Telangana High Court
Mohd.Abdul Rafee Zaki vs The State Of Telangana, on 19 June, 2023
Bench: K.Lakshman, P.Sree Sudha
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE P. SREE SUDHA
WRIT PETITION Nos.13304, 13130, 13617 AND 13627 OF 2023
COMMON ORDER:(Per Hon'ble Sri Justice K. Lakshman) Heard Mrs. B. Mohana Reddy, learned counsel for the petitioners and Mr. Mujib Kumar Sadasivuni, learned Special Government Pleader representing learned Additional Advocate General appearing on behalf of the respondents.
2. All these writ petitions are filed to issue a writ of Habeas Corpus directing the respondents to produce the detenus and to order for their release forthwith by declaring their detentions vide proceedings Nos.Rev/C1/LNO/0010/2023-C.Section, Rev/C1/LNO/ 0011/2023-C.Section, Rev/C1/LNO/0012/2023-C.Section and Rev/C1 /LNO/0009/2023-C.Section, all dated 10.04.2023 passed by respondent No.2 and the consequential confirmation orders passed by respondent No.1 vide G.O.Rt.No.766 of General Administration [Special (Law and Order)] Department, dated 24.05.2023 as illegal.
3. Perusal of the impugned orders of detention would reveal that Crime No.56 of 2023 of II Town Police Station, Mahabubmnagar, 2 KL,J & PSS,J W.P. No.13304 of 2023 & batch was registered against the detenus in the writ petitions for the offences punishable under Sections - 120B and 307 read with 34 of IPC and also Section - 25 (1A) of the Arms Act, 1959. The allegations leveled against them are that they have conspired together and on 07.02.2023 at around 8.50 P.M., they have attacked the son and the husband of the complainant therein with knives, due to which, the husband of the complainant received severe bleeding injuries on the backside of head, left hand fingers, right hand and on back, while her son received severe bleeding injuries on the backside of his head, right hand and left hand, and thereby they have committed the aforesaid offences. The bail petitions filed by the detenus were dismissed twice. Investigation is pending in the said crime. The detenus arraigned as accused Nos.1 to 4 in the said crime.
4. Crime No.124 of 2013 was registered by the Police, Achampet Police Station against the detenu in W.P. No.13304 of 2023 and others for the offences punishable under Sections - 302, 148 and 120B read with 149 of IPC and Section - 25 (1A) of the Arms Act, 1959 read with Arms Rules, 1962. The Police filed charge sheet and the same was taken in file vide S.C.No.322 of 2017 on the file of the Principal District and Sessions Judge, Nagarkurnool, and the same is 3 KL,J & PSS,J W.P. No.13304 of 2023 & batch pending. However, Crime Nos.117 of 2006 for the offences punishable under Sections - 120B and 302 read with 34 of I - Town Police Station, Mahabubnagar registered against the detenu in W.P. No.13304 of 2023 was ended in acquittal vide judgment dated 19.04.2011 in S.C. No.383 of 2008.
5. Similarly, Crime No.55 of 2009 of II - Town Police Station, Mahabubnagar registered against the detenu in W.P. No.13130 of 2023 for the offences under Section - 307 read with 34 of IPC was ended in acquittal vide judgment dated 22.02.2010 in S.C. No.394 of 2009.
6. Crime No.32 of 2008 of II Town Police Station, Mahabubnagar registered against the detenu in W.P. No.13617 of 2023 for the offences punishable under Sections - 148, 302 and 307 read with 34 of IPC and Section - 3 (23) (n) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was ended in acquittal vide judgment dated 04.01.2012 in S.C. No.460 of 2008. Another Crime No.112 of 2014 of I - Town Police Station, Mahabubnagar, registered for the offences punishable under Sections - 147, 148 and 307 read with 149 of IPC was also ended in acquittal vide judgment dated 06.12.2017 in S.C. No.31 of 2015. 4
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7. Crime No.175 of 2006 of II Town Police Station, Mahabubnagar District registered against the detenu in W.P. No.13627 of 2023 for the offences punishable under Sections - 489A, B, C and D of IPC was ended in acquittal vide orders dated 06.06.2012 in S.C. No.259 of 2007.
