Telangana High Court
Mohammad Khaja vs The State Of Telangana on 25 August, 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.27207 OF 2022
ORDER:(Per Hon'ble Dr. Justice Shameem Akther) Mohammad Khaja, the petitioner, has filed this Habeas Corpus petition on behalf of his brother, Shaik Mohammad Shakir, S/o late Shaik Mohammad Yousuf, the detenu, challenging the detention order vide No.90/PD-CELL/CCRB/RCKD/2022, dated 04.06.2022, passed by the respondent No.2-Commissioner of Police, Rachakonda Commissionerate, 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.1474, General Administration (Spl. (Law & Order)) Department, dated 19.07.2022 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 appearing for the respondents and perused the record.
3. Learned counsel for the petitioner would submit that by relying on six crimes viz., Crime Nos.90 of 2022, 91 of 2022 of 2 Dr.SA,J & EVV,J W.P.No.27207 of 2022 Bhongir Town Police Station, registered for the offences under Sections 120B, 420, 406 and 506 r/w Section 5 of Telangana Protection of Depositors of Financial Establishments Act, 1999, (for short "TPDFE Act") and Crime Nos.94 of 2022, 98 of 2022, 99 of 2022 of Bhongir Town Police Station, registered for the offences under Sections 406 and 420 of IPC and Section 5 of TPDFE Act, and crime No.108 of 2022 of Bhongir Town Police Station, registered for the offences under Sections 120B, 406 and 420 of IPC and Section 5 of TPDFE Act the respondent No.2, passed the impugned detention order, dated 04.06.2022. Subsequently, the impugned detention order was confirmed by the Government, vide G.O.Rt.No.1474, dated 19.07.2022. In all six crimes, first bail petitions moved by the detenu were dismissed. The detenu again moved second bail petitions in all six crimes and the same are pending for orders. Hence, the detenu continues to be in judicial custody, as on the date of passing of the impugned detention order. Therefore, there was no need for the detaining authority to invoke the draconian preventive detention law against the detenu. Hence, the impugned orders are legally unsustainable and ultimately, prayed to allow the Writ Petition, as prayed for.
3 Dr.SA,J & EVV,J W.P.No.27207 of 2022
4. On the other hand, the learned Special Government Pleader appearing for the respondents supported the impugned orders and submitted that the detenu is a 'Financial Offender' and that he has been habitually engaging himself in unlawful acts as a member of the gang and he along with his associates conspired each other and induced innocent general public promising to pay profits on their investments in real estate business and with a dishonest intention and wrongful gain, he collected huge amounts from general public in Bhongiri area and later he neither gave profits nor returned their principal amounts and thereby cheated them. The detenu collected huge amounts running into Rs.3.23 crores from victims in and around of Bhongiri Town and cheated the innocent general public. Thus, he has been acting in a manner prejudicial to maintenance of public order, apart from disturbing the peace, tranquility and social harmony in the society. The series of crimes allegedly committed by the detenu were sufficient to cause a feeling of insecurity in the minds of the people at large. 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.
4 Dr.SA,J & EVV,J W.P.No.27207 of 2022
5. 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.90/PD- CELL/CCRB/RCKD/ 2022, dated 04.06.2022, passed by the respondent No.2 and the consequential confirmation order vide G.O.Rt.No.1474, General Administration (Spl. (Law & Order)) Department, dated 19.07.2022 passed by the Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana, are liable to be set aside?"
POINT:
6. 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.
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7. 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.
8. 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.
9. In the present case, the detaining authority, basing on the six crimes indicated above, has passed the impugned detention order, dated 04.06.2022. We shall present them in a tabular form the date of occurrence, the date of registration of FIRs, the 1 AIR 1966 SC 740 2 (1972) 3 SCC 831 6 Dr.SA,J & EVV,J W.P.No.27207 of 2022 offences complained of and their nature, such as bailable/non- bailable or cognizable/non-cognizable.
