & EVV, J 8 W.P.No.26837 of 2022 concerned in the said crime. The subjective satisfaction recorded by the detaining authority reads as follows:
"Taking note of the nature of offences and the manner in which he had committed the said offences, having considered his previous background and as he was already released on bail, I strongly believe that there is every likelihood of his being indulged in similar offences, which are prejudicial to the maintenance of public order. I am also satisfied that the free movement of such a person in the society will disturb the 'public order' and the even tempo of public life. In other words, his presence for the time being is not safety in the interest of the society. As such, there is imminent possibility of indulging in similar activities again, which would be prejudicial to the maintenance of public order, unless he is prevented from doing so by an appropriate order of detention."
If the State is aggrieved by granting of bail to the detenu, there are well-known remedies in the ordinary law to take care of the situation. The State can always appeal against the bail order granted and/or apply for cancellation of bail. Mere obtaining of anticipatory bail/bail orders cannot be a substantial ground for invoking draconian preventive detention law against a person. Further, a mere apprehension of 'breach of law and order' is not sufficient to meet the standard of adversely affecting the 'maintenance of public order'. In the instant case, if it is apprehended that the detenu, if set free, will continue to indulge in similar prejudicial activities, that may be a good ground to appeal against the bail orders granted and/or to cancel bail, but certainly cannot provide the springboard to move under the preventive detention statute. 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 Dr.SA,J & EVV, J 9 W.P.No.26837 of 2022 special laws, the said crime can be effectively dealt with under the provisions of the Penal Code and the said special laws and there was no need for the detaining authority to invoke draconian preventive detention laws. The subject 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 order. The detaining authority cannot be permitted to subvert, supplant or 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.92/PD-CELL/CCRB/RCKD/2022, dated 09.06.2022, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.1500, General Administration (Spl. (Law & Order)) Department, dated 27.07.2022, passed by the Secretary to Government, General Administration (Spl.(Law and Order)) Department, Government of Telangana, are hereby set aside. The respondents are directed to set the detenu, namely Namburi Srinivasa Rao, S/o. Chinna Dr.SA,J & EVV, J 10 W.P.No.26837 of 2022 Sambaiah, at liberty forthwith, if he is no longer required in any 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 _______________ E.V.VENUGOPAL, J 20th September, 2022 PSA / BVV