Telangana High Court
Rhukva Swaroopa vs The State Of Telangana on 3 March, 2021
Author: Shameem Akther
Bench: A.Rajasheker Reddy, Shameem Akther
THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY
AND
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
WRIT PETITION No.19786 of 2020
ORDER:(Per the Hon'ble Dr. Justice Shameem Akther) Bhukya Swaroopa, the petitioner, has filed the present Writ Petition on behalf of her son, Bhukya Thirupathi, S/o. Raju, the detenu, challenging the detention order, dated 29.10.2020, passed by the respondent No.2-District Collector, Jayashankar Bhupalpally District.
2. Heard the learned counsel for the parties and perused the record.
3. Briefly, the facts of the case are that by relying on three criminal cases registered against the detenu in C.O.R.Nos.146/2020, 190/2020 and 272/2020 of Prohibition & Excise Station, Bhupalapally, the respondent No.2-District Collector, Jayashankar Bhupalapally District, passed the impugned detention order, dated 29.10.2020. According to the respondent No.2, the detenu is a 'bootlegger' as he has been repeatedly indulging in clandestine business of possession, transportation and sale of I.D. Liquor and raw material used for preparation of illicitly distilled liquor in contravention of the provisions under Section 7A read with 8(e) of A.P. Prohibition Act, 1995, and abetting the commission of the said illegal activities, thus causing widespread danger to public order, health and tranquility in Bhupalapally Mandal and surrounding Mandals, thereby affecting and damaging the very societal fabric and health of the people at large ARR,J & Dr.SA,J W.P.No.19786 of 2020 2 and adversely affecting the maintenance of public order. Hence, this Writ Petition before this Court.
4. Sri A.Jagan, learned counsel for the petitioner, has raised the following contentions before this Court:
Firstly, that relying only on three cases registered against the detenu in the year 2020, the impugned detention order is passed.
Secondly, the alleged cases do not add up to "disturbing the public order". They are confined within the ambit and scope of the word "law and order". Since the offences alleged are under the special law, the detenu can certainly be tried and convicted under the special law. Thus, there was no need for the detaining authority to invoke the draconian preventive detention laws. Hence, the impugned detention order tantamounts to colourable exercise of power.
Lastly, learned counsel for the petitioner would submit that the detenu was not present at the time of conducting raid by the police.
The detenu was granted bail in the said crimes by the Courts concerned. The detaining authority, without taking into consideration the grant of bail in the said crimes, passed the impugned detention order. Thus, the impugned detention order is legally unsustainable.
5. On the other hand, Sri G.Mallareddy, the learned Assistant Government Pleader for Home, representing learned Additional Advocate General, appearing for the respondents, would submit that in all the offences relied upon by the detaining authority, the detenu was found at the scene of offence and on seeing the Excise officials, he fled away from the scene of offence, leaving the contraband. In ARR,J & Dr.SA,J W.P.No.19786 of 2020 3 COR No.146 of 2020, 20 KGs of Jaggery, 5 litres of I.D.Liquor in a plastic can and 1 Kg Alum was seized. In COR No.190 of 2020, 10 litres of I.D.Liquor and a Motor Cycle (TVX MAS 100R) bearing registration No.AP-36-L-1886, which was used for transporting the contraband, were seized. In COR No.272 of 2020, 5 litres of I.D.Liquor, 250 Litres of F.J. Wash were seized. Since the detenu is repeatedly indulging in the clandestine business of possession, manufacture and sale of I.D. Liquor, the impugned detention order was passed by the detaining authority. Subsequently, the impugned detention order was confirmed by the Principal Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana, vide G.O.Rt.No.63, General Administration (Spl. (Law & order)) Department, dated 07.01.2021. In all the three crimes, the detenu was not arrested and only notices under Section 41A Cr.P.C. were served on him. As such, there is no basis for the allegations that the detenu has not involved in any offence and he got bail in the said crimes. The series of crimes allegedly committed by him were sufficient to cause a feeling of fear and insecurity among the people and widespread danger to public health. Therefore, the detaining authority was legally justified in passing the impugned detention order 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 detention order, dated 29.10.2020, passed by the respondent No.2 and the confirmation order, dated 07.01.2021, passed by the Principal Secretary to Government, General ARR,J & Dr.SA,J W.P.No.19786 of 2020 4 Administration (Spl. (Law & Order)) Department, Government of Telangana, 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 "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, then such conduct of that 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 draconian preventive detention laws against an individual. For the invoking of such law adversely affects the fundamental right of personal liberty, which is protected and promoted by Article 21 of the Constitution of India. Hence, according to the Hon'ble Apex Court, the detaining authority should be wary of invoking the immense power under the Act.
