Telangana High Court
Smt. T. Usha Bhai vs The State Of Telangana on 9 November, 2022
Author: A.Abhishek Reddy
Bench: A.Abhishek Reddy, Juvvadi Sridevi
HIGH COURT FOR THE STATE OF TELANGANA
THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
AND
THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
WRIT PETITION No.34934 of 2022
Date : 09-11-2022.
Between :
Smt. T. Usha Bhai ... Petitioner
and
The State of Telangana,
Rep. by its Principal Secretary,
General Administration (Spl. (Law & Order) Department,
Secretariat, Hyderabad,
and others
... Respondents
Counsel for the petitioner: Sri L. Ravi Chander,
learned Senior Counsel
for Sri P. Shashi Kiran,
learned counsel for the petitioner
Counsel for the respondents: The learned Advocate General
The Court made the following:
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WP No. 34934 of 2022
ORDER:(Per the Hon'ble Sri Justice A.Abhishek Reddy) Smt. T. Usha Bhai, the wife of the detenu viz., T. Raja Singh Lodh @ Raju Singh @ Raja Singh, has filed the present Writ Petition, challenging the Detention Order passed by 2nd respondent, who by exercising the powers conferred under Section 3 (2) of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land 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 (in short, 'the Preventive Detention Act'), had issued proceedings vide SB(1) No.156/PD-1/HYD/2022, dated 25.08.2022, and approved by the 1st respondent vide G.O.Rt.No.1651 General Administration (Spl. {Law & Order}) Department, dated 26.08.2022 and confirmed vide G.O.Rt.No.1977 General Administration (Spl. {Law & Order}) Department, dated 19.10.2022, alleging that the detenu has been engaging himself in unlawful acts of causing communal disturbances with his provocative speeches and thereby affecting the public order at large. The ground on which the impugned detention order is passed by the 2nd respondent is that the detenu 3 AAR, J & JS, J WP No. 34934 of 2022 was mainly involved in three crimes viz., Crime Nos.68 and 261 of 2022 of Mangalhat Police Station and Crime No.71 of 2022 of Shahinayathgunj Police Station.
2) It is the case of the petitioner that the detention order is passed without application of mind, in a hasty manner and without there being any subjective satisfaction of the authority, who passed the detention order. That the impugned detention order is passed only to get over the order of the learned XIV Additional Chief Metropolitan Magistrate, who has rejected the request of the police to remand the detenu to judicial custody. That the detenu was produced before the learned XIV Additional Chief Metropolitan Magistrate, Hyderabad, in connection with crime No.261 of 2022, and the learned Metropolitan Magistrate has ordered for release of the detenu on submission of personal bond, and imposed certain conditions. Further, in connection with crime Nos.68 of 2022 of Mangalhat Police Station and 71 of 2022 of Shahinathagunj Police Station, the detenu was served with notice under Section 41-A Cr.P.C. only on 25.08.2022. That the detenu is being continued in jail due to passing of the impugned detention order, which is passed only with the sole purpose of seeing that the detenu is kept in jail inspite of being enlarged on bail. Hence, the present writ petition is filed.
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3) A counter has been filed mainly stating that the writ petition is not maintainable as the same is filed pending representation of the detenu before the Advisory Board (Subsequently, by the time arguments were commenced, the impugned detention order has been confirmed by the Advisory Board vide G.O.Rt.No.1977 General Administration (Spl. (Law & Order) Department, dated 19.10.2022). The detenu being the Member of Legislative Assembly is duty bound to protect the interest and welfare of the people, but he resorted to the heinous act of intentionally uploading the video of a speech to create hatred and ill-will between the people belonging to Hindu and Muslim Religions. It is further averred that the detenu had a chequered criminal history of being involved in more than 100 criminal cases including the offences of murder, various other grave and dangerous offences involving property and human body, though the detenu being an MLA is supposed to conduct himself in a dignified manner both inside and outside the House (Assembly). Even the political party, to which the detenu belongs to, had also suspended the detenu from the party, which strengthens the correctness of the impugned detention order. The conduct of the detenu in making hate speeches targeting a particular community squarely falls within the ambit of disturbance to the public order. The State being endowed with the responsibility of protecting the lives and properties of people of the 5 AAR, J & JS, J WP No. 34934 of 2022 State, has rightly invoked its power under the Preventive Detention Act and as a preventive measure had detained the husband of the petitioner as he has been indulging in grave and dangerous offences such as delivering provocative and inflammatory speeches against Muslims especially against Prophet Mohammed. By making derogatory speeches, the detenu has created hatred and ill- will between the Muslim and Hindu communities resulting in large scale unrest among the people in the limits of Hyderabad and thereby adversely affecting the maintenance of public order. That these kind of activities are prejudicial to the maintenance of public order apart from disturbing the public peace, tranquillity and communal harmony in the Society. It is further stated that during the years 2012 to 2022 the detenu was involved in as many as 18 offences of communal nature in different police stations, out of which, only three crimes, registered against the detenu in the year 2022, were taken into consideration for passing the impugned detention order. In crime No.261/2022 of Mangalhat PS, the detenu was arrested and produced before the XVI Additional Chief Metropolitan Magistrate, Hyderabad, on 23.08.2022 with a request to remand him to judicial custody. But, the Hon'ble Metropolitan Magistrate has not accepted their request for judicial custody and granted bail to the detenu by imposing certain conditions. It is further stated that in remaining two crimes, the notices under 6 AAR, J & JS, J WP No. 34934 of 2022 Section 41-A Cr.P.C. were issued to the detenu. The detaining authority after considering the entire material and having been satisfied that the activities of the detenu were prejudicial to the maintenance of public order, affecting the community at large, has passed the impugned detention order. That with a view to prevent the detenu from further indulging in such prejudicial activities and having felt that the provisions under the ordinary criminal law cannot prevent the detenu from further indulging in such prejudicial activities, has in the larger public interest, passed the impugned detention order. The detenu has submitted his representation through email to the Home Department whereas the competent authority is the Government, General Administration Department, Hyderabad. The said representation of the detenu has been forwarded to the competent authority and after calling for remarks on the said representation from the respondent authorities, the representation was rejected by the Advisory Board and copy of order was communicated to the detenu. The allegation made by the petitioner that the impugned detention order was passed to satisfy a section of people has been specifically denied. The authorities have strictly followed the procedure contemplated under the Preventive Detention Act while passing the impugned detention order. The detaining authority having been satisfied that there is an imminent possibility of the detenu again resorting to 7 AAR, J & JS, J WP No. 34934 of 2022 similar activities, which are detrimental to public order, has passed the impugned detention order. It is further averred that the motive for the detenu in giving provocative speeches is to trigger communal violence by provoking people belonging to other religions. It is further averred that only on the ground that the Merely because the detenu was enlarged on bail, the detaining authority is not precluded from exercising its jurisdiction in analyzing the situation and circumstances and passing the impugned detention order. It is further averred that when the detenu was taken into custody, he has reiterated before the media that the Police are making efforts for removal of his speeches from YouTube and that these acts of the Police will not deter him from posting further speeches on the issue. The said stand of the detenu made the detaining authority to strongly believe that there is an imminent risk and possibility of the detenu committing similar offences causing breach of public peace, tranquillity and disturbing the communal harmony in the State, which would be detrimental to public order. The petitioner has approached this Court without exhausting the remedies available under the Preventive Detention Act. Further, the constitutional safeguards as envisaged under Article 22 of the Constitution of India have been strictly followed while passing the impugned detention order. Hence, it is prayed to dismiss the writ petition. 8
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4) Heard the learned Counsel for the parties and perused the impugned order.
5) Sri L. Ravi Chander, learned Senior Counsel appearing for the petitioner, has contended that relying on three cases registered against the detenu in the months of February, April and August, 2022, the impugned detention order is passed. Learned Senior counsel has stated that the Detaining Authority without application of mind, and without there being any worthy material on record has passed the impugned detention order, which is not only illegal, bad, contrary to the well settled principle of law laid down by this Court as well as the Hon'ble Supreme Court but also an arbitrary exercise of power. Learned counsel has stated that in spite of several strictures passed by this Hon'ble High Court as well as the Hon'ble Supreme Court, in a catena of cases challenging the detention orders passed against various people, the authorities are still passing the detention orders in a pedantic and mechanical manner, thereby deliberately subverting the normal criminal process. That the Preventive Detention Act is a draconian Act, which has to be sparingly used for passing the detention order at the drop of a hat even for crimes which can be dealt with under normal Penal Code and by normal criminal Courts. The detention order should commensurate with the nature and gravity of crimes 9 AAR, J & JS, J WP No. 34934 of 2022 alleged against the detenu, but without there being any substantial material on record, the authorities concerned in a prejudicial manner are passing the detention orders only to see that the detenu is confined to jail. That the Detaining Authority though has relied only on three cases for passing the impugned detention order, has referred to 18 other criminal cases registered against the detenu which do not have any bearing or nexus with the impugned order and was therefore predetermined and prejudicial while passing the impugned detention order.
6) The learned counsel has stated that after the registration of crime No.261/2022 on 22.08.2022, the detenu was arrested and produced before the learned XIV Additional Chief Metropolitan Magistrate on 23.08.2022. That the learned XIV Additional Chief Metropolitan Magistrate having come to the conclusion that there are no valid grounds for remanding the detenu/accused to judicial custody has enlarged the detenu on bail on the very same day duly imposing certain conditions. That admittedly the said conditions imposed by the learned XIV Additional Chief Metropolitan Magistrate while granting bail have not been violated by the detenu and as a matter of fact the detenu has been complying with the said conditions strictly, therefore, there was no legally tenable ground for passing the impugned detention order. That the 10 AAR, J & JS, J WP No. 34934 of 2022 impugned detention order has been passed only to see that the detenu is confined to jail by whatsoever manner. That in spite of numerous judgments holding the field that while passing detention order strict compliance of law has to be followed, the same has not been followed by the Detaining Authority in the case on hand. The alleged utterances, if any, and attributed to the detenu are only twisted and concocted version of the authority and far from truth. That the original statement made by the detenu is deliberately translated incorrectly and the detenu is wrongly attributed to the alleged offences. That the detenu has neither referred to any religion nor Prophet of any particular religion but has only used the word 'Aaka", which essentially means Master. That the word 'Aaka' has different connotations and usually used by a subordinate or a servant while addressing his superior or master and the said word cannot be attributed only to the Prophet as alleged. Therefore, the contention of the authority that the detenu has made derogatory remarks against the Prophet is nothing but a deliberate misinterpretation of the word 'Aaka' while passing the impugned detention order. That the Detaining Authority while passing the detention order has deliberately referred to the previous 18 cases, registered against the detenu only to prejudice this Court, but for the purpose of passing the detention order has relied only on three cases viz,., Crime Nos.68 and 261 of 2022 of 11 AAR, J & JS, J WP No. 34934 of 2022 Mangalhat Police Station and Crime No.71 of 2022 of Shahinayathgunj Police Station. It is further stated by the learned counsel that when the authorities are not relying on the 18 cases for passing the impugned detention order, they cannot refer the same in the impugned detention order, the oblique reference to those 18 cases clearly reveals that the authority was acting in a prejudicial and predetermined manner while passing the impugned detention order. That out of the three cases referred by the detaining authority, the two crimes viz., Crime No.68 of 2022 of Mangalhat Police Station and Crime No.71 of 2022 of Shahinayathgunj Police Station are old and stale cases for all practical purposes and do not have any live nexus with the impugned detention order. Therefore, the said two crimes ought not have been taken into account while passing the impugned detention order. That all the incidents/offences which are attributed to the detenu are fully covered under the provisions of the Indian Penal Code and can be tried by normal criminal Courts. That passing of the impugned detention order is an arbitrary and colourable exercise of power and there is no element of any public disorder as alleged.
