Telangana High Court
Noorjahan vs The Jail Superintendent And 2 Others on 3 November, 2020
Author: B. Vijaysen Reddy
Bench: Raghvendra Singh Chauhan, B.Vijaysen Reddy
HIGH COURT FOR THE STATE OF TELANGANA
THE HON'BLE THE CHIEF JUSTICE RAGHVENDRA SINGH CHAUHAN
AND
THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
WRIT PETITION No.14265 of 2020
Date: 03.11.2020
BETWEEN
Noorjahan.
... PETITIONER
AND
The Jail Superintendent, Cherlapally Central Prison,
and others.
...RESPONDENTS
Counsel for the petitioner : Mr. K. Praveen Kumar
Counsel for the respondents : Mr. T. Srikanth Reddy
GP for Home
The Court made the following:
2
ORDER:(Per Hon'ble Sri Justice B. Vijaysen Reddy) The order of detention of Mohammed Nasaroddin @ Nasar, S/o. Naseeruddin, dated 22.11.2019, passed by the Commissioner of Police, Cyberabad Commissionerate; as approved by the Government vide G.O.Rt.No.3141 dated 29.11.2019 and as confirmed by the State vide G.O.Rt.No.191 dated 23.01.2020, are challenged in this writ of Habeas Corpus as illegal and unconstitutional. The detention order was passed treating him as 'Goonda' under Section 2(g) of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertilizer 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 (Amendment Act No.1 of 1986) (for short 'the Act').
2. Heard Mr. K. Praveen Kumar, the learned counsel for the petitioner and Mr. T. Srikanth Reddy, the learned Government Pleader for Home appearing for the respondents.
3. The learned counsel for the petitioner submits that the crimes referred to in the grounds of detention pertain to law and order affecting specific individuals only and not public at large. The preventive detention law cannot be invoked in every case as a matter of course as an alternative method to the punitive law. The procedure established under law has to be strictly followed before depriving liberty of an individual. The detention order is passed mechanically without looking into the facts of the case that ordinary law was set in motion to deal with the activities of the detenu and the 3 satisfaction of the detaining authority that normal law may not be an effective deterrent is unfounded, unconstitutional and illegal. Further, it is contended by the learned counsel for the petitioner that the subjective satisfaction arrived at by the detaining authority that the detenu may violate the bail conditions and commit similar offences is without there being any material.
4. On the other hand, the learned Special Government Pleader, while opposing the learned counsel for the petitioner, asserted that four thefts have been committed by the detenu in the same localized area under the Police Station limits of KPHB and one in Bachupally Police Station Limits of Cyberabad Commissionerate. Repeated thefts in the same locality have an impact on the people living in the locality as against incidents of isolated thefts and such repeated thefts in the same area was likely to create sensation, scare and fear of insecurity in the minds of the people of the locality. The detaining authority having satisfied that such acts have the potential of disturbing the public order, passed the detention order with a view to prevent the detenu from further indulging in such prejudicial activities, in the larger public interest. It is further submitted that the detaining authority considering the fact that the detenu has committed five offences in quick succession in an organized manner and having felt that the cases registered against him under ordinary law is no deterrent in curbing his activities, passed the detention order in larger public interest. The detenu answers the description of 'Goonda' as defined under Section 2(g) of the Act. Having considered the entire material and the fact that the offences are committed by the detenu in an organized manner in quick session, the detention order was passed.
5. As seen from the detention order, the detaining authority referred to five cases which cases are considered as ground cases for 4 detention. The four ground cases with relevant details as reflected in the detention order are shown as below:
Sl. Crime No. Police Offence Date of Particulars of Bail No. and Date Station arrest
1. Cr.No.340 KPHB PS u/s 457 07.06.2019 Detenu moved bail of 2019 and 380 petition before X Dt.25.05.19 IPC AMM, Cyberabad at Kukatpally vide CRLMP.No.5821 of 2019 and conditional bail was granted and released from jail on 05.07.2019.
2. Cr.No.369 KPHB PS u/s 457 07.06.2019 in Detenu moved bail of 2019 and 380 Cr.No.340 of petition before X Dt.05.06.19 IPC 2019 AMM, Cyberabad at Kukatpally vide CRLMP.No.5823 of 2019 and conditional bail was granted and released from jail on 05.07.2019.
3. Cr.No.377 KPHB PS u/s 457 07.06.2019 in Detenu moved bail of 2019 and 380 Cr.No.340 of petition before X Dt.06.06.19 IPC 2019 AMM, Cyberabad at Kukatpally vide CRLMP.No.5824 of 2019 and conditional bail was granted and released from jail on 05.07.2019.
