Telangana High Court
Smt. Shaik Heena Tabasum vs The State Of Telangana on 12 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 Nos.6418 and 8498 of 2022
COMMON ORDER:(Per Hon'ble Dr. Justice Shameem Akther) Since the facts of the case and point for determination in both these writ petitions are identical and since the crimes relied upon by the detaining authority for passing the detention orders impugned in both these writ petitions are similar, both these writ petitions are being taken up together and disposed of by this common order.
2. Writ Petition Nos.6418 and 8498 of 2022 are filed challenging the detention orders vide SB.ID No.90/S1/PD- KMM/2021 and SB.ID No.89/S1/PD-KMM/2021, of even date, dated 22.11.2021, respectively, passed by the respondent No.2- Commissioner of Police, Khammam Commissionerate, whereby, the detenus were detained under Section 3(2) of The Telangana Preventive Detention Act, 1986 (Act 1 of 1986), and the consequential confirmation orders vide G.O.Rt.Nos.345 and 344, of even date, dated 11.02.2022, passed by the respondent No.1.
3. Heard M/s. Bibi Ayesha Mohammed, learned counsel for the petitioners in both these writ petitions, Sri G. Malla Reddy, learned 2 Dr.SA,J & JS,J WP Nos.6418 & 8498 of 2022 Assistant Government Pleader for Home appearing for the learned Additional Advocate General for the respondents in both these writ petitions and perused the record.
4. The case of the petitioners in both these writ petitions is that basing on six criminal cases registered against the detenus herein in the year 2021, i.e., Crime Nos.170/2021, 200/2021 & 201/2021 of Khammam I Town Police Station and Crime Nos.230/2021 and 297/2021 of Khanapuram Haveli Police Station and Crime No.313/2021 of Khammam II Town Police Station, the respondent No.2 passed the impugned detention orders of the even date, dated 22.11.2021. According to respondent No.2, the detenus are 'Goondas', as they have been engaging themselves in unlawful activities and they committed series of house burglaries besides vehicle theft in the Police Station limits of Khammam I Town, Khammam II Town and Khanapuram Haveli of Khammam Police Commissionerate, causing a sense of insecurity and fear in the minds of general public and thereby creating panic and a feeling of insecurity in the minds of general public, which are prejudicial to the maintenance of public order, apart from disturbing the peace and tranquility in the limits of Khammam District, Telangana State. Subsequently, the impugned detention 3 Dr.SA,J & JS,J WP Nos.6418 & 8498 of 2022 orders were confirmed by the Government, vide G.O.Rt.Nos.345 and 344, of even date, dated 11.02.2022, respectively.
5. Learned counsel for the petitioners would contend that the impugned detention orders have been passed in a mechanical manner and without application of mind. Already criminal law was set into motion against the detenus. The detenus were granted bail by the Courts concerned in all the crimes relied upon by the detaining authority. But they were again sent to jail by invoking the draconian preventive detention laws on the apprehension that there is imminent possibility of the detenus again indulging in similar offences, which is unjustified. 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 the Indian Penal Code, the detenus can certainly be tried and convicted under the Penal Code. Thus, there was no need for the detaining authority to invoke the draconian preventive detention law against the detenus. According to the learned counsel, the detaining authority has to be extremely careful while passing a detention order, since the detention ipso facto adversely affects the fundamental right of personal liberty enjoyed by the people under Article 21 of the Constitution of India.
4 Dr.SA,J & JS,J WP Nos.6418 & 8498 of 2022 Thus, the impugned orders are legally unsustainable and ultimately, prayed to allow the Writ Petitions, as prayed for.
6. On the other hand, learned Assistant Government Pleader for Home appearing for the respondents supported the impugned orders and submitted that the detenus are 'Goondas'. They involved in six grave and dangerous offences such as burglaries and committed theft of gold, silver ornaments and other valuables in the Police Station limits of Khammam Police Commissionerate and thereby, creating panic and a feeling of insecurity in the minds of the general public, which are prejudicial to the maintenance of public order, apart from disturbing peace and tranquility in the area. Since the detenus got bail in all the crimes relied upon by the detaining authority, the apprehension of the detaining authority that there is imminent possibility of the detenus indulging in similar offences, is not misconceived. The series of crimes allegedly committed by the detenus were sufficient to cause a feeling of insecurity in the minds of the people at large. Since the modus of committing the crimes was house burglaries and vehicle theft in the police station limits of Khammam Commissionerate, it has created sufficient panic in the minds of the general public. Therefore, the detaining authority was legally justified in passing the impugned detention orders.