8. Perusal of the record would also reveal that both applications filed by all the detenus twice seeking bail were dismissed and they continue to be in judicial custody. Further, all the detenus were involved in Crime No.56 of 2023 and the same is pending apart from Crime No.124 of 2013 against the detenu in W.P. No.13304 of 2023. The other crimes referred to above against the individual detenus, however, ended in acquittal.
9. It is contended by learned counsel for the petitioners that the aforesaid Crime No.56 of 2023 was registered against the detenus out of an ill-motive as there is a land dispute between the detenus and the complainant and her relatives in respect of Survey Nos.30, 34, 29, 27, 53, 54, 55, 56 and 58, situated at Allipur Village of Mahabubnagar Rural Mandal. Allegations against them are that they created and forged the documents and sold open plots. Even a Crime No.64 of 5 KL,J & PSS,J W.P. No.13304 of 2023 & batch 2022 for the offences punishable under Sections - 420, 419, 468 and 471 of IPC was also registered against them and the same is under investigation. Thus, the orders of detention under Section - 3 (2) of the Telangana Prevention of Dangerous Activities of Boot-leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders Land- Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986 (for short 'Act, 1986'), have been passed and approved vide G.O.Rt.No.323, dated 28.02.2023 in a mechanical manner.
10. She would further submit that preventive detention of a person is an extreme measure resorted to by the State when ordinary criminal law is found not adequate to control his activities which cause disturbance to public order. In the cases on hand, there is no disturbance caused to public order and it is would utmost disturb the maintenance of law and order. Thus, passing of orders of detention by respondent No.2 based on solitary incident and the consequential 6 KL,J & PSS,J W.P. No.13304 of 2023 & batch confirmation passed by respondent No.1 are illegal and the same are liable to be set aside.
11. She has also placed reliance on the decisions in Smt. Saleti Satyaveni v. The State of Telangana1 rendered by a Division Bench of this Court; Mallada K. Sri Ram v. The State of Telangana2 rendered by the Hon'ble Supreme Court in support of her contentions.
12. On the other hand, learned Special Government Pleader appearing on behalf of the respondents would contend that the Detaining Authority having satisfied with the material available on record and considering the nature of offence and the manner in which it was committed by the detenus passed the orders of detention. He would further submit that two crimes have been registered against the detenu in W.P. No.13304 of 2023. The offences alleged against all the detenus in Crime No.56 of 2023 are punishable under Sections - 120B and 307 read with 34 of IPC and also Section - 25 (1A) of the Arms Act, 1959. The offences committed by the detenus are grave in nature. The Detaining Authority considering that there is every possibility of the detenus committing similar offences in future, which 1 . W.P. No.8873 of 2019, decided on 25.07.2019 2 . 2022 SCC OnLine SC 424 7 KL,J & PSS,J W.P. No.13304 of 2023 & batch would again certainly affect the public order. Therefore, there is no irregularity in passing the orders of detention. He has placed reliance on the common order dated 28.12.2018 passed by a Division Bench of this Court in W.P. Nos.32370 of 2018 & batch.
13. In the grounds of detention, respondent No.2 mentioned the history of the detenus and evidence linking the detenus to the aforesaid crime. However, as discussed above, the aforesaid crime No.56 of 2023 was registered against the detenus for the offences punishable under Sections - 120B and 302 read with 34 of IPS and Section - 25 (1A) of the Arms Act, 1959, while Crime No.124 of 2013 registered against the detenu in W.P. No.13304 of 2023 is also registered for the very same offences.
14. The Hon'ble Supreme Court in Ashok Kumar v. Delhi Administration3 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.
3 . (1982) 2 SCC 403 8 KL,J & PSS,J W.P. No.13304 of 2023 & batch
15. In Sushanta Kumar Banik v. State of Tripura4, the Apex Court held that the preventive detention is a serious invasion of personal liberty and the normal methods open to a person charged with commission of any offence to disprove the charge or to prove his innocence at the trial are not available to the person preventively detained and, therefore, in prevention detention jurisprudence, whatever little safeguards the Constitution and the enactments authorizing such detention provide assume utmost importance and must be strictly adhered to.
