Telangana High Court
Kanukala Malla Reddy vs The State Of Telangana And 4 Others on 22 June, 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 No.11458 OF 2022
ORDER:(Per Hon'ble Dr. Justice Shameem Akther) Mr. Kanukala Malla Reddy, the petitioner, has filed this Habeas Corpus petition on behalf of his daughter, Kanukala Pallavi Reddy, W/o. Surender Reddy, the detenue, challenging the detention order vide No.24/PD-CELL/CCRB/RCKD/2022, dated 19.02.2022, passed by the respondent No.2, whereby, the detenue was detained under Section 3(2) of the Telangana Preventive Detention Act, 1986 (Act 1 of 1986), and the consequential confirmation orders passed by the Government.
2. Heard the learned counsel for the petitioner, learned Assistant Government Pleader for Home appearing for the respondents and perused the record.
3. The case of the petitioner is that basing on five (5) crimes viz., Crime Nos.912/2021, 927/2021, 1011/2021 of Jawaharnagar Police Station and 864/2021 & 885/2021 of Kushaiguda Police Station, Rachakonda Commissionerate, the respondent No.2 passed the impugned detention order, dated 19.02.2022. According to respondent No.2, the detenue is a 'White Collar Offender'. She had been habitually engaging herself in unlawful acts and indulging in Dr.SA,J & JS, J 2 W.P.No.11458 of 2022 committing cheating offences. The detenue, along with her associate, hatched a plan to cheat innocent people in order to make easy money and in execution of said plan, she opened Nitya Motors Company at Dammaiguda and its branches at A.S.Rao Nagar and other parts of Hyderabad and offered to provide two wheelers at cheaper rates and thus collected huge amounts from the gullible public and duped them. The unlawful activities of the detenue are creating large scale fear and panic among the general people, thus adversely affecting the public order.
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 detenue. Out of the five (5) crimes relied by the detaining authority for preventively detaining the detenue, in two crimes (Crime Nos.912/2021 and 927 of 2021 of Jawaharnagar Police Station), the detenue was served with notice under Section 41A of Cr.P.C. and in the remaining three crimes the detenue was granted bail by the Court concerned. But he was again sent to jail by invoking the draconian preventive detention laws on the apprehension that there is imminent possibility of the detenue indulging in similar prejudicial activities again, which would be detrimental to maintenance of public order. The alleged crimes do Dr.SA,J & JS, J 3 W.P.No.11458 of 2022 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 and special laws, the detenue can certainly be tried and convicted under the penal code and special laws. Thus, there was no need for the detaining authority to invoke the draconian preventive detention law against the detenue. 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 Assistant Government Pleader for Home appearing for the respondents supported the impugned orders and submitted that the detenue is a 'White Collar Offender'. She has induced and collected huge amounts from the gullible general public on the pretext of giving 30% to 40% discount on purchase of new two wheeler motorcycles and later, she neither delivered vehicles nor returned their amounts and thereby cheated them and absconded with the amount so collected. The unlawful activities of the detenue are adversely affecting public order. Since the detenue was simply served with notice under Section 41A of Cr.P.C. in two crimes and since she was granted bail in the remaining three crimes relied by the detaining authority, the apprehension of the detaining authority that there is imminent possibility of the detenue indulging in similar offences, is not misconceived. The Dr.SA,J & JS, J 4 W.P.No.11458 of 2022 series of crimes allegedly committed by the detenue were sufficient to cause a feeling of insecurity in the minds of the people at large. Since the modus of committing the crimes was cheating the gullible people on the pretext of giving huge discounts on new two wheeler vehicles by introducing bogus multi-level marketing schemes, 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, this writ petition is filed even before the matter is considered by the Advisory Board and hence, this writ petition is premature and is liable to be dismissed. 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.24/PD-CELL/CCRB/RCKD/2022, dated 19.02.2022, passed by the respondent No.2, and the consequential confirmation orders passed by the Government are liable to be set aside?"
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 Dr.SA,J & JS, J 5 W.P.No.11458 of 2022 "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. Sta9te of Telangana1, the Hon'ble Apex Court held as follows:
"12. While it cannot seriously be disputed that the Detenue 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 Detenue 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 because the Detenue 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 Detenue, 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.1
(2021) 2 Supreme Court Cases 415 Dr.SA,J & JS, J 6 W.P.No.11458 of 2022
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 Detenue, 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 detenue was released on bail on 8 January 2021 and detained with effect from 26 June 2021. The nature of the allegations against the detenue 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 FIRs which were registered against the detenue are capable of being dealt by the ordinary course of criminal law."