7) The learned counsel has further stated that in the impugned order, the authorities have deliberately not referred or extracted 12 AAR, J & JS, J WP No. 34934 of 2022 the conditions imposed by the learned Metropolitan Magistrate while granting bail to the detenu in crime No.261/2022. Even the crimes attributed to the detenu can only be described as purely a law and order problem and can be dealt with under the normal criminal laws and there was no necessity to invoke the provisions of the Preventive Detention Act. That the detenu has not made any derogatory remarks against the Prophet as alleged but the words have been deliberately and wrongly translated only with a view to pass the impugned detention order and keep the detenu in jail. Even though in the impugned detention order it is stated that one of the main reasons for passing the impugned detention order is the apprehension expressed by the detaining authority that there is every likelihood of there being communal disharmony which may result in large scale riots, bandhs and rasta rokos, etc., but the said ground is also not available to the respondents as the detenu has not violated any of the conditions imposed by the Hon'ble Additional Chief Metropolitan Magistrate. Even if there are any Bandhs, Rasta Rokos or strikes, it is for the authorities to take necessary action for maintaining the law & order situation, if any, that may arise, but they cannot invoke the provisions of a draconian law like Preventive Detention Act against the detenu and curtail his freedom.
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8) Insofar as crime No.68/2022 registered at Mangalhat Police Station is concerned, learned counsel has argued that the alleged crime happened in the month of February, 2022, and was with regard to the elections that took place in the State of Uttar Pradesh. That none of the authorities of Uttar Pradesh State viz., either the State Election Commission of Uttar Pradesh, the Electorate of Uttar Pradesh or the Government of Uttar Pradesh have lodged any criminal complaints against the detenu-accused for the alleged utterances. That even after the said utterances were made by the detenu in the month of February, 2022, no untoward incident, riots, rasta rokos or public disorder have taken place in the State of Telangana. Therefore, passing of the impugned detention order relying on crime No.68 of 2022 registered in the month of February, 2022, is with a malafide intention and therefore liable to be ignored. That there is no live nexus of crime No.68/2022 registered in the month of February, 2022 and passing of the present impugned detention order in the month of August, 2022. That in the absence of any incident of communal right, bandhs, etc. being reported in any part of the State after the alleged utterances were made in the month of February, 2022, the passing of the impugned detention order relying on that particular crime is without application of mind and is a colourable exercise of power made with a malafide intention to confine the detenu in jail. 14
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9) That insofar as crime No.71 of 2022 registered in the month of April, 2022, is concerned, learned counsel has contended that there is absolutely no reason for relying on this particular crime also for passing the impugned detention order. That nothing derogatory has been uttered by the detenu against any persons who are residents of the State of Telangana. That the detenu has specifically referred to the people of Pakistan and there is no reason for any Indian citizens to get offended by the said utterances made by the detenu against the citizens of other country. That even though the crime has been registered on 10.04.2022, no incident of riots, bandhs or communal disharmony have taken place in the State of Telangana after the said utterances. That there are no incidents of any public disorder attributable after the detenu had sung the song during Srirama Navami procession. Therefore, the reliance placed by the authority on this crime No.71 of 202 registered in April, 2022, is also without application of mind and contrary to the well established principles of law. These two crimes have to be considered as stale and old having no live nexus with the passing of the impugned detention order in August, 2022, and ought to have been ignored by the detaining authority while passing the impugned detention order. 15
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10) Further, it is argued that even though the two crimes alleged to have been committed by the detenu way back in the months of February and April, 2022 are taken as grounds for passing the impugned detention order, there is nothing on record to show as at what stage the investigation of the said two crimes is, whether any progress has been made by the Police after registration of the said two crimes or any charge sheet has been filed against the detenu. That the authority concerned has passed the impugned detention order with predetermined mind only to cater to the needs of its political bosses. That in the absence of any untoward incidents having reported in any part of the State after the two crimes were registered in the months of February, and April, 2022, reliance on these two crimes is totally misplaced and unwarranted. That the earlier two cases have to be considered as old and stale cases having no live nexus as no untoward incidents have occurred in any part of the State after the registration of the said two crimes. Moreover, no statistics have been given by the authorities concerned after the said two crimes were registered against the detenu in the months of February and April, 2022, to show that any untoward incidents have taken place, which warrants the authorities to pass the impugned detention order. Moreover, the notice under Section 41-A Cr.P.C. was served on the detenu on 25.08.2022 at 11.00 a.m. in these two cases.
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11) Once these two crimes are ignored the only crime available for the Detaining Authority is crime No.261/2022 registered in the month of August, 2022, and the said crime alone cannot be a ground for passing the impugned detention order, more particularly, when the detenu has not uttered any derogatory remarks against any Religious Head or any particular Religion, as alleged. Except one or two stray incidents, which occurred purely because of the wrong interpretation made by some vested interest persons, no communal riots or breakdown of public order has taken place which entails the authorities to pass the present impugned detention order. Learned counsel has stated that after crime No.261/2022 was registered against the detenu, the detenu was produced before the learned XIV Additional Chief Metropolitan Magistrate, Hyderabad, with a request to remand the detenu to judicial custody, but the request of the respondents was rejected by the learned Metropolitan Magistrate and the detenu was granted bail on certain conditions. That the detenu was enlarged on bail, he has not violated any of the bail conditions imposed by the learned Metropolitan Magistrate, but immediately after the release of the detenu, the authorities have passed the impugned detention order only to circumvent the bail granted by the learned Metropolitan Magistrate. That the detaining authority was highly prejudicial and predetermined while passing the impugned 17 AAR, J & JS, J WP No. 34934 of 2022 detention order and therefore the same is liable to be set side. That the ordinary Penal laws are more than sufficient to deal with the crimes attributable to the detenu, the impugned detention order is passed on legally untenable, non-existing grounds and nothing but an abuse of the powers by the detaining authority. That there is no subjective satisfaction of the detaining authority while passing the impugned detention order and therefore the same is liable to be set aside.
12) Learned counsel has also stated that the documents, more particularly the documents at page Nos.132 to 170, annexed to the Writ Petition, which have been furnished to the detenu in jail, are not at all legible or readable. That most of the words and sentences of the documents supplied are not readable, which ineffect does not allow the detenu to give a detailed and effective representation. The Courts have time and again held that furnishing illegible copies to the detenu can also be a ground for setting aside the detention order. That most of the translated pages are wrongly translated. That some of the words and sentences which are there in the original order have been omitted or wrongly translated in the translated copy giving a wholly new meaning to the translated version. That translated copy of the confirmation order vide G.O.Rt.No.1977 General Administration 18 AAR, J & JS, J WP No. 34934 of 2022 (Spl. (Law & Order) Department, dated 19.10.2022, in the language known to the detenu has not been furnished to the petitioner and on this sole ground alone the impugned detention order is liable to be set aside.
13) Learned counsel has stated that some of the documents enclosed to the detention order do not contain the signature of the detenu whereas the documents filed by the authorities along with the counter show that the detenu has signed on them on 29.08.2022. That, as a matter of fact, the detenu was served only with the copy of the detention order on 25.08.2022 without supplying the documents relied on by them and on this ground also, the impugned detention order is liable to be set aside. That respondent No.2 while passing the impugned detention order has deliberately made unwarranted comments against the detenu stating that the detenu is a gang leader and that he is causing disharmony and communal hatred in the Society, but as a matter of fact, there are absolutely no statistics submitted by the authorities concerned to substantiate this claim. Moreover, there is no whisper as to what happened to the other members of the gang or the number of crimes alleged to have been committed by the so-called gang.
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14) That in the earlier two crimes i.e. Crime No.68 of 2022 of Mangalhat Police Station and Crime No.71 of 2022 of Shahinayathgunj Police Station, are registered against the detenu in the month of February and April, 2022 respectively, the notices under Section 41-A Cr.P.C. have been served on the petitioner only on 25.08.2022 at 11.00 a.m. and the impugned detention order was passed on 25.08.2022 at 2.30 pm, which clearly points to the fact that the authority was acting in a prejudicial and predetermined manner. That the notices under Section 41-A Cr.P.C. are also defective and not in consonance with the provisions of Section 41-A Cr.P.C. In the absence of any material to show that due to the alleged utterances made by the detenu there was a complete breakdown of Law & Order that resulted in public disorder, the detention order cannot be passed on the mere misapprehensions expressed by the detaining authority. That passing of the impugned detention order is nothing but colourable exercise of power and is a selective prosecution indulged by the authorities to appease its political bosses. That the authority concerned has not followed the procedure prescribed under the Preventive Detention Act in true letter and spirit and therefore, the impugned detention order is liable to be set aside on this ground alone. The learned counsel has relied on the following judgments in support of his contentions:
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1) Ram Manohar Lohia v. State of Bihar1;
2) Pushkar Mukherjee v. State of W.B.2;
3) Arun Ghosh v. State of West Bengal3;
4) Mustakmiya Jabbarmiya Shaikh v. M.M. Mehta4;
5) State of UP v. Sanjai Pratap Gupta @ Pagpu5;
6) Madhu Limaye v. Sub-Divisional Magistrate, Monghyr6;
7) C. Neela v. State of Telangana7;
8) K.K. Sarvana Babu v. State of Tamil Nadu8;
9) In Re, Sushanta Goswami & others9;
10) Sudhir Kumar Saha v. The Commissioner of Police10;
11) Magan Gope v. The State of West Bengal11; and
12) Jayanarayan Sukul v. State of West Bengal12.
15) Per contra, the learned Advocate General (AG) appearing on
behalf of the State has vehemently opposed the very
maintainability of the Writ Petition and stated that the writ petition is liable to be dismissed on the sole ground that the petitioner has approached this Court with unclean hands by suppressing 1 AIR 1966 SC 740 2 1969 (1) SCC 10 3 1970 (1) SCC 98 4 (1995) 3 SCC 237 5 (2004) 8 SCC 591 6 1970 (3) SCC 746 7 2017 (2) ALD (Crl.) 760 8 (2008) 9 SCC 89 9 1969 (1) SCC 273 10 1970 (1) SCC 149 11 (1975) 1 SCC 415 12 1970 (1) SCC 219 21 AAR, J & JS, J WP No. 34934 of 2022 material facts. Learned Advocate General has stated that the contention of the detenu that he was not aware of the earlier two cases registered against him i.e. Crime No.68 of 2022 and Crime No.71 of 2022 is a false statement made to mislead this Court.
That the procedure contemplated under the Preventive Detention Act was scrupulously followed by the detaining authority while passing the impugned detention order. Learned Advocate General has stated that the contention of the detenu that the utterances were not made against the Religious Head of a particular community, is a false statement. The particular word 'Aaka' used by the detenu refers to the Prophet and clearly demonstrates that the detenu has targeted a particular religious community and has used abusive language and derogatory statements against their Prophet, which is nothing but hate speeches. The speeches made by the detenu are nothing but hate speeches, which have been deprecated by the Hon'ble Supreme Court as well as this Hon'ble Court in a catena of cases. Due to the utterances made by the detenu, there was a large scale disturbance to the public peace, which not only resulted in riots, dharnas and protests in different parts of the State, but also resulted in public disorder. Due to the utterances made by the detenu, the communal harmony in the State got adversely effected and resulted in public disorder. The contention of the detenu that the legible copies were not provided 22 AAR, J & JS, J WP No. 34934 of 2022 to him is totally a false statement and is contrary to the record. Learned Advocate General has placed on record the original record pertaining to the copies annexed to the writ petition at page Nos.132 to 170 to show that the said copies are legible and readable copies. Except for two or three pages, all the pages furnished to the detenu are in a readable and legible condition. Merely because the petitioner has filed documents, which are illegible, along with the Writ Petition, the same does not mean that the authorities have also provided illegible copies to the detenu. Further, it is contended that there is no dispute with regard to the video circulated from the account being managed by the detenu on YouTube channel wherein the detenu has made derogatory remarks against a particular religious community and their Prophet. That immediately after this video was uploaded by the detenu, spontaneous protests broke out in different parts of the State leading to public disorder, and there was a clamour for arrest of the detenu. That the transcripts of the video and other speeches made by the detenu filed along with the counter clearly demonstrate that the detenu has made derogatory remarks against a particular community and their Prophet, which is nothing but Hate Speech. Merely because the detenu asserts that the said utterances do not refer to the Prophet or any Religion, the said statement cannot be taken on its face value. That this Hon'ble 23 AAR, J & JS, J WP No. 34934 of 2022 Court has to watch the video and also read the transcripts, which have been provided along with the counter, to understand the true meaning and real purport of the utterances made by the detenu and the same will reveal that the detenu has made derogatory remarks against a particular religion and their Prophet. That the authority concerned was conscious of the fact that the detenu has been repeatedly making such kind of derogatory speeches and targeting a particular Religion/community only with a view to create public disturbance and public disorder in the State. Even though the detenu is a Member of the Legislative Assembly (MLA) elected from Goshamahal Constituency, he has a chequered criminal history and is involved in more than 100 criminal cases including two murder cases, which are at various stages of investigation. Learned Advocate General has further stated that merely because the detenu is acquitted in some of the criminal cases, the same does not give the detenu a license to perpetuate the hate crimes by making derogatory and hate speeches against a particular community and their Prophet. The authority while passing the impugned order of detention has taken into consideration the three cases viz., Crime Nos.68 and 261 of 2022 of Mangalhat Police Station and Crime No.71 of 2022 of Shahinayathgunj Police Station.