5 Dr.SA,J & JS,J WP Nos.6418 & 8498 of 2022 Further, the Advisory Board rendered its opinion that there is sufficient cause for detention of the detenus and on considering the same along with the entire material, the Government confirmed the impugned detention orders vide G.O.Rt.Nos.345 and 344 of even date, dated 11.02.2022. All the mandatory requirements were strictly followed by the detaining authority while passing the impugned detention orders. The impugned orders are legally sustainable and ultimately, prayed to dismiss the Writ Petitions.
7. In view of the submissions made by both the sides, the point that arises for determination in these Writ Petitions is:
"Whether the impugned detention orders vide SB.ID. No.90/S1/PD-KMM/2021 and SB.ID.No.89/S1/PD-KMM/ 2021, of even date, dated 22.11.2021, passed by the respondent No.2 and the consequential confirmation orders vide G.O.Rt.Nos.345 and 344, of even date dated 11.02.2022, passed by the respondent No.1, are liable to be set aside?"
POINT:
8. 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 6 Dr.SA,J & JS,J WP Nos.6418 & 8498 of 2022 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.
9. 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.
10. 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 1 AIR 1966 SC 740 2 (1972) 3 SCC 831 7 Dr.SA,J & JS,J WP Nos.6418 & 8498 of 2022 a disturbance of the 'public order', is a question of degree and extent of the reach of the act upon the Society.
11. In the present cases, the detaining authority, basing on six crimes indicated above, has passed the impugned detention orders of even date, dated 22.11.2021. 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 170/2021 of Sections 457 & Cognizable/ Khammam I Town 27.06.2021 04.07.2021 380 of IPC Non-bailable PS 200/2021 of Sections 379 of Cognizable/ Khammam I Town 19/20.06.2021 13.08.2021 IPC Non-bailable PS 201/2021 of Sections 457 & Cognizable/ Khammam I Town 27.06.2021 13.08.2021 380 of IPC Non-bailable PS 230/2021 of Sections 457 & Cognizable/ Khanapuram Haveli 15.06.2021 22.06.2021 380 of IPC Non-bailable PS 297/2021 of Sections 457 & Cognizable/ Khanapuram Haveli 13.06.2021 13.08.2021 380 of IPC Non-bailable PS 313/2021 of Sections 457 & Cognizable/ Khammam II Town 22.06.2021 09.07.2021 380 of IPC Non-bailable PS
12. As seen from the material placed on record, all the six crimes relied upon by the detaining authority for preventively detaining the detenus relate to house burglaries and vehicle theft. The detenus were arrested in connection with the alleged offences and subsequently, they moved bail petitions in the said crimes and they 8 Dr.SA,J & JS,J WP Nos.6418 & 8498 of 2022 were granted bail by the Courts concerned and released from jail on 01.09.2021. Under these circumstances, the apprehension of the detaining authority that since the detenus were released on bail, there is imminent possibility of their involving in similar offences unless they are 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 hand over the entire case record available against the detenus. 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, in the instant cases, since the detenus were granted bail by the Courts concerned, if it is found that the detenus are involved in further crimes, the prosecution can apprise the same to the Courts concerned and seek cancellation of bail/s. Moreover, criminal law was already set into motion against the detenu. Since the detenus have allegedly committed offences punishable under the Indian Penal Code, the said crimes can be effectively dealt with under the provisions of the Penal Code and there was no need for the detaining authority to invoke draconian preventive detention laws. The detaining authority cannot be permitted to subvert, supplant or 9 Dr.SA,J & JS,J WP Nos.6418 & 8498 of 2022 substitute the punitive law of land, by ready resort to preventive detention.
13. Though there are number of cases registered against the detenus, they relate to house burglaries and theft. So no inference of disturbance of public order can be drawn. The subject cases can certainly be tried under the Penal Code. Thus, this case does not fall within the ambit of 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.
14. For the foregoing reasons, the impugned orders are legally unsustainable and are liable to be set aside.
15. In the result, the Writ Petitions are allowed. The impugned detention orders vide SB.ID.No.90/S1/PD-KMM/2021 and SB.ID. No.89/S1/PD-KMM/2021, of even date, dated 22.11.2021, passed by the respondent No.2, and the consequential confirmation orders vide G.O.Rt.Nos.345 and 344, of even date, dated 11.02.2022, passed by the respondent No.1, are hereby set aside. The respondents are directed to set the detenus, namely Sk.Asif Khan @ Asif, S/o. Arif Khan, and Sk. Naim, S/o. Janimiya, at liberty forthwith, if they are no longer required in any other criminal case.
10 Dr.SA,J & JS,J WP Nos.6418 & 8498 of 2022 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 ____________________ JUVVADI SRIDEVI, J Date: 12.04.2022 MD/SCS