Telangana High Court
Sammaiah Penukula vs The State Of Telangana on 21 September, 2023
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE K. SUJANA
WRIT PETITION Nos.16673 OF 2023
ORDER:(Per Hon'ble Sri Justice K. Lakshman) Heard Mrs. Ravula Sowmya Reddy, learned counsel for the petitioner and Mr. Mujib Kumar Sadasivuni, learned Special Government Pleader representing learned Additional Advocate General appearing on behalf of the respondents.
2. This writ petition is filed to issue a writ of habeas corpus directing respondent No.3 to produce the detenu viz.,, Puli Bharadhwaj S/o Rajaiah, now detained in Central Prison, Cherlapally, Medchal - Malakjgiri District, and to order his release forthwith by setting aside the detention orders dated 03.05.2023 passed by respondent No.2 and the consequential confirmation order, if any declaring it as illegal.
3. Respondent No.2 passed the detention order dated 03.05.2023 against the detenu under the provisions of Section - 3 (2) of the Telangana Prevention of Dangerous Activities of Boot-leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders Land- 2
KL,J & SKS,J W.P. No.16673 of 2023 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 (As amended in Act No.13 of 2018) (for short Act No.13 of 2018) under the category of 'Goonda' as defined under Section - 2 (g) of the Act.
4. The impugned detention order dated 03.05.2023 is passed by respondent No.2 relying on the following crimes:
Crime No. Offences Allegations levelled Remarks 39/23 of Sec.379 IPC & Theft of copper wire coil of Bail petition was Manthani PS Sec.136 (1) of 150 Kgs. from Agriculture dismissed.
TS Electricity Transformers. Police laid the charge Act. sheet and CC No.18/23 Entire stolen property was is pending for trial. seized.
49/23 of -do- -do- 310 Kgs. No bail petition moved
Manthani PS C.C.No.19/23 is
pending for trial
50/23 of -do- -do- 30 Kgs. -do-
Manthani PS C.C.No.17/23 is
pending for trial
51/23 of -do- -do- 40 Kgs. -do-
Manthani PS C.C.No.16/23 is
pending for trial
5. The detaining authority relying on the aforesaid four (04) crimes issued the impugned detention order dated 03.05.2023. The 3 KL,J & SKS,J W.P. No.16673 of 2023 allegations levelled against him are that he has indulged in commission of theft of copper coils by damaging agricultural electric transformers and causing huge loss to the public properties and also small and marginal farmers in the limits of three (03) Districts i.e., Peddapalli, Mancherial and Jayashankar - Bhupalpalli. Thus, the detenu created panic in the minds of the small and marginal farmers.
6. Further, the detenu was also involved in thirty seven (37) crimes relating to theft of copper coils by damaging agricultural electric transformers during the years 2022 and 2023, and the details of which were also specifically mentioned in the grounds for detention. In fact, the detenu indulged in a series of similar offences numbering (41), causing huge loss to the public properties and thereby hampered agricultural operations and caused huge loss to small and marginal farmers in the locality which led to farmers' agitation thereby creating large scale of fear and panic among the farmers and general public adversely affecting 'public order', However, relying on the aforesaid four (04) crimes only, the detaining authority passed the impugned detention order. The modus operandi of the detenu in commission of the offences is also specifically mentioned in the detention order and grounds of detention.4
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7. Learned counsel for the petitioner, would submit that the impugned detention order was issued while detenu was in Jail. The impugned detention order was passed after two (02) months. Therefore, there is no consideration of entire material and the subjective satisfaction by the detaining authority while issuing the impugned detention order.
i) In support of his contentions, learned counsel for the petitioner relied upon the decision in i) Kolipaka Swapna v. The State of Telangana 1; ii) Geetha Mounica v. The State of Telangana 2; iii) Khaja Bilal Ahmed v. State of Telangana 3; iv) Mallada K. Sri Ram v. The State of Telangana 4; v) Banka Sneha Sheela v. State of Telangana 5 and vi) Shaik Nazneen v. The State of Telangana 6.
8. On the other hand, learned Special Government Pleader representing learned Additional Advocate General would submit that the allegations levelled against the detenu are serious in nature and he is a 'habitual offender' involved in many cases and other serious 1 . W.P. No.17056 of 2021, decided on 16.11.2021 2 . WP No.46606 of 2022, decided on 24.02.2023 3 . 2019 SCC OnLine SC 1657 4 . 2022 SCC OnLine SC 424 5 . 2021 AIR SC 3656 6 . 2022 LiveLaw (SC) 559 5 KL,J & SKS,J W.P. No.16673 of 2023 offences at various places, the details of the same are specifically mentioned in the counter. Considering the seriousness of offences, the concerned Court rejected the bail application filed by the detenu in one crime and in the remaining three (03) crimes, the detenu did not even move bail applications. The detaining authority, considering the entire material available on record and after arriving at the subjective satisfaction only passed the detention order in order to prevent the detenu from committing similar offences and the same was approved by respondent No.1 vide G.O.Rt.No.671, G.A. (Spl. Law & Order) Department, dated 08.05.2023. Subsequently, the detenu was referred to the Advisory Board, which in turn having heard both the detenu and the Investigating Officer, formed an opinion and sent to the Government. Thereafter, the Government passed confirmation order vide G.O.Rt.No.864, dated 15.06.2023 for a period of twelve (12) months from the date of detention i.e., 03.05.2023. Thus, there is no error in it.
i) He has also placed reliance on the principle laid down by the Hon'ble Supreme Court in Vijay Kumar v. Union of India 7; Smt. K. 7 . (1988) 2 SCC 57 6 KL,J & SKS,J W.P. No.16673 of 2023 Aruna Kumari v. Government of Andhra Pradesh 8 and Sunila Jai v. Union of India 9.