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16) Learned Advocate General has stated that crime No.261 of 2022 was registered on 22.08.2022 at Mangalhat Police Station wherein the detenu was alleged to have committed the offences punishable under Sections 153(A)(a)(b), 295-A, 504, 505(2) and 506 IPC. Though the detenu was arrested on 23.08.2022 in connection with said crime and produced before the learned Metropolitan Magistrate for remanding him to judicial custody, the learned Metropolitan Magistrate on purely technical grounds has not remanded the detenu to judicial custody and released him on bail. Challenging the granting of bail to the detenu in crime No.261 of 2022, the State has preferred Crl.R.C. No.547 of 2022 before this Hon'ble Court and the same is pending consideration. Learned Advocate General has further stated that merely because crimes are registered against the detenu there is no prohibition under the law for passing the detention order under the Preventive Detention Act against the detenu. The detaining authority is well within its authority for passing the detention order for the hate speeches made by the detenu targeting a particular religious community and their Prophet, which had the effect of disturbing the public peace, communal harmony and create public disorder. That the authority is well within its rights in passing the detention order and the same is permissible under the law. 25
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17) That insofar as crime No.68 of 2022 is concerned, the same was registered on 19.02.2022 for the offences punishable under Sections 505 (2), 171-C r/w.171-F IPC and Sections 123, 125 of Representation of People Act,1951. Learned Advocate General has drawn the attention of the Court to the order dated 19.02.2022 passed by the Election Commissioner of India wherein the detenu was issued a show cause notice for the utterances made and he was directed to submit his explanation to the said show cause notice, but the detenu did not bother to file any explanation. Hence, the Election Commissioner was constrained to pass an adverse order against the detenu and the speeches made by the detenu were not only deprecated but he was censured and prohibited from indulging in such kind of activities. Further, the State Election Commissioner was also directed to lodge a criminal complaint against the detenu, pursuant to which, the State Election Commissioner has lodged a criminal complaint before the concerned Police Station and crime No.68 of 2022 was registered against the detenu. The detenu cannot claim that he is not aware of registration of the said FIR as he had received the copies of show cause notice as well as the order passed by the Election Commission of India. The learned Advocate General has also drawn the attention of the Court to the various news paper clippings to buttress his contention that crime No.68 of 2022 was 26 AAR, J & JS, J WP No. 34934 of 2022 registered against the detenu and well reported. Learned Advocate General has further stated that the order dated 15.02.2022 of the Election Commissioner speaks for itself and has also drawn the attention of the order passed, wherein the Election Commissioner has referred to the abusive language used by the detenu, but also censured the detenu and issued prohibitory orders.
18) That insofar as crime No.71 of 2022 is concerned, during the Srirama Navami Shobha Yatra, the detenu has sung a song using derogatory remarks against a particular Religion and its followers and a crime was registered on 12.04.2022 for the offences punishable under Sections 153-A, 295-A, 504, 505 (2) of IPC. The learned Advocate General has stated that the detenu has been indulging in these kind of repetitive offences, which clearly indicates that he is a habitual offender. That in spite of number of criminal cases being registered against him, the detenu has not mended his way and indulging in delivering hate speeches and thereby disturbing the public order. That the derogatory remarks and abusive language used by the detenu targeting a particular religion and their Prophet have the propensity to disturb the public peace and communal harmony leading to public disorder, that these hate speeches made by the detenu have to be not only condemned but also deprecated by one and all.
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19) Learned Advocate General has stated that the judgments relied by the learned senior counsel appearing for the petitioner cannot be taken as a blanket order for challenging the impugned detention order passed by the detaining authority, that each and every case has to be dealt with independently on its own set of facts. That having regard to the fact that the detenu is a repeat offender, who has time and again been making derogatory remarks and hate speeches against a particular community and its Prophet, inspite of number of criminal cases registered against him, the detaining authority having been satisfied that unless and until the detenu is restrained from making such derogatory remarks, he will continue to do so and that there is every likelihood of disturbing the public peace, communal harmony and cause public disorder has passed the impugned detention order. Learned Advocate General has further stated that the detenu is a rowdy sheeter since last more than two decades and is indulging in repeated crimes which are leading to public disorder. Learned Advocate General has drawn the attention of the Court to the various provisions of the Preventive Detention Act, more particularly Sections 2 (a), 2 (g), 3, 10, 12 and 13 thereof, to contend that the impugned order is passed strictly in compliance with the provisions of the Preventive Detention Act. Learned Advocate General has stated that mere reference to past history of the detenu does not mean that the 28 AAR, J & JS, J WP No. 34934 of 2022 same have been relied by the detaining authority while passing the impugned detention order. Learned Advocate General has stated that this Court is only concerned with the issue as to whether the procedure contemplated under the Preventive Detention Act has been strictly followed or not while passing the impugned order of detention?. That the subjective satisfaction of the detaining authority cannot be said to be faulty merely because there are some minute discrepancies, more particularly having regard to the fact that the detenu has not denied that he has posted the offensive video on YouTube channel. If the contents of the said video posted by the detenu are examined by this Court it will reveal the derogatory comments and hate speeches made by the detenu and the said hate speeches cannot be brushed aside on the mere denial made by the detenu.
20) Learned Advocate General has further stated that the political party, to which the detenu belongs to, has also suspended him from the party for making these derogatory and offensive remarks against a particular religion and their Prophet, which only gives credence to the impugned detention order. That immediately after the detenu has made these derogatory remarks on 22.08.2022, number of riots have taken place in the city and four crimes were registered in different parts of the City under various 29 AAR, J & JS, J WP No. 34934 of 2022 provisions of the Indian Penal Code. The contention of detenu that the word 'Aaka' does not refer to Prophet is absolutely false and made to mislead this Hon'ble Court. Learned counsel has stated that the officials concerned have got the clarification from Darul Ifta, Darul Uloom, Deoband, Uttar Pradesh, which is an Islamic Seminary in India, which clearly indicates that the word 'Aaka' refers to the Prophet. That even the Advisory Board has found that the impugned detention order was passed inconsonance with the provisions of the Preventive Detention Act and the procedure prescribed thereunder was scrupulously followed by the detaining authority while passing the impugned detention order. That the statements made by the detenu are referable only to a particular religious community and targeting their Prophet.
21) Learned Advocate General has argued that the contention of the learned senior counsel appearing for the petitioner that copies of the material relied by the authorities concerned and furnished to the detenu are illegible, is without any basis. Learned Advocate General has stated that all the copies were translated into Hindi and furnished to the detenu. The detenu has also acknowledged the same, but at no point of time, he has raised any objection stating that the material given to him is unreadable or that illegible copies were furnished. Therefore, the detenu is estopped from 30 AAR, J & JS, J WP No. 34934 of 2022 raising the said ground, at this point of time. The detenu having gone through the documents supplied to him, has also given a representation to the Government, which was considered and rejected by the Advisory Board. Learned Advocate General has stated that the order of detention was served on the detenu at the house of the detenu on 25.08.2022 whereas the translated copies in Hindi were furnished while he was in custody at 11.40 a.m. on 29.08.2022. That mere non-mentioning of the page numbers in the acknowledgement receipt while submitting the translated copies is a minor lapse and cannot be a ground for declaring the detention order as invalid. That even in the acknowledgement given by the detenu while receiving the copies, the detenu has not mentioned that the documents furnished to him are illegible or not readable. That the detenu having received all the documents, without any protest, from the Jailor, now, cannot contend otherwise.
22) Learned Advocate General has submitted that the detaining authority has also relied on the news paper clippings, filed at page Nos.917 to 960 of the counter affidavit, while passing the impugned detention order and the above material clearly establish that the detenu has been making derogatory remarks and the speeches delivered by him have the propensity to disturb the 31 AAR, J & JS, J WP No. 34934 of 2022 communal harmony and breach the public peace. Further, the learned Advocate General has stated that merely because no untoward incidents have taken place after the utterances made by the detenu in the months of February and April, 2022, it cannot be said that the speeches delivered by the detenu do not have the tendency to disturb the public order. Learned Advocate General has further stated that it is not number of cases that are registered after the incident that matters, but preventing such incidents from taking place in future that really matters and one small incident is sufficient to justify the passing of the detention order under the Preventive Detention Act. That merely because the learned Metropolitan Magistrate has released the detenu on bail, it cannot be construed that the detention order cannot be passed against the detenu under the provisions of the Preventive Detention Act. That there is no legal embargo for passing the impugned detention order, merely because the Metropolitan Magistrate has not remanded the detenu to judicial custody and the detenu was granted bail. The learned Advocate General has also stated that no prejudice is caused to the detenu merely because the translated copy of the confirmation order i.e. G.O.Rt.No.1977 General Administration (Spl. {(Law & Order)} Department, dated 19.10.2022 was not furnished to him in Hindi language.
32
AAR, J & JS, J WP No. 34934 of 2022
23) The learned Advocate General has also stated that the two incidents which occurred in the months of February and April, 2022, cannot be said to be old and stale as contended by the learned senior counsel appearing for the petitioner, merely on the ground that no untoward incidents have taken place. Once an FIR is registered against the detenu, the law will take its own course and it cannot be said that said crimes are stale in nature. That any crimes registered against the detenu within the last preceding year can be taken into consideration for passing the impugned detention order. That the detenu being the public representative has to be more responsible, instead, he has been making these kind of derogatory speeches, which amounts to hate speeches. The videos and speeches made by the detenu clearly demonstrate that the speeches made by the detenu have the tendency to disturb the public order. The detenu has been continuously making hate speeches unabatedly inspite of numerous criminal cases being registered against him, which has to be condemned in one voice and prayed this Court to dismiss the present Writ Petition. Learned Advocate General has relied on the following judgments in support of his submissions:
1) Amesh Devgan v. Union of India13;
2) Pravasi Bhalai Sangathan v. Union of India14
13 (2021) 1 SCC 1
14 (2014) 11 SCC 477
33
AAR, J & JS, J
WP No. 34934 of 2022
3) State of U.P. v. Hari Shankar Tewari15
24) In view of the submissions made by both the sides, the point
that rises for determination in this Writ Petition is:
"Whether the detention order vide SB(1) No.156/PD-1/HYD/022, dated 25.08.2022, passed by respondent No.2, approved by the 1st respondent vide G.O.Rt.No.1651 General Administration (Spl. {Law & Order}) Department, dated 26.08.2022 and confirmed vide G.O.Rt.No.1977 General Administration (Spl. {Law & Order}) Department, dated 19.10.2022, are liable to be set aside or not?"
POINT:
25) In the instant case, the detaining authority while referring to previous 18 crimes registered against the detenu has relied only on three cases registered for preventively detaining him. The below tabular form shows the date of occurrence, the date of registration of FIR, the offence complained of and their nature, such as bailable/non-bailable or cognizable/non-cognizable.
