Telangana High Court
Dharavath Kavitha vs The State Of Telangana And 3 Othes on 11 July, 2022
Author: Shameem Akther
Bench: Shameem Akther, N.Tukaramji
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE N.TUKARAMJI
WRIT PETITION No.14952 OF 2022
ORDER:(Per Hon'ble Dr. Justice Shameem Akther) Smt. Dharavath Kavitha, the petitioner, has filed this Habeas Corpus petition on behalf of her husband, Dharavath Veerabhadru @ Veerabhadram, S/o. Chandru, the detenu, challenging the detention order vide Rc.No.C2/523/2022, dated 03.03.2022, passed by the respondent No.2-Collector and District Magistrate, Warangal, whereby, the detenu was detained under Section 3(1) & (2) read with Section 2(a) & (b) of the Telangana Preventive Detention Act, 1986 (Act 1 of 1986), and the consequential confirmation order vide G.O.Rt.No.1076, General Administration (Spl. (Law & Order)) Department, dated 21.05.2022, passed by the Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana.
2. Heard the learned counsel for the petitioner, learned Assistant Government Pleader for Home representing the learned Advocate General appearing for the respondents and perused the record.
2 Dr.SA,J & NTR,J W.P.No.14952 of 2022
3. Learned counsel for the petitioner would submit that by relying on four crimes viz., C.O.R.Nos.102 of 2021 of Prohibition and Excise Station, Narsampet, Warangal District, registered for the offences under Section 7(A) read with 8(e) of the Prohibition Act, 1995, and Section 34(e) of the Excise Act, 1968; C.O.R.Nos.148 and 269 of 2021 of Prohibition and Excise Station, Narsampet, registered for the offence under Section 34(e) of the Excise Act, and Crime No.277 of 2021 of Prohibition and Excise Station, Narsampet, registered for the offence under Section 7(A) read with 8(e) of the Prohibition Act, the respondent No.2 passed the impugned detention order, dated 03.03.2022. Subsequently, the impugned detention order was confirmed by the Government, vide G.O.Rt.No.1076, dated 21.05.2022. Out of the said four crimes, in three crimes viz., C.O.R.Nos.102, 148 and 269 of 2021, notice under Section 41A Cr.P.C. was issued to the detenu. In C.O.R.No.277 of 2021, the detenu was remanded to judicial custody on 02.03.2022. On the very next day i.e., on 03.03.2022, the impugned detention order was passed. The said crimes relied on by the detaining authority do not add up to "disturbing the public order" and they are confined within the ambit and scope of the words "law and order". Since the offences 3 Dr.SA,J & NTR,J W.P.No.14952 of 2022 alleged are under the Prohibition Act and Excise Act, the detenu can certainly be tried and convicted under the said special laws. Therefore, there was no need for the detaining authority to invoke the draconian preventive detention law against the detenu. Hence, the impugned orders are legally unsustainable and ultimately, prayed to allow the Writ Petition, as prayed for.
4. On the other hand, the learned Assistant Government Pleader for Home appearing for the respondents supported the impugned orders and submitted that the detenu is a 'bootlegger'. He is repeatedly indulging in the activities of possession, purchase, transport and sale/distribution of illicitly distilled liquor, jaggery and alum in contravention of the provisions under the Prohibition Act and the Excise Act. He is also abetting the commission of the said illegal activities. Thus, the acts of the detenu are severely affecting and damaging the very societal fabric and health of the public at large and also adversely affecting the maintenance of public order. Though notices under Section 41A Cr.P.C. were issued to the detenu in Crime Nos.102, 148 and 269 of 2021, he did not mend his attitude and committed the offence in Crime No.277 of 2021. The four crimes relied on by the detaining authority amount to disturbance of public order at large. The series 4 Dr.SA,J & NTR,J W.P.No.14952 of 2022 of crimes allegedly committed by the detenu were sufficient to cause a feeling of insecurity in the minds of the people at large. Therefore, the detaining authority and the Government are justified in passing the impugned orders. The impugned orders are legally sustainable and ultimately, prayed to dismiss the Writ Petition.
5. In view of the submissions made by both the sides, the point that arises for determination in this Writ Petition is:
"Whether the impugned detention order vide Rc.No.C2/523/2022, dated 03.03.2022, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.1076, General Administration (Spl. (Law & Order)) Department, dated 21.05.2022, passed by the Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana, are liable to be set aside?"
POINT:
6. In catena of cases, the Hon'ble Supreme Court had clearly opined that there is a vast difference between "law and order" and "public order". The offences committed against a particular individual fall within the ambit of "law and order" and when the public at large is adversely affected by the criminal activities of a person, such activities of that person are said to disturb the public order. Moreover, individual cases can be dealt with by the criminal 5 Dr.SA,J & NTR,J W.P.No.14952 of 2022 justice system. Therefore, there is no need for the detaining authority to invoke the draconian preventive detention laws against an individual. Hence, according to the Hon'ble Apex Court, the detaining authority should be wary of invoking the immense power under the Act.
7. In Ram Manohar Lohia v. State of Bihar1, the Hon'ble Supreme Court has, in fact, deprecated the invoking of the preventive law in order to tackle a law and order problem. It was observed that every breach of public peace and every violation of law may create a 'law and order' problem, but does not necessarily create a problem of 'public order'. The distinction has to be borne in mind in view of what has been stated in the grounds of detention.
8. In Kanu Biswas v. State of West Bengal2, the Hon'ble Apex Court, while discussing the meaning of word 'public order,' held that the question whether a man has only committed a breach of 'law and order' or has acted in a manner likely to cause a disturbance of the 'public order', is a question of degree and extent of the reach of the act upon the Society.