8. In the case of 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. The Hon'ble Supreme Court has observed as under:
"54. We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detained public disorder is the apprehended result. Disorder is no doubt prevented by the maintenance of 1 AIR 1966 SC 740 ARR,J & Dr.SA,J W.P.No.19786 of 2020 5 law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression "public order' take in every kind of disorders or only some of them? 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 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."
9. In the case of Kanu Biswas v. State of West Bengal2, the Hon'ble Supreme Court has opined as under:
"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 the extent of the reach of the act upon the society. Public order is what the French call 'order publique' and is something more than ordinary maintenance of law and order. The test to be adopted in 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 2 (1972) 3 SCC 831 ARR,J & Dr.SA,J W.P.No.19786 of 2020 6 merely an individual leaving the tranquility of the society undisturbed?"
10. In the present case, the detenu allegedly involved in three criminal cases vide C.O.R.Nos.146 of 2020, 190 of 2020 and 272 of 2020. We shall present them in a tabular column the date of occurrence, the date of registration of FIRs, the offences complained of and their nature, such as bailable/non-bailable or cognizable/non- cognizable.
Date of
Sl. Date of registration
COR No. Occurrence Offences Nature
No.
of FIR
146/2020 of P&E Section 7(A) r/w Cognizable/
1. Station, 20.06.2020 20.06.2020 8(e) of APP Act Bailable
Bhupalapally 1995
Sections 7(A) r/w
190/2020 of P&E 8(e) of APP Act Cognizable/
2. Station, 07.08.2020 07.08.2020 1995 and 50-A of Bailable
Bhupalapally A.P.Excise Act,
1968
272/2020 of P&E Section 7(A) r/w Cognizable/
3. Station, 20.10.2020 20.10.2020 8(e) of APP Act Bailable
Bhupalapally 1995
11. It is the contention of the learned counsel for the petitioner that though the detenu was released on bail in the aforesaid crimes, the detaining authority has passed the impugned detention order by relying on the aforesaid crimes without any basis. Whereas, in the counter filed by respondent No.2, it is stated that in all the above crimes, the detenu was not arrested and only notices under Section 41A Cr.P.C. were served on the detenu and investigation is still pending. It is to be noted that with regard to the offence allegedly committed by the detenu, normal criminal law was already invoked against him and as per the averments in the counter, notices under Section 41A Cr.P.C. were issued to the detenu. If the detenu violates any of the conditions imposed in the said notices, it is for the police ARR,J & Dr.SA,J W.P.No.19786 of 2020 7 concerned to arrest the detenu by recording the reasons in writing. Under these circumstances, the apprehension of the detaining authority that there is imminent possibility of the detenu committing similar offence, which is detrimental to the public order, unless he is prevented from doing so by an appropriate order of detention, is highly misplaced. Moreover, in the cases relied on by the detaining authority, the detenu alleged to have committed offences punishable under the special law. So, it can be safely concluded that the said crimes can be dealt with under the provisions of the special law. The detaining authority cannot be permitted to invoke the preventive detention laws, in order to breach the liberty of an individual.
12. Grave as the offences may be, they relate to possession, transportation and sale of I.D.Liquor. More particularly, when the Investigating Officer had issued notice under Section 41A of Cr.P.C. and not resorted to remand the detenu to judicial custody to prevent further commission of offence/s of similar nature. Under these circumstances, no inference of disturbance of public order can be drawn. These cases can be tried under the normal criminal law. And, if convicted, can certainly be punished by the Court of law. Thus, these cases do not fall within the ambit of the words "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. Therefore, for the reasons stated above, the impugned orders are legally unsustainable.
13. In the result, the Writ Petition is allowed. The impugned detention order vide Rc.No.15/2020/P&E/BPL/B2-PD1, dated 29.10.2020, passed by respondent No.2, and the consequential ARR,J & Dr.SA,J W.P.No.19786 of 2020 8 confirmation order vide G.O.Rt.No.63, General Administration (Spl. (Law & Order)) Department, dated 07.01.2021, passed by the Principal 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 Bhukya Thirupathi, S/o. Raju, at liberty forthwith, if he is no longer required in any other criminal case.
As a sequel, the miscellaneous petitions, pending if any, shall stand closed. There shall be no order as to costs.
_______________________ A. RAJASHEKER REDDY, J ______________________ Dr. SHAMEEM AKTHER, J 03rd March, 2021.
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