Sl. Crime No. Date of Date of Offences Nature
No. occurrence registration U/Secs.
of FIR
505 (2), 171-C r/w.171-
68/2022 of F IPC and Sections 123, Non-bailable,
1. Mangalhat PS
19.02.2022 19.02.2022
125 of Representation of Non-cognizable
People Act,1951
261/2022 of 153(A)(a)(b), 295-A, 504, Non-bailable
2) Mangalhat PS
22.08.2022 23.08.2022
505(2) and 506 IPC Non-cognizable
71/2022 of
153-A, 295-A, 504, 505 Non-bailable
3) Shahinayath- 10.04.2022 12.04.2022
(2) IPC Non-cognizable
gunj PS
26) The allegations, in brief, made against the Detenu in the
cases relied by the detaining authority for passing the impugned 15 (1987) 2 SCC 490 34 AAR, J & JS, J WP No. 34934 of 2022 detention order are mentioned hereunder for better adjudication of the matter.
(a) Crime No.68/2022 of Mangalhat PS It is alleged that in the month of February, 2022, the detenu has recorded a video in Hyderabad and posted the same in social media and network applications wherein he has threatened the voters belonging to the State of Uttar Pradesh to cast their votes in favour of Bharatiya Janata Party during the 2022-General Elections to the Legislative Assembly of Uttar Pradesh, due to which incident, the Muslims of that State were alarmed with threats made by the detenu and were fearful of the damage to their safety and properties, thereby adversely affected the public order in the form of communal violence.
(b) Crime No.261/2022 of Mangalhat PS It is alleged that on 22.08.2022, the detenu has posted an offensive video with duration of 10 minutes and 27 seconds in YouTube commenting against Prophet Mohammed and his life style. The detenu has also commented that the Muslim community people are engaged in killing of cows. It is alleged that the provocative speech of the detenu against Prophet Mohammed have hurt the religious sentiments of the Muslim Community promoting enmity between the two different religions, which would cause breach of peace and disturb the public order.
35
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(c) Crime No.71/2022 of Shahinayathgunj PS It is alleged that the detenu on 10.04.2022 during Sri Rama Navami Shobha Yatra (procession) at Begum Bazar Chatri, Begum Bazar, Hyderabad, had delivered a provocative speech/song in Hindi language against Muslim community, which created hatred between the communities of Hindus and Muslims. Based on the complaint of the Sub-Inspector of Police, Shahinayathgunj Police Station, who was on bandhobust duty, the crime was registered against the detenu.
27) The detaining authority while taking into account the above three crimes has come to the conclusion that the detention order need to be passed against the detenu herein. The relevant portion of the impugned detention order is extracted hereunder for better understanding of the matter:
"You resort to delivering provocating speeches and singing provocative songs on public platforms and also post them on social media, thereby, hurting the religious sentiments of the Muslim community, with an intention to create hatred between the Muslims and Hindus, to muster your dominance among the Hindu community.
You are a notorious rowdy sheeter and communal offender. You have been habitually delivering provocative speeches against Islam and on 22.8.2022 especially against the Prophet Mohammed, with an intention to provoke breach of peace and public tranquillity. On 22.8.2022, you have posted an offensive video on "Shree Ram Channel, Telangana"
with a title "Faruqui K Aaka Ka Itihass Suniye" on YouTube with 36 AAR, J & JS, J WP No. 34934 of 2022 URL https://youtu.be/N2sBNklmsLk. You have commented blasphemously against Prophet Mohammed and his life style with an intention to hurt the religious sentiments of the Muslim community and promoting enmity between two different communities which is likely to cause breach of peace and disturb the public order. When the video went viral, protests have erupted in different parts of Hyderabad City and Telangana State. As a result, several thousands of Muslims came out of their houses and organized protest rallies, rasta rokos, dharnas, burning of your effigies in public places demanding your immediate arrest. Sensing danger to their life and properties from the protestors, people have closed their shops and business establishments. You have created hatred and ill-will between the Muslim and Hindu communities resulting in large scale unrest among the people in the limits of Hyderabad Police Commissionerate and Telangana State, thereby adversely affecting the maintenance of public order and such activities can be said to be prejudicial to the maintenance of public order. Earlier also, you have made derogatory speeches against the Muslim community leading to communal tensions in Hyderabad City and other parts of Telangana. You were arrested on 23.8.2022 in Cr.No.261/2022 of Mangalhat Police Station and you were produced before the Hon'ble XVI Addl. Chief Metropolitan Magistrate, Hyderabad, with a remand report seeking judicial remand. The Hon'ble Magistrate did not accept the remand application and ordered to release you on personal with certain conditions.
As seen from your past criminal history and background, I believe that if such a notorious rowdy sheeter and a communal offender is set free, your activities would result in communal disturbances, breach of peace and tranquillity in the society. More particularly, when you were taken into custody, you once again reiterated before the media that the police are making efforts for the removal of your speech from the YouTube, and that will not deter you from posting your 37 AAR, J & JS, J WP No. 34934 of 2022 further speeches on the issue and that shortly you will be posting further videos of your speeches on YouTube on this issue. I strongly believe that there is an imminent risk and possibility of your committing similar offences and communal nuisance which would be detrimental to public order. I am also satisfied that the cases registered against you under the ordinary law, are not sufficient to prevent your unlawful and prejudicial activities. Therefore you should be prevented from doing so by an appropriate order of detention.
As per clause (g) of Section of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land 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 (Act NO.1 of 1986), "Goonda" means 'a person, who either by himself or as a member of or leader of 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 Indian Penal Code.
Thus, you have indulged in the acts of goondaism and as a leader of criminal gang, you have been habitually delivering provocative speeches against Muslims and on 22.8.2022 especially against the Prophet Mohammed with an intention to provoke breach of peace and tranquillity in the limits of Hyderabad City Police Commissionerate and Telangana State and thus you have caused panic, terror and fear in the minds of the general public, thereby disturbing the public order and tranquillity in the area. Your anti-social and unlawful activities have been causing a feeling of insecurity in the minds of the public on a regular basis. The said activities are prejudicial to the maintenance of public order and your acts 38 AAR, J & JS, J WP No. 34934 of 2022 have been adversely affecting the maintenance of public order and peace in the area.
It is imperative to prevent you from acting in any manner prejudicial to the maintenance of public order and hence I feel that recourse to normal law may not be an effective deterrent in preventing you from indulging in such further activities prejudicial to the maintenance of public order in the area unless you are detained by invoking the provisions under the Act No.1 of 1986. Hence, after careful consideration of all the facts and circumstances mentioned above and the material placed before me, I am satisfied that the provisions of the "Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land 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 (Act No.1 of 1986), should be invoked and you should be detained under Sub-Section (2) of Section 3 of Act No.1 of 1986 r/w.G.O.Rt.No.1205. General Administration (Spel. Law & Order) Department, dated 14.6.2022, with a view to prevent you from acting in any manner prejudicial to the maintenance of public order."
(Emphasis added)
28) For better adjudication of the matter, the relevant provisions of the Preventive Detention Act are hereby extracted.
2. Definitions: In this Act, unless the context otherwise requires,
(a) "Acting in any manner prejudicial to the maintenance of public order"
means when a boot-legger, a dacoit, a drug offender, a goonda an 39 AAR, J & JS, J WP No. 34934 of 2022 immoral traffic offender [Land-Grabber, a Spurious Seed Offender, an Insecticide Offender, a Fertiliser Offender, a Food Adulteration Offender, a Fake Document Offender, a Scheduled Commodities Offender, a Forest Offender, a Gaming Offender, a Sexual Offender, an Explosive Substances Offender, an Arms Offender, a Cyber Crime Offender and a White Collar or Financial Offender] is engaged or is making preparations for engaging in any of his activities as such, which affect adversely, or are likely to affect adversely, the maintenance of public order.
(g) "Goonda" 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 Indian Penal Code (Central Act 45 of 1860)
3. Power to make orders detaining certain person:- (1) The Government may, if satisfied with respect to any boot-legger, dacoit, drug offender, goonda, immoral traffic offender [Land-Grabber, Spurious Seed Offender, Insecticide Offender, Fertilizer Offender, Food Adulteration Offender, Fake Document Offender, Scheduled Commodities Offender, Forest Offender, Gaming Offender, Sexual Offender, Explosive Substances Offender, Arms Offender, Cyber Crime Offender and White Collar or Financial Offender] that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained.
(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the Government are satisfied that it is necessary so to do, they may, by order in writing, direct that during such period as may be specified in the order, such District Magistrate or 40 AAR, J & JS, J WP No. 34934 of 2022 Commissioner of Police may also, if satisfied as provided in sub-section (1), exercise the powers conferred by the said sub-section:
Provided that the period specified in the order made by the Government under this sub-section shall not in the first instance, exceed three months, but the Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.
(3) When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such other particulars as in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after making thereof, unless, in the meantime, it has been approved by the Government.
8. Grounds of order of detention to be disclosed to persons affected by the order:- (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but, not later than five days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the Government.
(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.
10. Reference to Advisory Board:- In every case where a detention order has been made under this Act, the Government shall within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by them under Section 9, the grounds on 41 AAR, J & JS, J WP No. 34934 of 2022 which the order has been made and the representation, if any, made by the person affected by the order, and in the case where the order has been made by an officer, also the report by such officer under sub-section (3) of Section 3.
12. Action upon report of Advisory Board:- (1) In any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period, not exceeding the maximum period specified in Section 13 as they think fit.
(2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the person concerned, the Government shall revoke the detention order and cause the person to be released forthwith.
13. Maximum period of detention:- The maximum period for which any person may be detained, in pursuance of any detention order made under this Act which has been confirmed under Section 12 shall, be twelve months from the date of detention.
29) One of the objects and reasons for enactment of the Preventive Detention Act is to ensure that the maintenance of public order in the State of Telangana and not being adversely affected by the activities of specially identified thirteen classes of known anti-social elements viz., Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities 42 AAR, J & JS, J WP No. 34934 of 2022 Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders, without resorting to the National Security Act, 1980, the Preventive Detention Act, 1986, has been enacted to provide for preventive detention of the persons indulging in these kind of dangerous activities.
30) Undoubtedly, under the provisions of the Preventive Detention Act, the detaining authority has the power and authority to pass a detention order against a person who is involved in committing the various crimes specified in Sections 2 (b), (c), (f), (g),
(i), (j), (l), (m), (n), (o), (p), (q), (r), (s), (the), (u), (v), (w) and (x) of the Preventive Detention Act. The detaining authority must be satisfied that there are valid grounds for passing a detention order and unless and until such a detention order is not passed against the said person, there is every likelyhood of the said person committing more offences of similar nature which are likely to effect the maintenance of public order. The said detention order should be in furtherance of maintaining the public order and to the subjective satisfaction of the detaining authority. The detaining authority before passing the order of detention should be satisfied that the ordinary law dealing with criminal justice system is not 43 AAR, J & JS, J WP No. 34934 of 2022 sufficient to reign the detenu and that there is every likelihood of the breach of law by the detenu. It is settled law that the subjective satisfaction of the detaining authority cannot be subjected to an objective test by the Courts and the Courts cannot sit in appeal over the said order of detention. However, if the Court finds that the order of detention was not based on any valid or reasonable ground, then the said order is liable to be set aside. The detaining authority must be satisfied that the alleged crime committed by the accused falls squarely within the ambit of "public order" and cannot be dealt with under normal criminal laws or can be dealt as "law and order" problem. Apprehension of the detaining authority, however strong it may be, cannot be a valid ground for passing the detention order. The degree of difference between the concept of "public order" and "law and order" is razor- thin and may overlap in some instances and the Courts should be very careful and cautious while testing the validity of the detention order.
31) Any detention order is sustainable only when the criminal activities of the individual largely/adversely affect the public at large or disturb the public order. Whether the alleged criminal activities or cases referred to above have the propensity to disturb the public order or not or can be dealt with under the normal Penal 44 AAR, J & JS, J WP No. 34934 of 2022 laws of the State are some of the primary considerations that have to be taken into consideration by the Courts. Admittedly, in this particular case, the offences alleged to have been committed by the detenu are falling under the provisions of the Indian Penal Code and the crimes are registered accordingly.