16. In Ram Manohar Lohia v. State of Bihar5, 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 4 . 2022 SCC OnLine SC 1333 5 . (1966) 1 SCR 709 9 KL,J & PSS,J W.P. No.13304 of 2023 & batch 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 and the smallest circle represents security of State. It is then easy to see that an act may affect law and order 10 KL,J & PSS,J W.P. No.13304 of 2023 & batch but not public order just as an act may affect public order but not security of the State."
17. Similar view was reiterated by the Apex Court in Arun Ghosh v. State of West Bengal6.
18. In Kanu Biswas v. State of W.B.7, the Apex Court relying on Ram Manohar Lohia5 noted that preventive detention can only be invoked in cases of breach of public order. The Court explained the difference between law and order and public order by stating that public order is said to be affected when the action of the detenu is in the nature of adversely affecting the even tempo of life of the community which causes a general disturbance of public tranquility. The relevant paragraphs are extracted below:
"7. 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, according to the dictum laid down in the above case, is a question of degree and the extent of the reach of the act upon the society. Public order is what the French call "order public"
and is something more than ordinary maintenance of law and order. The test to be adopted in 6 . (1970) 1 SCC 98 7 (1972) 3 SCC 831 11 KL,J & PSS,J W.P. No.13304 of 2023 & batch determining whether an act affects law and order or public order, as laid down in the above case, is:
Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed?
8. The principle enunciated above has been followed by this Court in the case of Nagendra Nath Mondal v. State of West Bengal [(1972) 1 SCC 498] , and Nandlal Roy alias Honda Dulal Roy alias Pagea v. State of West Bengal (WP No. 15 of 1972, decided on April 11, 1972) [(1972) 2 SCC 524] . In the light of what has been observed above, we have no doubt that each one of the incidents of September 26, 1971 and November 4, 1971, was prejudicial to the maintenance of public order. When two passengers are robbed at the point of knife while travelling in a third class compartment of a running train the act of the miscreants affects not only the passengers who are deprived of their valuables but also the other passengers who watch the whole thing in fear as helpless spectators. There is bound to be consequent terror and panic amongst the travelling public. Likewise, attack directed against a police party on the platform of a railway station by exploding bombs is bound to create panic and confusion among the passengers at the railway 12 KL,J & PSS,J W.P. No.13304 of 2023 & batch station. The acts in question in the very nature of things would adversely affect the even tempo of life of the community and cause a general disturbance of public tranquillity."
19. In Banka Sneha Sheela v. State of Telangana8, the Apex Court held as under:
"13. There can be no doubt that for 'public order' to be disturbed, there must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects 'law and order' but before it can be said to affect 'public order', it must affect the community or the public at large."
"24. 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. Consequently, it is unnecessary to go into any of the other grounds argued by the learned counsel on 8 . (2021) 9 SCC 415 13 KL,J & PSS,J W.P. No.13304 of 2023 & batch behalf of the Petitioner. The impugned judgment is set aside and the Detenu is ordered to be freed forthwith. Accordingly, the appeal is allowed."
20. In Mallada K. Sri Ram2, the Apex Court held that 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". Referring to the principle laid down by it in Ram Manohar Lohia5 and Banka Sneha Sheela8, the distinction between a disturbance to law and order and a disturbance to public order was discussed.
21. It was observed by the Apex Court that for the last five years, the Apex Court has quashed over five detention orders under the Telangana Act of 1986 for inter alia incorrectly applying the standard for maintenance of public order and relying on stale materials while passing the orders of detention. At least ten detention orders under the Telangana Act of 1986 have been set aside by the Apex Court in the last one year itself. These numbers evince a callous exercise of the exceptional power of preventive detention by the detaining authorities and the respondent - State. Therefore, the Apex Court directed the respondents therein to take stock of challenges to detention orders pending before the Advisory Board, High Court and 14 KL,J & PSS,J W.P. No.13304 of 2023 & batch the Apex Court and evaluate the fairness of the detention order against lawful standards.