(emphasis supplied)
10. In the present case, the detaining authority, basing on five (5) crimes indicated above, has passed the impugned detention order, dated 19.02.2022. We shall present them in a tabular form the date of occurrence, the date of registration of FIR, the offence complained 2 2022 SCC Online SC 424 3 (2018) 12 Supreme Court Cases 150 4 AIR 1966 SC 740 Dr.SA,J & JS, J 7 W.P.No.11458 of 2022 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
912 of 2021 of Prior to Cognizable/
17.10.2021 Section 420 of IPC
Jawaharnagar PS 17.10.2021 Non Bailable
927/2021 of Prior to Cognizable/
20.10.2021 Section 420 of IPC
Jawaharnagar PS 20.10.2021 Non Bailable
Sections 406, 420
of IPC, Sections 3,
4 and 5 of Prize,
Chits and Money
1011/2021 of Prior to Cognizable/
11.11.2021 Circulationi
Jawaharnagar PS 11.11.2021 Non Bailable
Scheme (Banned)
Act, 1978 and
Section 5 of
APPDFE Act, 1999
864/2021 of Prior to Sections 406 & 420 Cognizable/
13.11.2021
Kushaiguda PS 13.11.2021 of IPC Non Bailable
Sections 420, 206
of IPC, Sections 3, Section 206 of IPC:
4 and 5 of Prize, Non-cognizable
Chits and Money Bailable.
885/2021 of Prior to
20.11.2021 Circulationi Remaining
Kushaiguda PS 20.11.2021 offences:
Scheme (Banned)
Act, 1978 and Cognizable/
Section 5 of Non Bailable
APPDFE Act, 1999
11. As seen from the material placed on record, all the five (5) crimes relied upon by the detaining authority for preventively detaining the detenue relate to cheating, criminal breach of trust, fraudulent removal or concealment of property to prevent its seizure etc. In two crimes, i.e., Crime Nos.912/2021 and 927/2021, as the offences alleged therein are punishable with imprisonment for a term which is less than seven years, notices under Section 41A of Cr.P.C. have been issued to the detenue. In the remaining three crimes, the detenue was arrested in connection with the said crimes and Dr.SA,J & JS, J 8 W.P.No.11458 of 2022 subsequently, she was granted bail by the Courts concerned in the said three crimes. The subjective satisfaction recorded by the detaining authority reads as follows:
"Consequent of bail order granted therein, you were released from jail vide Release order Proceedings Nos.1) 209/2022, dt:05-02-2022, 2) 116/2022 dt:
14-02-2022 and 3) 169/2022, dt: 14-02-2022.
I have perused all the conditions of bail and however, those conditions do not affect of passing the order of detention.
Considering the entire material on record including release order therein, having believed strongly that the cases registered against you under the ordinary law have no deterrent effect and you are not amenable to ordinary law as you are continued to indulge in similar activities though criminal cases are reported and in view of the above facts and circumstances, having satisfied that your presence of time being is not safe in the interest of society. As such, there is imminent possibility of indulging in similar prejudicial activities again, which would be prejudicial to the maintenance of public order, unless you are prevented from doing so by an appropriate order or detention."
If the State is aggrieved by granting of bail to the detenue, 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 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 detenue, if set free, will continue to cheat gullible persons, 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 Dr.SA,J & JS, J 9 W.P.No.11458 of 2022 detenue. Since the detenue has allegedly committed offences punishable ui1nder the Indian Penal Code and Special laws, the said crimes can be effectively dealt with under the provisions of the Penal Code and 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.24/PD-CELL/CCRB/RCKD/2022, dated 19.02.2022, passed by the respondent No.2, and the consequential orders passed by the Government, are hereby set aside. The respondents are directed to set the detenue, namely Smt. Kanukula Pallavi Reddy, W/o. Surender Reddy, at liberty forthwith, if she is no longer required in any other criminal case.
Dr.SA,J & JS, J 10 W.P.No.11458 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 22nd June, 2022 MD / BVV