32) The Hon'ble Supreme Court as well as this Court, time and again, have held that when the individual cases can be dealt with under the normal criminal justice system, there is no need for the detaining authority to invoke the draconian preventive detention laws. That the detaining authority should be vary of invoking the immense power under the Act, if the normal penal laws are sufficient to deal with the said crime.
33) The Hon'ble Supreme Court as well as this Court, in a catena of cases, have distinguished the 'law & order' and 'public order'.
(a) In Madhu Limaye vs. Sub-Divisional Magistrate16 the Hon'ble Supreme Court has held, at paras 19 and 20, as under:
"19. Adopting this test we may say that the State is at the centre and society surrounds it. Disturbances of society go in a broad spectrum from mere disturbance of the serenity of life to jeopardy of the State. The acts become graver as we journey from the periphery of the largest circle towards the centre. In this journey we travel first through public tranquility, then through public order and lastly to the security of the State.
16 (1970) 3 SCC 746 45 AAR, J & JS, J WP No. 34934 of 2022
20. In dealing with the phrase "maintenance of public order"
in the context of preventive detention, we confined the expression in the relevant Act to what was included in the second circle and left out that which was in the largest circle. But that consideration need not always apply because small local disturbances of the even tempo of life, may in a sense be said to effect "public order" in a different sense, namely, in the sense of a state of law abidingness vis-à-vis the safety of others. In our judgment the expression "in the interest of public order" in the Constitution is capable of taking within itself not only those acts which disturb the security of the State or act within ordre publique as described but also certain acts which disturb public tranquility or are breaches of the peace. It is not necessary to give the expression a narrow meaning because, as has been observed, the expression "in the interest of public order" is very wide. Whatever may be said of "maintenance of public order" in the context of special laws entailing detention of persons without a trial on the pure subjective determination of the Executive cannot be said in other circumstances. In the former case this Court confined the meaning to graver episodes not involving cases of law and order which are not disturbances of public tranquility but of ordre publique."
(b) In Union of India vs. Yumnam Anand M17 the Hon'ble Supreme Court has held, at para 8, as under:
"8. In case of preventive detention no offence is proved, nor any charge is formulated and the justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. (See R. v. Halliday [1917 AC 260] and Kubic Darusz v. Union of India [(1990) 1 SCC 568]. But at the same time, a person's greatest of human freedoms i.e. personal liberty is deprived, and, therefore, the laws of preventive detention are strictly construed, and a meticulous compliance with the procedural safeguard, however technical, is mandatory. The compulsions of the primordial need to maintain 17 (2007) 10 SCC 190 : (2008) 1 SCC (Civ) 608 46 AAR, J & JS, J WP No. 34934 of 2022 order in society, without which enjoyment of all rights, including the right of personal liberty would lose all their meanings, are the true justifications for the laws of preventive detention. This jurisdiction has been described as a "jurisdiction of suspicion", and the compulsions to preserve the values of freedom of a democratic society and social order sometimes merit the curtailment of the individual liberty. (See Ayya v. State of U.P. [(1989) 1 SCC 374]). To lose our country by a scrupulous adherence to the written law, said Thomas Jefferson, would be to lose the law, absurdly sacrificing the end to the means. No law is an end itself and the curtailment of liberty for reasons of State's security and national economic discipline as a necessary evil has to be administered under strict constitutional restrictions. No carte blanche is given to any organ of the State to be the sole arbiter in such matters."
(c) In Munagala Yadamma v. State of A.P.18 the Hon'ble Supreme Court has held, at paras 7 and 9, as under:
"7. Having considered the submissions made on behalf of the respective parties, we are unable to accept the submissions made on behalf of the State in view of the fact that the decision in Rekha v. State of T.N. [(2011) 5 SCC 244], in our view, clearly covers the facts of this case as well. The offences complained of against the appellant are of a nature which can be dealt with under the ordinary law of the land. Taking recourse to the provisions of preventive detention is contrary to the constitutional guarantees enshrined in Articles 19 and 21 of the Constitution and sufficient grounds have to be made out by the detaining authorities to invoke such provisions.
9. No doubt, the offences alleged to have been committed by the appellant are such as to attract punishment under the Andhra Pradesh Prohibition Act, but that in our view has to be done under the said laws and taking recourse to preventive detention laws would not be warranted. Preventive detention involves detaining of a person without trial in order to prevent him/her from committing certain types of offences. But such detention cannot be made a substitute for 18 (2012) 2 SCC 386 : (2012) 1 SCC (Crl) 889 47 AAR, J & JS, J WP No. 34934 of 2022 the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes which the detenu may have committed. After all, preventive detention in most cases is for a year only and cannot be used as an instrument to keep a person in perpetual custody without trial. Accordingly, while following the three-Judge Bench decision in Rekha v. State of T.N. [(2011) 5 SCC 244] we allow the appeal and set aside the order passed by the High Court dated 20-7-2011 and also quash the detention order dated 15- 2-2011, issued by the Collector and District Magistrate, Ranga Reddy District, Andhra Pradesh."
(d) In Vasnthu Sumalatha vs. State of Andhra Pradesh19 a Division Bench of this Court has held as under:
"2. Preventive detention is a serious invasion of personal liberty and such meager safeguards as the Constitution has provided, against the improper exercise of the power, must be jealously watched and enforced by the Court (Ram Krishan Bharadwaj v. State of Delhi MANU/SC/0011/1953 : AIR 1953 SC 318). Article 22(3) (b) of the Constitution of India, which permits preventive detention, is an exception to Article 21 of the Constitution. An exception cannot, ordinarily, nullify the full force of the main rule, which is the right to liberty guaranteed under Article 21 of the Constitution. An exception can apply only in rare cases. The imposition of what is, in effect, a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with the ordinary concepts of the rule of law. Rekha v. State of T.N. MANU/SC/0366/2011 : (2011) 5 SCC 244; R.v. Secy. Of State for the Home Deptt., ex p Stafford (1998) 1 WLR 503 (CA)). The law of preventive detention can only be justified by striking the right balance between individual liberty on the one hand and the needs of an orderly society on the other. (Commr.
Of Police v. C. Anita MANU/SC/0661/2004 : (2004) 7 SCC 647; Union of India v. Amrit Lal Manchanda MANU/SC/0133/2004 : (2004) 3 SCC 75).
19 MANU/AP/0602/2015 48 AAR, J & JS, J WP No. 34934 of 2022
64. "Public order" is synonymous with public safety and tranquility. Public order, if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. Disorder is no doubt prevented by the maintenance of 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 (Ram Manohar Lohia MANU/SC/0054/1965 : AIR 1966 SC 740 ; C. Anita MANU/SC/0661/2004 : (2004) 7 SCC 467).
70. The detaining authority cannot wish away the fact that, in the grounds of detention, he has recorded his satisfaction of the need to detain the detenus as he apprehended their activities to be injurious to "public peace" and "law and order" neither of which are grounds for detaining a citizen, in preventive custody, under A.P. Act 1 of 1986. Even if the order and the grounds for detention are read together, the fact that the detaining authority has recorded his satisfaction in the Orders of detention on grounds of "public order", and in the grounds of detention, as affecting "public peace" and "law and order", reflect his confused state of mind, and lack of clarity of thought in satisfying himself whether the detention should be on grounds of "public order"
has acquired a meaning distinct from "law and order" and, as the detaining authority is not empowered to detain citizens on grounds that their activities are injurious to "public peace and law and order", his subjective satisfaction is based on extraneous and irrelevant considerations invalidating the orders of detention."
(e) In Pushkar Mukherjee (referred supra), the Hon'ble Supreme Court, at paras 13 and 15, has held as under:
"13........In the present case we are concerned with detention under Section 3(1) of the Preventive Detention Act which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. Does the expression "public order" take in every kind of infraction of order or only some categories thereof. It is manifest that every act of assault or injury to specific persons does not lead to public disorder. When two 49 AAR, J & JS, J WP No. 34934 of 2022 people quarrel and fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder. Such cases are dealt with under the powers vested in the executive authorities under the provisions of ordinary criminal law but the culprits cannot be detained on the ground that they were disturbing public order. The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large. In this connection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act. A District Magistrate is therefore entitled to take action under Section 3(1) of the Act to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances. In Dr Ram Manohar Lohia v. State of Bihar, [(1966) 1 SCR 709] it was held by the majority decision of this Court that the expression "public order" was different and does not mean the same thing as "law and order". The question at issue in that case was whether the order of the District Magistrate, Patna, under Rule 30(1)(b) of the Defence of India Rules, 1962, against the petitioner was valid. Rule 30(1)(b), provided that a State Government might, if it was satisfied with respect to a person that with a view to preventing him from acting in a manner prejudicial to "public safety and maintenance of public order" it is necessary to do so, order him to be detained. The order of the District Magistrate stated that he was satisfied that with a view to prevent the petitioner from acting in any manner prejudicial to the "public safety and the maintenance of law 50 AAR, J & JS, J WP No. 34934 of 2022 and order", it was necessary to detain him. Prior to the making of the order the District Magistrate had, however, recorded a note stating that having read the report of the Police Superintendent that the petitioner's being at large was prejudicial to "public safety" and "maintenance of public order", he was satisfied that the petitioner should be detained under the rule. The petitioner moved this Court under Article 32 of the Constitution for a writ of habeas corpus directing his release from detention, contending that though an order of detention to prevent acts prejudicial to public order may be justifiable an order to prevent acts prejudicial to law and order would not be justified by the rule. It was held by the majority judgment that what was meant by maintenance of public order was the prevention of disorder of a grave nature, whereas, the expression "maintenance of law and order" meant prevention of disorder of comparatively-lesser gravity and of local significance. At p. 746 of the Report, Hidayatullah, J., as he then was, observed as follows in the course of his judgment:
"It will thus appear that just as 'public order' in the rulings of this Court (earlier cited), was said to comprehend disorders of less gravity than those affecting 'security of State', 'law and order' also comprehends of less gravity than those affecting 'public order'. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of the State. It is then easy to see that an act may affect law and order, but not public order just as an act may affect public order but not security of the State. By using the expression 'maintenance of law and order' the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules."
15. The difference between the concepts of a "public order"
and "law and order" is similar to the distinction between "public" and "private" crimes in the realms of jurisprudence.51
AAR, J & JS, J WP No. 34934 of 2022 In considering the material elements of crime, the historic tests which each community applies are "intrinsic wrongfulness" and social expediency which are the two most important factors which have led to the designation of certain conduct as criminal. Dr Allen has distinguished "public" and "private" crimes in the sense that some offenses primarily injure specific persons and only secondarily the public interest, while others directly injure the public interest and affect individuals only remotely. (See Dr Allen's Legal Duties, p. 249). There is a broad distinction along these lines, but differences naturally arise in the application of any such test. The learned author has pointed out that out of 331 indictable English offenses, 203 are public wrongs and 128 private wrongs."
(Emphasis added)
(f) In Rekha vs State of Tamilnadu20, the Hon'ble Supreme Court, at paras 23 and 30, has held as under:
23. ....criminal cases are already going on against the detenu under various provisions of the Indian Penal Code as well as under the Drugs and Cosmetics Act, 1940 and if he is found guilty, he will be convicted and given appropriate sentence. In our opinion, the ordinary law of the land was sufficient to deal with this situation, and hence, recourse to the preventive detention law was illegal."
30. Whenever an order under a preventive detention law is challenged, one of the questions the court must ask in deciding its legality is : Was the ordinary law of the land sufficient to deal with the situation ? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was for selling expired drugs after changing their labels. Surely the relevant provisions in the Indian Penal Code and the Drugs and 20 (2011) 5 SCC 244 52 AAR, J & JS, J WP No. 34934 of 2022 Cosmetics Act were sufficient to deal with this situation.
Hence, in our opinion, for this reason also the detention order in question was illegal.
(Emphasis added)
(g) In Commr. of Police v. C. Anita,21, the Hon'ble Supreme Court, at paras 12 and 13, has held as under:
12. The true distinction between the areas of law and order and public order lies not merely in the nature or quality of the act, but in the degree and extent of its reach upon society. Acts similar in nature, but committed in different contexts and circumstances, might cause different reactions. In one case it might affect specific individuals only, and, therefore, touches the problem of law and order only, while in another it might affect public order. The act by itself, therefore, is not determinant of its own gravity. In its quality it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very different.