22. In Shaik Nazneen v. The State of Telangana9, the Apex Court set aside the order passed by the Division Bench of this Court confirming the detention order, approved by the State. The said detention order was passed on the ground of detenu involving in four chain snatching cases. It was held that the State is not without a remedy, as in case the detenu is much a menace to the society as is being alleged, then the prosecution should seek for the cancellation of his bail and/or move an appeal to the Higher Court. But definitely seeking shelter under the preventive detention law is not the proper remedy under the facts and circumstances of the case.
23. Referring to the observations made in Mallada K. Sri Ram2 and on examination of the facts of the case, the Apex Court held in paragraph No.12 which is as follows:
"12. There is absolutely no doubt in our mind that the facts and circumstances of the case as alleged in the detention order dated 28.10.2021 though does reflect a law and order situation which can be dealt with under the ordinary law of land, and there 9 . 2022 LiveLaw (SC) 559 15 KL,J & PSS,J W.P. No.13304 of 2023 & batch was absolutely no occasion for invoking the extraordinary powers under the law of Preventive Detention. The reasons assigned by the authority in its detention, justifying the invocation of the provisions of the detention law are that the detenu has been granted bail in all the four cases and since he is likely to indulge in similar crime, hence the order of preventive detention."
24. The Apex Court and this Court time and again held that the detention orders shall be passed in rarest of rare cases and to prevent the detenu from committing similar offences which may disturb the public order.
25. In the present cases, the detaining authority basing on a solitary crime i.e. Crime No.56 of 2023 of II-Town Police Station, Mahabubnagar, registered for the offences punishable under Sections - 20B and 307 read with 34 of IPC and also Section - 25 (1A) of the Arms Act, 1959 against the detenus, passed the orders of detention. As discussed above, the said solitary crime is in respect of a 'land dispute' between the complainant and the detenus. The detenus were arrested in connection with the said crime and they are in judicial custody. Just because a solitary offence has been registered against 16 KL,J & PSS,J W.P. No.13304 of 2023 & batch detenus, that itself does not have any bearing on the maintenance of public order. There is no quarrel with regard to the legal position that detention order can be passed relying on a solitary offence. But, at the same time, Detaining Authority has to consider the nature of offence and the manner in which it was committed, whether it disturbed the public order or not. Detention order cannot be passed in a routine and mechanical manner.
26. The Apex Court as well as this Court time and again held that there is a vast difference between "law and order" and "public order". The offences which are committed against a particular individual fall within the ambit of "law and order". It is only when the public at large is adversely affected by the criminal activities of a person, the conduct of a person is 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 provisions of the Act, 1986 for passing order of detention against an individual. Invoking of such law adversely affects the fundamental right of personal liberty which is guaranteed and protected by Article - 21 of the Constitution of India. 17
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27. Thus, there is no consideration of the aforesaid aspects and the principle laid down by the Apex Court and the Division Benches of this Court in the aforesaid decisions by respondent Nos.2 and 1. Further, the respondents have to invoke/pass detention orders in rarest of rare cases. Therefore, the respondents are not justified in passing the orders of detention and approving the same and, therefore, they are liable to be set aside.
28. All the writ petitions are accordingly allowed and the impugned orders of detention dated 10.04.2023 passed by respondent No.2 and approved by respondent No.1 vide G.O. Rt. No.323, General Administration [Special (Law & Order)] Department, dated 28.02.2023, are hereby set aside. The respondents are directed to set the Detenus, namely 1) Mr. Abdul Ahmed; 2) Mr. Abdul Nawaz; 3) Mr. Md. Rahamath; and 4) Mr. Shaik Asim, who are now detained in Central Prison, Cherlapally, Medchal - Malkajgiri District, free forthwith if they are no longer required in any other criminal case. In the circumstances of the cases, there shall be no order as to costs. 18
KL,J & PSS,J W.P. No.13304 of 2023 & batch As a sequel, the miscellaneous petitions, if any, pending in the writ petitions shall stand closed.
_________________ K. LAKSHMAN, J _________________ P. SREE SUDHA, J 19th June, 2023 Mgr