1 AIR 1966 SC 740 2 (1972) 3 SCC 831 6 Dr.SA,J & NTR,J W.P.No.14952 of 2022
9. In another recent judgment in Shaik Nazneen v. The State of Telangana and others3, the Honourable Apex Court, while referring to its earlier decisions in Mallada K Sri Ram Vs. State of Telangana4 and Banka Sneha Sheela Vs. State of Telangana5, held as follows:
"15. ... The powers to be exercised under the Preventive Detention Law are exceptional powers which have been given to the Government for its exercise in an exceptional situation as it strikes hard on the freedom and liberty of an individual, and thus cannot be exercised in a routine manner. The distinction between law and order situation and a public order situation has been dealt with by the Supreme Court in a catena of decisions.
16. xxx
17. In any case, the State is not without a remedy, as in case the detenu is much a menace to the society as is being alleged, then the prosecution should seek for the cancellation of his bail and/or move an appeal for the Higher Court. But definitely seeking shelter under the preventive detention law is not the proper remedy under the facts and circumstances of the case."
10. In the present case, the detaining authority, basing on four crimes indicated above, has passed the impugned detention order, dated 03.03.2022. We shall present them in a tabular form the date of occurrence, the date of registration of FIRs, the offences 3 Judgment dated 22.06.2022 passed in Crl.A.No.908 of 2022 by Hon'ble Supreme Court of India. 4 2022 SCC Online SC 424 5 (2021) 2 Supreme Court Cases 415 7 Dr.SA,J & NTR,J W.P.No.14952 of 2022 complained of and their nature, such as bailable/non-bailable or cognizable/non-cognizable.
Date of Date of C.O.R.No. registration Offences Nature Occurrence of FIR
1. Cognizable/
1.Section 7(A) r/w Bailable 8(e) of Prohibition Act
2. Section 34(e) of
2. Cognizable/ 102/2021 of Excise Act Non-bailable P&E Station, 03.04.2021 03.04.2021 Narsampet Qty:
1) 5 ltrs. ID Liquor
2) 240 Kgs. Jaggery
3) 2 Kgs. Alum
1. Section 34(e) of Excise Act 148/2021 of Cognizable/ P&E Station, 22.06.2021 22.06.2021 Qty: Non-bailable Narsampet
1) 200 Kgs. Jaggery
2) 50 Kgs. Alum Section 34(e) of 269/2021 of Excise Act Cognizable/ P&E Station, 05.11.2021 28.11.2021 Qty: Non-bailable Narsampet 1) 980 Kgs. Jaggery
2) 5 Kgs. Alum
1.Section 7(A) r/w 277/2021 of 8(e) of Prohibition Act Cognizable/ P & E Station, 13.12.2021 13.12.2021 Qty: Bailable Narsampet
1) 7 ltrs. ID Liquor
11. As seen from the material placed on record, the accusation against the detenu in the aforesaid four crimes is that he is involved in the activities of possession, purchase, transport and sale/distribution of illicitly distilled liquor, jaggery and alum in contravention of the provisions under the Prohibition Act and the 8 Dr.SA,J & NTR,J W.P.No.14952 of 2022 Excise Act. He is also abetting commission of the said illegal activities. In Crime Nos.102, 148 and 269 of 2021, notices under Section 41A Cr.P.C. were issued to the detenu. In Crime No.277 of 2021, the detenu was arrested on 02.03.2022. Immediately, on the very next day i.e., on 03.03.2022, the impugned detention order was passed on the apprehension that the detenu may be enlarged on bail at any moment and his illegal and reprehensible acts and activities would be continued at the cost of public health and order, if he is not retained. To curb the illegal activities of the detenu, the State ought to have resorted to the procedure laid down under Cr.P.C. Moreover, the detenu is in judicial custody as on the date of passing of the impugned detention order. Under these circumstances, the subjective satisfaction recorded by the detaining authority is misconceived. It is brought to the notice of this Court that subsequent to passing of the impugned detention order, the detenu was granted bail in Crime No.277 of 2021 vide order, dated 07.03.2022, passed in Crl.M.P.No.23 of 2022 by the Judicial Magistrate of First Class, Narsampet. Moreover, criminal law was already set into motion against the detenu. Since the detenu has committed the offences punishable under the Prohibition Act and the Excise Act, the said crimes can be 9 Dr.SA,J & NTR,J W.P.No.14952 of 2022 effectively dealt with under the provisions of the said special laws.
The subject cases do not fall within the ambit of the words "public order" or "disturbance of public order". Instead, they fall within the scope of the words "law and order". Hence, there was no need for the detaining authority to pass the impugned detention order. The detaining authority cannot be permitted to subvert, supplant or substitute the punitive law of land, by ready resort to preventive detention.
12. For the foregoing reasons, the impugned orders are legally unsustainable and are liable to be set aside.
13. In the result, the Writ Petition is allowed. The impugned detention order vide Rc.No.C2/523/2022, dated 03.03.2022, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.1076, General Administration (Spl. (Law & Order)) Department, dated 21.05.2022, passed by the Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana, are hereby set aside. The respondents are directed to set the detenu, namely Dharavath Veerabhadru @ Veerabhadram, S/o. Chandru, at liberty forthwith, if he is no longer required in any other criminal case.
10 Dr.SA,J & NTR,J W.P.No.14952 of 2022 The Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed. There shall be no order as to costs.
________________________ Dr. SHAMEEM AKTHER, J _______________________ N.TUKARAMJI, J Date: 11.07.2022 MD