13. The two concepts have well-defined contours, it being well established that stray and unorganised crimes of theft and assault are not matters of public order since they do not tend to affect the even flow of public life. Infractions of law are bound in some measure to lead to disorder but every infraction of law does not necessarily result in public disorder. Law and order represents the largest scale within which is the next circle representing public order and the smallest circle represents the security of State. "Law and order" comprehends disorders of less gravity than those affecting "public order" just as "public order" comprehends disorders of less gravity than those affecting "security of State". (See Kuso Sah v. State of Bihar [(1974) 1 SCC 185 :
1974 SCC (Cri) 84] , Harpreet Kaur v. State of Maharashtra 21 (2004) 7 SCC 467 53 AAR, J & JS, J WP No. 34934 of 2022 [(1992) 2 SCC 177 : 1992 SCC (Cri) 370] , T.K. Gopal v.
State of Karnataka [(2000) 6 SCC 168 : 2000 SCC (Cri) 1037] and State of Maharashtra v. Mohd. Yakub [(1980) 3 SCC 57 : 1980 SCC (Cri) 513 : (1980) 2 SCR 1158] .)
(h) The Hon'ble Supreme Court in V.Shantha v. State of Telangana and Others22 while considering the various provisions of the Act has held as under:
"The detenu was the owner of Laxmi Bhargavi Seeds, district distributor of Jeeva Aggri Genetic Seeds. Three FIRs were lodged against the detenu and others under Sections 420, 120-B, 34 IPC and Sections 19 and 21 of the Seeds Act, 1966. It was alleged that chilli seeds sold were spurious, as they did not yield sufficient crops, thus causing wrongful loss to the farmers, and illegal gains to the accused. Whether the seeds were genuine or not, the extent of the yield, are matters to be investigated in the FIRs. Section 19 of the Seeds Act provides for penalty by conviction and sentence also. Likewise, Section 20 provides for forfeiture. Sufficient remedies for the offence alleged were, therefore, available and had been invoked also under the ordinary laws of the land for the offence alleged.
The order of preventive detention passed against the detenu states that his illegal activities were causing danger to poor and small farmers and their safety and financial wellbeing. Recourse to normal legal procedure would be time-consuming, and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the Preventive Detention Act as an extreme measure to insulate the society from his evil deeds. The rhetorical incantation of the words "goonda" or "prejudicial to maintenance of public order" cannot be sufficient justification to invoke the Draconian powers of preventive detention. To classify the detenu as a "goonda"
affecting public order, because of inadequate yield from the chilli seed 22 (2017) 4 SCC 577 54 AAR, J & JS, J WP No. 34934 of 2022 sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of preventive detention. The grounds of detention are ex facie extraneous to the Act."
The Hon'ble Supreme Court has further held that preventive detention involves detaining of a person without trial in order to prevent him/her from further committing certain types of offences. But such detention cannot be made a substitute for the ordinary law, and absolve the investigating authorities of their normal functions of investigating crimes which the detenu may have committed. After all, preventive detention in most cases is for a year only, and cannot be used as an instrument to keep a person in perpetual custody without trial.
(i) In the case of Ram Manohar Lohia (referred supra), 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 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.55
AAR, J & JS, J WP No. 34934 of 2022 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."
(j) In the case of Kanu Biswas v. State of West Bengal23, 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 merely an individual leaving the tranquility of the society undisturbed?"23
(1972) 3 SCC 831 56 AAR, J & JS, J WP No. 34934 of 2022
34) Further, the Hon'ble Supreme Court while dealing with the provisions of the Preventive Detention Act has held that the personal liberty of a person is a precious right, which cannot be tampered with by invoking the draconian powers under the Preventive Detention Act.
(a) In State of Maharashtra and Ors. v. Bhaurao Punjabrao Gawande24 the Hon'ble Supreme Court has held as follows:
23....personal liberty is a precious right. So did the Founding Fathers believe because, while their first object was to give unto the people a Constitution whereby a government was established, their second object, equally important, was to protect the people against the government. That is why, while conferring extensive powers on the government like the power to declare an emergency, the power to suspend the enforcement of fundamental rights or the power to issue ordinances, they assured to the people a Bill of Rights by Part III of the Constitution, protecting against executive and legislative despotism those human rights which they regarded as fundamental. The imperative necessity to protect these rights is a lesson taught by all history and all human experience. Our Constitution-makers had lived through bitter years and seen an alien Government trample upon human rights which the country had fought hard to preserve. They believed like Jefferson that "an elective despotism was not the Government we fought for". And, therefore, while arming the Government with large powers to prevent anarchy from within and conquest from without, they took care to ensure that those powers were not abused to mutilate the liberties of the people. 24 (2008) 3 SCC 613 57 AAR, J & JS, J WP No. 34934 of 2022
(b) In the Nine-Judge Constitution Bench decision in I.R. Coelho v. State of T.N.25 the Hon'ble Supreme Court has observed as follows:
"109. ......It is necessary to always bear in mind that fundamental rights have been considered to be (the) heart and soul of the Constitution
49. ..... Fundamental rights occupy a unique place in the lives of civilized societies and have been described in judgments as "transcendental", "inalienable", and primordial".
(c) In Frances Coralie Maullin vs. W.C. Khambra26 a Division Bench of the Hon'ble Supreme Court has held, at para 5, as under:
"5. We have no doubt in our minds about the role of the court in cases of preventive detention: it has to be one of eternal vigilance. No freedom is higher than personal freedom and no duty higher than to maintain it unimpaired. The Court's writ is the ultimate insurance against illegal detention. The Constitution enjoins conformance with the provisions of Article 22 and the Court exacts compliance. Article 22(5) vests in the detenu the right to be provided with an opportunity to make a representation. Here the Law Reports tell a story and teach a lesson. It is that the principal enemy of the detenu and his right to make a representation is neither high- handedness nor mean-mindness but the casual indifference, the mindless insensibility, the routine and the red tape of the bureaucratic machine."
(d) In Yumman Ongbi Lembi Leima (referred supra), the Hon'ble Supreme Court has held that the personal liberty of an individual is the most precious and prized right guaranteed under 25 (2007) 2 SCC 1 26 (1970) 3 SCC 746 58 AAR, J & JS, J WP No. 34934 of 2022 the Constitution in Part III thereof. The State has been granted the power to curb such rights under criminal laws, as also under the laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order.
(e) In Vasnthu Sumalatha (referred supra), the Division Bench of this Court has held, at para 3, as under:
"3. The power of preventive detention is a frightful and awesome power with drastic consequences affecting personal liberty which is the most cherished and prized possession of man in a civilised society. The said power has to be exercised with the greatest care and caution, and it is the duty of the Courts to ensure that this power is not abused or misused. (Durgam Subramanyam v. Government of A.P. MANU/AP/1179/2012 : 2013 (4) ALT 243 (D.B); Francis Coralie Mullin v. UT of Delhi [MANU/SC/0517/1981 : AIR 1981 SC 746). The power of preventive detention must be confined to very narrow limits, otherwise the right to liberty would be rendered nugatory. To prevent misuse of this potentially dangerous power, the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however technical, is mandatory and vital. (Rekha vs. State of T.N. MANU/SC/0366/2011 : (2011) 5 SCC 244). When it comes to fundamental rights under the Constitution, the Court, irrespective of the enormity and gravity of allegations made against the detenu, must intervene. The gravity of the evil to the community, resulting from anti-social activities, cannot furnish sufficient reason for invading the personal liberty of a citizen, except 59 AAR, J & JS, J WP No. 34934 of 2022 in accordance with the procedure established by law, particularly as normal penal laws would still be available for being invoked instead of keeping a person in detention without trial."
35) Admittedly, in the present case, out of three crimes registered against the detenu and relied by the detaining authority, two crimes viz., Crime No.68 of 2022 of Mangalhat Police Station and Crime No.71 of 2022 of Shahinayathgunj Police Station, pertain to the months of February and April, 2022, wherein the detenu is alleged to have made some derogatory remarks against a particular religion. It is to be noted that even though the crimes were registered in the month of February and April, 2022, the detenu has been served notices under Section 41-A Cr.P.C. only on 25.08.2022 at 11.00 a.m. Even though the learned Advocate General has stated that the detenu was well aware of the registration of Crime No.68 of 2022 of Mangalhat Police Station and Crime No.71 of 2022 of Shahinayathgunj Police Station in the months of February and April, 2022 respectively and has relied on various newspaper clippings to show that registration of crimes was widely published in the news papers and therefore, it cannot be said that the detenu was not aware of registration of said crimes against him, the same cannot be countenanced as the petitioner was neither put on notice about registration of the said crimes at earlier point of time nor arrested in connection with said crimes. It 60 AAR, J & JS, J WP No. 34934 of 2022 is also pertinent to note that the present detention order was served 3 ½ hours after notices under Section 41-A Cr.P.C. were issued on 25.08.2022 at 11.00 a.m. It is also to be noted that on 23.08.2022 i.e. two days prior to the passing of the impugned detention order, the detenu was arrested in connection with crime No.261 of 2022 of Mangalhat Police Station and he was enlarged on bail by the learned Metropolitan Magistrate by imposing certain conditions. Therefore, there was no reason for the authority to pass a detention order 3 ½ hours after serving 41-A Cr.P.C. notices in the earlier two crimes i.e. Crime No.68 of 2022 of Mangalhat Police Station and Crime No.71 of 2022 of Shahinayathgunj Police Station. There is absolutely no reason given or explanation submitted by the authority concerned in the counter or in the arguments of the learned Advocate General with regard to serving of the impugned detention order at 2.30 p.m. on the same day after the 41-A Cr.P.C. notices dated 25.08.202 were served on the detenu on 25.08.2022 at 11.00 a.m. Moreover, as seen from the notices issued under Section 41-A Cr.P.C. in connection with Crime No.68 of 2022 of Mangalhat Police Station and Crime No.71 of 2022 of Shahinayathgunj Police Station, the same do not indicate as to on what date or at what time the detenu has to be present before the authority concerned, as envisaged under the provision of Section 41-A Cr.P.C. It is also pertinent to note that 61 AAR, J & JS, J WP No. 34934 of 2022 among other conditions in the said 41-A Cr.P.C. notice, the detenu was directed to comply with the following conditions:
"(a) You shall not commit any offence in future:
Failure to comply with the terms of this Notice, can render you liable for arrest under Section 41A (3) and (4) of Cr.P.C."
36) It is to be noted that it is not even the case of the authorities that even after issuance of notices under Section 41-A Cr.P.C., the detenu has violated any of the conditions, which were directed to be complied with by the detenu.
37) In this context, it is to pertinent to note that Section 41-A Cr.P.C. is aimed to avoid unnecessary arrest or threat of arrest looming large on the accused requires to be vitalised. Section 41-A as inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008, which is relevant in the present context, reads as under:
"41-A. Notice of appearance before police officer.- (1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.62
AAR, J & JS, J WP No. 34934 of 2022 (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offence mentioned in the notice."
(Emphasis added)
38) The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41 (1) Cr.P.C., the police officer is required to issue notice directing the accused to appear before the said police officer on a particular day and at a particular time and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.
39) As seen from the record, the impugned detention order was passed in derogation of the provision of Section 41-A CrPC and the law laid down by the Hon'ble Supreme Court in Arnesh Kumar v. 63
AAR, J & JS, J WP No. 34934 of 2022 State of Bihar27. There was absolutely no justification for the Detaining Authority to pass the impugned detention order dated 25.08.2022 and serving the same at 2-30 p.m. after serving the 41-A Cr.P.C. notice in the earlier two crimes i.e. Crime No.68 of 2022 of Mangalhat Police Station and Crime No.71 of 2022 of Shahinayathgunj Police Station that too at 11.00 a.m. on 25.08.2022, more so, when there is no violation of the conditions imposed by the police authorities.