9. Perusal of the record would reveal that the detenu along with his six (06) associates, who were working as private drivers, formed themselves into a gang along with two (02) juveniles (students) and decided to earn easy money by committing theft of copper coils from agricultural electric transformers by dividing into (02) Gangs and started committing theft of copper coils from electric transformers in the limits of Peddapalli, Mancherial and Jayashankar - Bhupalpalli District. For the said purpose, they got engaged two (02) TATA Ace Vehicles bearing Nos.TS19-T-8604 and AP15-TV-1735, Two Axes and Four Spanners. In pursuance of their plan, the detenu and his associates were moving in the outskirts of Eklaspur and Nagepalli Villages on the I/N of 07/08.02.2023 and noticed five (05) electric transformers. During power shut down time, they broke opened the transformers with axes and spanners and committed theft of copper coils weighing 150 KGs and decamped with the booty. Then, they shifted the copper coils and concealed in Eklaspur Forest Area. Later, 80 Kgs. copper coils sold to receiver, Thirupati for Rs.32,000/- @ 8 . (1988) 1 SCC 296 9 . (2006) 3 SCC 321 7 KL,J & SKS,J W.P. No.16673 of 2023 Rs.400/- per Kg. and expensed the money for their lavish life. On 04.03.2023 at 0700 hours, the detenu and his associates were apprehended at Eklaspur Forest check post along with the aforesaid TATA Ace vehicle while shifting the stolen copper coils. The said acts of the detenu created alarm panic in the minds of common people, small and marginal farmers within the limits of the aforesaid three Districts. It certainly disturbs 'public order'. The detenu is a habitual offender and is a 'Goonda' as defined in Clause - (g) of Section - 2 of the Act No.13 of 2018. In all the aforesaid four (04) crimes which were relied upon by the detaining authority while issuing detention order, the Investigating Officers have completed investigation and laid the charge sheets and C.C. numbers were assigned and the same are pending for trial. In the aforesaid crimes except Crime No.39 of 2023, the detenu did not even move bail application. Further, in Crime No.39 of 2023, the bail application filed by the devenu was dismissed. The detenu is in judicial remand.
10. It is relevant to note that in all the aforesaid crimes, the allegations are similar. Thus, there are serious allegations against the detenu and the offences committed by him are grave in nature. 8
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11. Learned counsel for the petitioner relied upon the decision in Kolipaka Swapna1 rendered by a Division Bench of this Court, wherein on the complaint lodged by Singareni Collieries Company Limited (SCC5rL), cases were registered against the detenus therein. The detaining authority relied upon the three (03) crimes registered against the detenus. Therefore, this Court held that there was no disturbance to the 'public order' and it is only affecting 'law and order' since all the three (03) crimes were registered on the complaint lodged by SCCL. Whereas, in the present case, the detenu has committed the aforesaid crimes by committing theft of copper coil by damaging agricultural electric transformers and caused huge loss to the small and marginal farmers. Thus, in the present case, the acts committed by the detenu and the modus operandi adopted by him in commission of offences certainly caused disturbance to the 'public order'. Therefore, the aforesaid decision is inapplicable to the present case.
12. Referring to the order in Geetha Mounica2 passed by another Division Bench of this Court, learned counsel for the petitioner would submit that issuance of detention order while detenu was in judicial custody is illegal.
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13. In view of the aforesaid discussion, it cannot be said that the acts of the detenu did not create disturbance in public order. The manner in which he has committed the offences and nature of offences would reveal that it certainly disturbs the public order. Therefore, the decision in Khaja Bilal Ahmed3 relied by the petitioner is inapplicable to the facts of the present case.
14. In Mallada K. Sri Ram4, the Apex Court considering the fact that only two (02) crimes were registered against the detenu and he was granted bail on imposition of certain conditions, and there was no disturbance to the public order, set aside the detention order. In the said cases, two (02) crimes were registered for the offences punishable under Sections - 408, 420, 506 and 120B of IPC. Whereas, in the present case, the detaining authority relied upon the aforesaid four (04) crimes and the offences registered against the detenu are serious and grave in nature which would affect the public order on account of modus operandi adopted by him. Therefore, the facts of the said case are different to the facts of the present case.
15. In Banka Sneha Sheela5, relied upon by the learned counsel for the petitioner, wherein the detenu cheated relatable 10 KL,J & SKS,J W.P. No.16673 of 2023 persons, the Apex Court held that there was no disturbance to the public order and set aside the detention order by declaring the same as illegal. But the facts of the said case are different from the facts of the present case.