Date of Date of Crime No. registration Offences Nature Occurrence of FIR Secs.406 & 420 of IPC and Sections 406, Sec.5 of TPDFEA-
420, 506 and - Cognizable/
90/2022 of Prior to
03.03.2022 120B of I.P.C. Non-Bailable
Bhongir Town PS 03.03.2022
and Section 5 of Secs.120B & 506
TPDFE Act IPC -
Non-cognizable
/Bailable
Secs.406 & 420 of
IPC & Sec.5 of
Sections 406, TPDFEA-
420, 506 and Cognizable/
91/2022 of Prior to
03.03.2022 120B of I.P.C. Non-Bailable
Bhongir Town PS 03.03.2022
and Section 5 of Secs.120B & 506
TPDFE Act IPC -
Non-cognizable
/Bailable
Secs.406 & 420 of
Sections 406
IPC & Sec.5 of
94/2022 of Prior to and 420 I.P.C.
04.03.2022 TPDFEA-
Bhongir Town PS 04.03.2022 and Section 5 of
Cognizable/
TPDFE Act
Non-Bailable
Secs.406 & 420 of
Sections 406
IPC & Sec.5 of
98/2022 of Prior to and 420 of I.P.C.
05.03.2022 TPDFEA-
Bhongir Town PS 05.03.2022 and Section 5 of
Cognizable/
TPDFE Act
Non-Bailable
Secs.406 & 420 of
Sections 406
IPC & Sec.5 of
99/2022 of Prior to and 420 of I.P.C.
05.03.2022 TPDFEA-
Bhongir Town PS 05.03.2022 and Section 5 of
Cognizable/
TPDFE Act
Non-Bailable
Secs.406 & 420 of
IPC & Sec.5 of
Sections 120B,
TPDFEA-
406 & 420 of
108/2022 of Prior to Cognizable/
10.03.2022 I.P.C. and
Bhongir Town PS 10.03.2022 Non-Bailable
Section 5 of
Sec.120B IPC -
TPDFE Act
Non-cognizable
/Bailable
10. As seen from the material placed on record, the impugned detention order is passed by placing reliance on the aforesaid six 7 Dr.SA,J & EVV,J W.P.No.27207 of 2022 crimes, which relate to criminal breach of trust, cheating, criminal conspiracy and criminal intimidation. In all the six crimes relied on by the detaining authority, first bail petitions moved by the detenu were dismissed. The detenu again moved second bail petitions in all the six crimes and the same are pending for orders as on the date of passing of the impugned detention order. Under these circumstances, the satisfaction recorded by the detaining authority that there is every possibility of granting bail to the detenu as the co-accused were already got released on bail and after his release on bail, there is every possibility of indulging in similar prejudicial activities, which would be prejudicial to the maintenance of public order, unless he is prevented from doing so by an appropriate order of detention, is highly misplaced. Moreover, criminal law was already set into motion against the detenu. The State is required to lead substantial evidence and prove the guilt of the detenu in the said six crimes. Since the detenu has committed the offences punishable under the Indian Penal Code and the Telangana Protection of Depositors of Financial Establishments Act, 1999, the detenu can certainly be tried and convicted under the Indian Penal Code and the said special law. The six crimes relied on by the detaining authority do not add up to "disturbing the 8 Dr.SA,J & EVV,J W.P.No.27207 of 2022 public order" and they are confined within the ambit and 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, the detention order as well as the confirmation order passed against the detenu in W.P.No.23688 of 2022 was already set aside by this Court vide order, dated 08.08.2022. The facts and circumstances of the case on hand are akin to the facts and circumstances in W.P.No.23688 of 2022.
11. For the foregoing reasons, the impugned orders are legally unsustainable and are liable to be set aside.
12. In the result, the Writ Petition is allowed. The impugned detention order vide No.90/PD-CELL/CCRB/RCKD/2022, dated 04.06.2022, passed by the respondent No.2 and the consequential confirmation order vide G.O.Rt.No.1474, General Administration (Spl. (Law & Order)) Department, dated 19.07.2022 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 detenu, namely Shaik Mohammad Shakir, S/o late Shaik Mohammad Yousuf, at 9 Dr.SA,J & EVV,J W.P.No.27207 of 2022 liberty forthwith, if he 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 ______________________ E.V.VENUGOPAL, J Date: 25.08.2022 ssp