40) It is also pertinent to note that after registration of crime No.261/2022 of Mangalhat Police Station on 22.08.2022, the detenu was arrested on 23.08.2022 and produced before the XIV Additional Chief Metropolitan Magistrate, but the learned Metropolitan Magistrate has rejected the remand application made by the police authorities and released the detenu on bail while imposing the following conditions:
"That the accused shall execute a personal bond of Rs.20,000/- and also file an undertaking that he will not indulge in any kind of such offences in future and also endeavour to stop the tension prevailing into the society if any and shall co-operate with the Investigating Agency by making himself available as and when called by the Investigation Agency."
41) Admittedly, it is not the case of the Detaining Authority that after the bail has been granted by the Additional Chief 27 2014 (2) ALT (Crl.) 457 (SC) 64 AAR, J & JS, J WP No. 34934 of 2022 Metropolitan Magistrate vide order dated 23.08.2022, the detenu has either indulged in committing crimes of similar nature or violated the conditions of bail. The Hon'ble Supreme Court in a catena of cases has held that the Detaining Authority while passing the detention orders should be very cautious and careful where the person has been enlarged on bail.
(a) In Vijay Narain Singh vs. State of Bihar28 a three-Judge Bench of the Hon'ble Supreme Court has held, at para 32, as under:
"32. ...... It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardized unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorizing such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinizing the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court."
(Emphasis added) 28 (1984) 3 SCC 14 : 1984 SCC (Crl) 361 65 AAR, J & JS, J WP No. 34934 of 2022
(b) In Vasnthu Sumalatha (referred supra), the Division Bench of this Court has held as under:
"45. The question whether, on the date of passing the order of detention, the detenu was in custody or not is a relevant fact. It would also be a relevant fact whether he is free on that date and, if he is, whether he is subjected to certain conditions pursuant to, and in furtherance of, the order of bail. If pursuant to, or in furtherance of, such conditions he may be able to flee from justice, that may be a relevant consideration in passing an order of detention. Other grounds, raised in the application for bail and forming the basis for passing an order of bail, may also be relevant. It would, however, not be correct to contend that, irrespective of the nature of the application for bail or irrespective of the nature of the restrictions, if any, placed by the Court of competent jurisdiction, in releasing the detenu on bail, the same must invariably and mandatorily be placed before the detaining authority, and copies thereof supplied to the detenu (Sunila Jain v. Union of India MANU/SC/8053/2006 : (2006) 3 SCC 321)."
(c) In Banka Sneha Sheela v. State of Telangana29, the Hon'ble Supreme Court has held as under:
"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 detenu, 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. Consequently, it is unnecessary to go into any of the other grounds argued by the learned counsel on behalf of the petitioner. The impugned judgment is set aside and the detenu is ordered to be freed forthwith. Accordingly, the appeal is allowed."29
(2021) 9 SCC 415 66 AAR, J & JS, J WP No. 34934 of 2022
42) One of the main objectives for passing the orders under the Preventive Detention Act is to see that the detenu does not commit crimes of similar nature in the near future.
(a) The relevant observations made by this Court in Vasnthu Sumalatha (referred supra), are as under:
5. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done, but to prevent him from doing it. Its basis is the satisfaction of the Executive of a reasonable probability of the detenu acting in a manner similar to his past acts, and preventing him by detention from so doing. A criminal conviction on the other hand is for an act already done, by a trial and legal evidence. There is no parallel as one is punitive and the other preventive. In a criminal case a person is punished on proof of his guilt and the standard is proof beyond reasonable doubt. In preventive detention, a man is prevented from doing something which it is necessary to prevent. ..... The order of detention is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances (Haradhan Saha MNU/SC/0419/1974 : (1975) 3 SCC
198).
38. Exercise of the power of detention is made dependent on the subjective satisfaction of the detaining authority that, with a view to prevent a person from acting in a prejudicial manner as set out in the provision, it is necessary to detain such person. The words "if satisfied" in Section 3(1) of Act 1 of 1986 imports subjective satisfaction on the part of the detaining authority before an order of detention is made. The power of detention is clearly a preventive measure. It does not partake the nature of punishment. It is taken by way of precaution to prevent harm to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all 67 AAR, J & JS, J WP No. 34934 of 2022 cases, to some extent, on suspicion or anticipation as distinct from proof. (Khudiram Das MANU/SC/0423/1974 : (1975) 2 SCC 81).
(b) In Sama Aruna v. State of Telangana30, the Hon'ble Supreme Court has held, at para 16, as under:
"16. Obviously, therefore, the power to detain, under the 1986 Act can be exercised only for preventing a person from engaging in, or pursuing or taking some action which adversely affects or is likely to affect adversely the maintenance of public order; or for preventing him from making preparations for engaging in such activities. There is little doubt that the conduct or activities of the detenu in the past must be taken into account for coming to the conclusion that he is going to engage in or make preparations for engaging in such activities, for many such persons follow a pattern of criminal activities. But the question is how far back? There is no doubt that only activities so far back can be considered as furnish a cause for preventive detention in the present. That is, only those activities so far back in the past which lead to the conclusion that he is likely to engage in or prepare to engage in such activities in the immediate future can be taken into account."
43) In this particular case, the learned Metropolitan Magistrate has already imposed certain conditions on the detenu while granting bail, but the said conditions have not been specifically referred to in the impugned detention order. It is not even the case of the authorities that after the conditional bail was granted by the learned Metropolitan Magistrate, the detenu has violated the bail conditions and therefore the impugned detention order was 30 (2018) 12 SCC 150 68 AAR, J & JS, J WP No. 34934 of 2022 passed. Therefore, there was no compelling reason for the Detaining Authority to pass the impugned detention order.
44) That insofar as the contention of the petitioner that illegible copies have been served on him is concerned, the law holding the field is as under.
(a) In Vasnthu Sumalatha (referred supra), the Division Bench of this Court has held as under:
"126. Our attention was drawn to the documents filed by the detaining authorities, along with their counter affidavits, to show that a few of the pages are illegible. On being satisfied that the pages pointed out to us were, indeed, illegible, we asked the learned Advocate General if he could read at least a few lines in these pages. While fairly expressing his inability to read them, Learned Advocate General would, however, contend that all that the law requires is for a gist of these allegations to be made known to the detenu, and the mere fact that a few of the pages are illegible is of no consequence. If copies of the documents, supplied at the request of the detenu, are illegible, the safeguards provided by the Constitution must be held to have not been followed. (Manjit Singh Grewal v. Union of India 1990 (Supp) SCC 59). Failure to supply legible copies has affected the right of detenu to submit an effective representation, and has thereby rendered his continued detention illegal.
(b) In Ramchandra A. Kamat vs. Union of India31, the Hon'ble Supreme Court has held, at para 6, as under:
"6. The right to make a representation is a fundamental right. The representation thus made should be considered expeditiously by the government. In order to make an effective
31 (1980) 2 SCC 270 69 AAR, J & JS, J WP No. 34934 of 2022 representation, the detenu is entitled to obtain information relating to the grounds of detention. When the grounds of detention are served on the detenu, he is entitled to ask for copies of the statements and documents referred to in the grounds of detention to enable him to make an effective representation. When the detenu makes a request for such documents, they should be supplied to him expeditiously. The detaining authority in preparing the grounds would have referred to the statements and documents relied on in the grounds of detention and would be ordinarily available with him - when copies of such documents are asked for by the detenu the detaining authority should be in a position to supply them with reasonable expedition. What is reasonable expedition will depend on the facts of each case."
(c) In The State of Manipur vs. Buyamayum Abdul Hanan @ Anand32, the Hon'ble Supreme Court has held as under:
"21. Thus, the legal position has been settled by this Court that the right to make representation is a fundamental right of the detenu under Article 22(5) of the Constitution and supply of the illegible copy of documents which has been relied upon by the detaining authority indeed has deprived him in making an effective representation and denial thereof will hold the order of detention illegal and not in accordance with the procedure contemplated under law."
(d) In P. Surendra vs. The State of Andhra Pradesh (Telangana and Andhra Pradesh)33, a Division Bench of this Court has held as under:
"48. While the challenge to the order of detention, on the ground that normal laws would suffice and resort to preventive detention is not justified, must fail, the order of detention is vitiated as there was no material before the detaining authority in arriving at the satisfaction that the detenu was likely to be released on bail, as
32 MANU/SC/1366/2022 33 Law Finder Doc ID #743643 70 AAR, J & JS, J WP No. 34934 of 2022 some of the documents supplied to the detenu were illegible resulting in denial of the detenus right to make an effective representation, and as the order of the detaining authority suffers from non-application of mind for having taken into consideration erroneous facts that charge- sheets had been filed against the detenu when, in fact, no charge- sheet was filed. The detenus continued detention is, thereby, rendered illegal."
45) Even though the learned counsel for the petitioner has drawn the attention of the Court to the copies served on the petitioner, which demonstrates that they are not legible and readable, but the learned Advocate General has placed on record the original copies of the material papers, which were served on the detenu, to show that the same are legible and readable. Learned Advocate General has stated that due to some fault in the photocopying machine, some of the papers might be illegible and the same cannot be a ground for setting aside the impugned detention order. This Court is not dwelling into this aspect as the petitioner has already made his representation to the Government and the same was already considered and rejected by the Advisory Board.
46) Further, the main allegation on which the detention order is passed is that the detenu has used derogatory remarks against the Prophet and the word 'Aaka' can only be used to refer to the Prophet.
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47) The learned Advocate General has relied on the Fatwa issued by Darul Ifta, Darul Uloom, Deoband, Uttar Pradesh, which is an Islamic Seminary in India, which states that the words 'Akha/Moula' can be used for Prophet of Islam also.
48) The different meanings are given for 'akha/moula' in the Fatwa issued by the Darul Uloom Deoband, an Islamic Seminary, on which much reliance has been placed by the learned Advocate General. Relevant portion of the Fatwa is extracted hereunder:
"Malik, Kudavand, sahib, husband, hakim, officer (Ferox ul lughat page No.25 madda : AQ).
Meaning of moula is: Malik, akha, sahib, wali, sardar, khuda-e tala: Badsha, Sultan, Hakim, Shahensha, freed servant, asst., mavin, Dosth, Shareefm Sathi, Hazrath, Janab (Almarja Alsaber page 217, mada : mo) about two words are not particular or Allah Tala. They can be used for prophet of Islam also."
49) But, it is to be noted that in Vishwa Lochan Madan v. Union of India34, the Hon'ble Supreme Court has held as under:
13. As it is well settled, the adjudication by a legal authority sanctioned by law is enforceable and binding and meant to be obeyed unless upset by an authority provided by law itself. The power to adjudicate must flow from a validly made law. A person deriving benefit from the adjudication must have the right to enforce it and the person required to make provision in terms of adjudication has to comply that and on its failure consequences as provided in law are to
34 (2014) 7 SCC 707 72 AAR, J & JS, J WP No. 34934 of 2022 ensue. These are the fundamentals of any legal judicial system. In our opinion, the decisions of Dar-ul-Qaza or the fatwa do not satisfy any of these requirements. Dar-ul-Qaza is neither created nor sanctioned by any law made by the competent legislature. Therefore, the opinion or the fatwa issued by Dar-ul-Qaza or for that matter anybody is not adjudication of dispute by an authority under a judicial system sanctioned by law. A Qazi or Mufti has no authority or powers to impose his opinion and enforce his fatwa on anyone by any coercive method. In fact, whatever may be the status of fatwa during Mogul or British Rule, it has no place in independent India under our constitutional scheme. It has no legal sanction and cannot be enforced by any legal process either by the Dar-ul-Qaza issuing that or the person concerned or for that matter anybody. The person or the body concerned may ignore it and it will not be necessary for anybody to challenge it before any court of law. It can simply be ignored. In case any person or body tries to impose it, their act would be illegal. Therefore, the grievance of the petitioner that Dar-ul-Qazas and Nizam-e- Qaza are running a parallel judicial system is misconceived.