16. In Shaik Nazneen6, the offences registered against the detenu therein are punishable under Sections - 392 and 411 read with 34 of IPC and that the detaining authority did not justify that the act of the detenu therein would be prejudicial to the maintenance of public order. Whereas, in the present case, the detaining authority has come to a subjective satisfaction holding that the acts of the detenu are prejudicial to the maintenance of public order. Therefore, the facts of the case in the said decision and the facts of the present case are different.
17. It is relevant to note that in Sunila Jai9 relied upon by learned Special Government Pleader, the Apex Court relying on the principle laid down in M. Ahamedkutty v. Union of India 10 and P.U. Abdul Rahiman v. Union of India 11 categorically held that subjective satisfaction of detaining authority and supply of copies to detaining authority of bail application and order thereon granting bail 10 . 1990 SCC (2) 1 11 . 1991 (2) SCC 274 11 KL,J & SKS,J W.P. No.16673 of 2023 would depend upon facts and circumstances of each case. If the bail application contained material facts which detaining authority was required to take into consideration, then copy thereof must be furnished to it. If order granting bail containing certain conditions pursuant to or in furtherance of which detenu may or may not flee from justice, that may be a relevant consideration for detaining authority for which bail application and order thereon should be furnished to detaining authority. But, if application for bail was based on the ground that the offence complained of was bailable under provisions of relevant Act and bail was granted on that ground alone, copy of the application need not be furnished to detaining authority since whether an offence is bailable or not under a provision of law is presumed to be known to Court and/or detaining authority. Only relevant and vital documents are required to be supplied and copy of the application for bail is not such a vital document. Non-furnishing of copy of bail application to detaining authority in such case, especially when copy thereof had been furnished to detenu, could not be said to have impaired subjective satisfaction of the detaining authority.
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18. It is also relevant to note that in Vijay Kumar7, the detention order was passed when the detenu was in Jail. Considering the said facts, the Apex Court held that though the detenu is in Jail, the impugned detention order can be passed relying on the facts and circumstances of the case and also considering the nature of offences and manner in which it was committed.
19. In Smt. K. Aruna Kumari8, the Apex Court held that this Court cannot examine probative value of evidence available to the detaining authority.
20. In Vijay Narain Singh v. State of Bihar 12, a three Judge Bench of the Apex Court had an occasion to deal with the expression 'habitually' and held that the expression 'habitually' would mean 'repeatedly' or 'persistently' implying a thread of continuity, stringing together similar repetitive acts, and a single act or omission would not characterize as an act of 'habitual'. The Apex Court was of the opinion that to qualify as a 'habit', a person must have grown accustomed to leading a life of crime, whereby it would be a force of habit, inherent or latent, in an individual with a criminal instinct, with 12 . (1984) 3 SCC 14 13 KL,J & SKS,J W.P. No.16673 of 2023 a criminal disposition of mind, that makes him as dangerous to society in general.
21. In the light of the principle laid down in the aforesaid decisions, the decisions relied upon by learned counsel for the petitioner, are inapplicable to the facts of the present case.
22. As discussed above, in the present cases, the detenu has divided into two (02) gangs and committed the aforesaid offences i.e., theft of copper coils by damaging agricultural electric transformers and causing huge loss to the public properties and also small and marginal farmers in the limits of three (03) Districts i.e., Peddapalli, Mancherial and Jayashankar - Bhupalpalli. The detenu was also involved in (41) crimes previously. The detaining authority having considered the entire material available on record and on arriving at subjective satisfaction passed the impugned detention order under the category of 'goonda' as defined in clause - (g) of Section - 2 of the Act No.13 of 2018, and the same was approved by respondent No.1 vide G.O.Rt.No.671, G.A. (Spl. Law & Order) Department, dated 08.05.2023 and confirmed by the Government vide G.O.Rt.No.864, dated 15.06.2023 for a period of twelve (12) months from the date of detention i.e., 03.05.2023.
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23. Section - 2 (g) of the Act No.1 of 2018 defines "Goonda", which means a person, who either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the IPC.
24. While passing the detention order, the detaining authority not only considered the modus operandi of the detenu in commission of offences, but also considered the allegations levelled against the detenu which are grave and serious in nature. The detaining authority also considered the nature of offences and the manner in which the same were committed. Therefore, in order to prevent the detenu from committing similar offences passed the impugned detention order.
25. The Apex Court time and again held that this Court has to consider facts and circumstances of each case on case to case basis. Thus, according to this Court, there is no irregularity in passing the impugned detention order. The petitioner failed to make out any case to set aside the impugned detention order. Therefore, the present writ petition fails and the same is liable to be dismissed. 15
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26. The present writ petition is accordingly dismissed. In the circumstances of the cases, there shall be no order as to costs.
As a sequel, the miscellaneous petitions, if any, pending in the writ petition shall stand closed.
_________________ K. LAKSHMAN, J _________________ K. SUJANA, J 21st September, 2023 Mgr