15. The object of establishment of such a court may be laudable but we have no doubt in our mind that it has no legal status. It is bereft of any legal pedigree and has no sanction in laws of the land. They are not part of the corpus juris of the State. A fatwa is an opinion, only an expert is expected to give. It is not a decree, nor binding on the court or the State or the individual. It is not sanctioned under our constitutional scheme. But this does not mean that existence of Dar-ul-Qaza or for that matter practice of issuing fatwas are themselves illegal. It is informal justice delivery system with an objective of bringing about amicable settlement between the parties. It is within the discretion of the persons concerned either to accept, ignore or reject it. However, as the fatwa gets strength from the religion; it 73 AAR, J & JS, J WP No. 34934 of 2022 causes serious psychological impact on the person intending not to abide by that. As projected by Respondent 10 "Godfearing Muslims obey the fatwas". In the words of Respondent 10 "it is for the persons/parties who obtain fatwa to abide by it or not". He, however, emphasises that "the persons who are Godfearing and believe that they are answerable to the Almighty and have to face the consequences of their doings/deeds, such are the persons, who submit to the fatwa". Imrana's case is an eye-opener in this context. Though she became the victim of lust of her father-in-law, her marriage was declared unlawful and the innocent husband was restrained from keeping physical relationship with her. In this way a declaratory decree for dissolution of marriage and decree for perpetual injunction were passed. Though neither the wife nor the husband had approached for any opinion, an opinion was sought for and given at the instance of a journalist, a total stranger. In this way, the victim has been punished. A country governed by rule of law cannot fathom it.
16. In our opinion, one may not object to issuance of fatwa on a religious issue or any other issue so long it does not infringe upon the rights of individuals guaranteed under the law. Fatwa may be issued in respect of issues concerning the community at large at the instance of a stranger but if a fatwa is sought by a complete stranger on an issue not concerning the community at large but individual, then the Dar-ul-Qaza or for that matter anybody may consider the desirability of giving any response and while considering it should not be completely unmindful of the motivation behind the fatwa. Having regard to the fact that a fatwa has the potential of causing immense devastation, we feel impelled to add a word of caution. We would like to advise the Dar-ul-Qaza or for that matter anybody not to give any response or issue fatwa concerning an individual, unless asked for by the person involved or the person having direct 74 AAR, J & JS, J WP No. 34934 of 2022 interest in the matter. However, in a case the person involved or the person directly interested or likely to be affected being incapacitated, by any person having some interest in the matter. Issuance of fatwa on rights, status and obligation of individual Muslims, in our opinion, would not be permissible, unless asked for by the person concerned or in case of incapacity, by the person interested. Fatwas touching upon the rights of an individual at the instance of rank strangers may cause irreparable damage and therefore, would be absolutely uncalled for. It shall be in violation of basic human rights. It cannot be used to punish the innocent. No religion including Islam punishes the innocent. Religion cannot be allowed to be merciless to the victim. Faith cannot be used as the dehumanising force.
17. In the light of what we have observed above, the prayer made by the petitioner in the terms sought for cannot be granted. However, we observe that no Dar-ul-Qazas or for that matter, anybody or institution by any name, shall give verdict or issue fatwa touching upon the rights, status and obligation, of an individual unless such an individual has asked for it. In the case of incapacity of such an individual, any person interested in the welfare of such person may be permitted to represent the cause of individual concerned. In any event, the decision or the fatwa issued by whatever body being not emanating from any judicial system recognised by law, it is not binding on anyone including the person, who had asked for it. Further, such an adjudication or fatwa does not have a force of law and, therefore, cannot be enforced by any process using coercive method. Any person trying to enforce that by any method shall be illegal and has to be dealt with in accordance with law.
(Emphasis Added) 75 AAR, J & JS, J WP No. 34934 of 2022
50) Even otherwise, the translated copy of the said Fathwa shows that number meanings can be ascribed to the word 'Aaka' and does not necessarily refer only to the Prophet. Therefore, it cannot be said that the alleged speech delivered by the detenu can only be attributed to the Prophet. When number of meanings can be attributed to a particular word, it cannot be said that the meaning ascribed to that word by the detaining authority is the correct one and therefore the view taken by the detaining authority has to be sustained.
51) That insofar as the other contentions raised by the learned Advocate General that due to the derogatory/hate speeches made by the detenu, there was a breakdown of law & order and number of crimes were registered against the sporadic incident of violence which took place in different parts of the City and crimes were registered is concerned, it is to be noted that except registration of the said crimes, no arrest has been made nor any statistics have been placed on record to show that the violence continued unabated, for a number of days disturbing the public peace and tranquillity in the State. The newspaper clippings filed by the authorities along with the counter reveal that most of the dharnas, rasta rokos were organised by some local political parties. Moreover, only four sporadic incidents have taken place in twin 76 AAR, J & JS, J WP No. 34934 of 2022 cities of Hyderabad and Secunderabad as seen from the number of FIRs registered and they have been dealt with in accordance with law. Therefore, the registration of these four crimes cannot be a ground for passing of the impugned detention order as it is for the authorities concerned to maintain the law and order and take necessary action against the persons concerned, merely because some incidents of violence have taken place, the same cannot be a ground for invoking the provisions of Preventive Detention Act.
52) Even though the learned Advocate General has referred to various judgments of the Hon'ble Supreme Court with regard to hate speeches to support the impugned detention order, reliance on the same is misplaced. There is absolutely no quarrel with the proposition of law laid down by the Hon'ble Supreme Court in the judgments relied by the learned Advocate General, but a careful perusal of the said judgments shows that in all those cases the Hon'ble Supreme Court has directed the authorities concerned to register cases against the persons making the derogatory or hate speeches under the normal Penal Code and other relevant enactments but the Hon'ble Supreme Court has not held that the provisions of the Preventive Detention Act can be invoked against the person making those hate speeches.
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53) Insofar as furnishing copies of the material papers to the detenu by the authorities in not known language to the detenu is concerned, in Krishna vs. The State of Telangana35, a Division Bench of this Court has held as under:
"..... under Section 8 of the Act, when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made. The Apex Court in a number of judgments held that the requirement of furnishing the grounds and the material relied upon by the detaining authority, to the detenu cannot be said to be satisfied unless the grounds and the material are not translated and supplied to the detenu in the language known to him."
(a) Further, in Vasnthu Sumalatha (referred supra), another Division Bench of this Court has held, at para 30, as under:
130. In Lallubhai Jogibhai Patel MANU/SC/0216/1980 :
(1981) 2 SCC 427 : AIR 198 SC 728, the grounds of detention were drawn up in English, though the detenu did not know English; and the Police Inspector, who served the grounds of detention on the detenu, filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu. The Supreme Court held that this was not sufficient compliance with the mandate of Article 22 (5) of the Constitution, which required that the grounds of detention must be "communicated" to the detenu, "Communicate"
meant that sufficient knowledge, of the basic facts constituting the "grounds", should be imparted effectively, and fully to the detenu in writing, in a language which he understood; the whole purpose of communicating the "grounds" to the detenu was to enable him to make a purposeful and effective representation; and if the "grounds" were only verbally explained to the detenu, and nothing in writing was left with him in a language which he understood, then that purpose 35 2017 (1) ALT (Crl) 352 (DB) 78 AAR, J & JS, J WP No. 34934 of 2022 was not served, and the constitutional mandate in Article 22(5) was infringed."
54) It would be apt to refer to the order of the Hon'ble Supreme Court in Mallada K Sri Ram v. State of Telangana36 snthu Sumalatha (referred supra), wherein the Hon'ble Supreme Court has held, at paras 15 and 17, as under:
"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 detenu was released on bail on 8 January 2021 and detained with effect from 26 June 2021. The nature of the allegations against the detenu 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 detenu are capable of being dealt by the ordinary course of criminal law.
17. It is also relevant to note, that in the last five years, this Court has quashed over five detention orders under the Telangana Act
36 2022 LawSuit (SC) 451 79 AAR, J & JS, J WP No. 34934 of 2022 of 1986 for inter alia incorrectly applying the standard for maintenance of public order [V Shantha v. State of Telangana, 2017 14 SCC 577; Banka Sneha Sheela v. State of Telangana 2021 9 SCC 415;] and relying on stale materials while passing the orders of detention [Sama Aruna v. State of Telangana 2018 12 SCC 150; Khaja Bilal Ahmed v. State of Telangana 2020 13 SCC 632]. At least ten detention orders under the Telangana Act of 1986 have been set aside the High Court of Telangana in the last one year itself. These numbers evince a callous exercise of the exceptional power of preventive detention by the detaining authorities and the respondent- state. We direct the respondents to take stock of challenges to detention orders pending before the Advisory Board, High Court and Supreme Court and evaluate the fairness of the detention order against lawful standards."
55) Admittedly, in this particular case also the Confirmation Order vide G.O.Rt.No.1977 General Administration (Spl. (Law & Order) Department, dated 19.10.2022, has not been supplied to the detenu in the language known to the detenu i.e. Hindi even as on the date of hearing of the main case and on this ground also the impugned detention order is liable to be set aside. In the absence of any record or statistics to show that any untoward incidents have taken place after the 41-A Cr.P.C. notices were served in crime No.68 of 2022 of Mangalhat Police Station and crime No.71 of 2022 of Shahinayatgunj Police Station or that the detenu has violated the bail conditions imposed by the learned Additional Chief Metropolitan Magistrate in crime No.261 of 2022 of Mangalhat Police Station, the reasons given by the detaining 80 AAR, J & JS, J WP No. 34934 of 2022 authority for passing the impugned detention order are misplaced and cannot be sustained.
56) It is apt to note the following observations made by the Hon'ble Supreme Court in Banka Sneha Sheela (referred supra):
"15. ..... 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 detenu, there can be no doubt that the harm, danger or alarm or feeling of insecurity among the general public spoken of in Section 2(a) of the Telangana Preventive of Dangerous Activities Act is make-believe and totally absent in the facts of the present case."
57) In that view of the matter, the respondent authorities are always at liberty to file an application before the concerned Additional Chief Metropolitan Magistrate seeking cancellation of the bail granted to the detenu, in case the detenu violates any of the conditions of bail.
58) For the reasons elaborately stated in the preceding paragraphs and also the propositions of law laid down by the Hon'ble Supreme Court in the judgments referred to above, viewed from any angle, the impugned detention order cannot be sustained 81 AAR, J & JS, J WP No. 34934 of 2022 and is liable to be aside. However, taking into consideration the apprehensions expressed by the learned Advocate General, we would like to impose certain conditions on the detenu.
59) In the result, the Writ Petition is allowed. The impugned detention order passed by respondent No.2 vide SB (1) No.156/PD- 1/HYD/2022, dated 25.08.2022, approved by respondent No.1 vide G.O.Rt.No.1651 General Administration (Spl. Law & Order) Department, dated 26.08.2022 and confirmed by respondent No.1 vide G.O.Rt.No.1977 General Administration (Spl. {Law & Order}) Department, dated 19.10.2022, are hereby set aside. The respondents are directed to set the detenu viz., T. Raja Singh Lodh @ Raju Singh @ Raja Singh at liberty forthwith, in case he is no longer required in any other criminal case and subject to the following conditions:
1) Except Mr. Karuna Sagar, learned counsel, the wife and immediate family members (4) of the detenu, no other person shall be present inside or outside the jail when the detenu is released;
2) The detenu shall not participate or hold any celebratory rallies/meetings after his release;
3) The detenu shall not give any interviews to any kind of media houses including the print media;
4) In future, the detenu shall not make any provocative speeches against any religion or post any derogatory or 82 AAR, J & JS, J WP No. 34934 of 2022 offensive posts on any social media platforms like Facebook, Twitter, Whatsapp, Youtube, etc. It is made clear that the above conditions are in addition to the conditions already imposed by the learned XIV Additional Chief Metropolitan Magistrate in crime No.261 of 2022, dated 23.08.2022.
60) It is further made clear that the views and observations made by this Court in the present order are only for the purpose of effective adjudication of the validity of the impugned detention order only. The criminal cases registered against the detenu and pending adjudication before the Criminal Courts respectively shall be dealt with independently on their own merits without being influenced by the observations made in the present order.
The miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.
____________________ A.ABHISHEK REDDY, J __________________ JUVVADI SRIDEVI, J Date : 09-11-2022.
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