4. Cr.No.370 KPHB PS u/s 457 07.06.2019 in Detenu moved bail of 2019 and 380 Cr.No.340 of petition before X Dt.05.06.19 IPC 2019 AMM, Cyberabad at Kukatpally vide CRLMP.No.5822 of 2019 and conditional bail was granted and released from jail on 05.07.2019.
5. Cr.No.53 of Bachupally u/s 457 07.06.2019 in Detenu moved bail 2019 PS and 380 Cr.No.340 of petition before X Dt.02.02.19 IPC 2019 AMM, Cyberabad at Kukatpally vide CRLMP.No.5825 of 2019 and conditional bail was granted and released from jail on 05.07.2019.
6. The detenu was arrested in Cr.No.340 of 2019 on 07.06.2019 and remanded to judicial custody and subsequently, under PT warrants the detenu was arrested in other crimes. The detention order shows that the detenu was granted bail in all the crimes and he was released 5 from jail in all the cases. The detaining authority points out that there is apprehension of the detenu violating bail conditions and committing similar offences, unless the detenu is prevented from doing so by an appropriate order of detention.
7. There is no material, in the detention order, referred to by the detaining authority to arrive at a conclusion that there is possibility of the detenu violating the bail conditions. Mere possibility of violating bail conditions cannot be a ground to pass the order of detention and one cannot assume that the conditions imposed by a competent Court granting bail would be violated in a causal manner. Cr.P.C. is a self-contained Code and it takes care of the situation where the prosecution can always approach the concerned Court for cancellation of bail in the event the conditions of bail are violated. One of the essential requirements for passing an order of detention is that ordinary criminal law is not deterrent upon the detenu and thus, preventive detention law needs to be invoked. If the detenu can be dealt with under ordinary criminal law, there is no need to pass an order of detention under the Act. To arrive at a conclusion that ordinary criminal law is not capable of dealing with the detenu, there should be a strong case based on sufficient material before the detaining authority. Mere apprehensions and assumptions would not suffice and by any stretch of imagination, they cannot be the basis for passing the order of detention.
8. The State, without effectively opposing the bail applications or seeking cancellation of the bail on the ground of violation of bail conditions, cannot be permitted to bypass the ordinary law and resort to provisions of preventive detention laws. It is only when normal law does not take care of the situation resort has to be taken under preventive detention laws. To be precise, it needs to be pointed out 6 that the State cannot take advantage of its own lapses, whereby on one hand, the State does not effectively oppose the bail application or seeking cancellation of bail and on the other hand, State finds an easy method to pass detention order by invoking preventive detention laws.
9. In SUDHIR KUMAR SAHA v. THE COMMISSIONER OF POLICE, CALCUTTA1 it was held in para 7 as under:
"7. The freedom of the individual is of utmost importance in any civilized society. It is a human right. Under our Constitution, it is a guaranteed right. It can be deprived of only by due process of law. The power to detain is an exceptional power to be used under exceptional circumstances. It is wrong to consider the same, as the executive appears to have done in the present case, that it is a convenient substitute for the ordinary process of law. The detention of the petitioner under the circumstances of this case appears to be a gross misuse of the power conferred under the Preventive Detention Act."
The High Court of Judicature for the State of Telangana and the State of Andhra Pradesh in C. NEELA v. STATE OF TELANGNA2 held as under:
"...Preventive detention of a person is an extreme measure resorted to by the State when ordinary criminal law is found not adequate to control his activities which cause disturbance to public order. Article 21 of the Constitution of India ordains that no citizen shall be deprived of his life or personal liberty except according to the procedure established by law. Under ordinary criminal laws, several safeguards are available to him such as, his arrest only in connection with cognizable/non-bailable offences and permitting him to apply for bail etc. The preventive detention laws have been conceived in order to control the activities of a person which tend to disturb public order as opposed to law and order and the procedural safeguards prescribed by the ordinary criminal laws are not available to the detenu under preventive detention laws."1
1970 (1) SCC 149 2 2017 (2) ALD (Crl.) 760 7 3 In SHASHI AGARWAL v. STATE OF UP it was held as under:
"Every citizen in this country has the right to have recourse to law. He has the right to move the court for bail when he is arrested under the ordinary law of the land. If the State thinks that he does not deserve bail the State could oppose the grant of bail. He cannot, however, be interdicted from moving the court for bail by clamping an order of detention. The possibility of the court granting bail may not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reasons apparent on the record that the detenu, if enlarged on bail, would act prejudicially to the interest of public order."
10. Apart from that, there is also no proper conclusion arrived at by the detaining authority as to how public order is affected. There is a difference between law and order and public order. The offences i.e. house burglaries/thefts, allegedly, committed by the detenu are under IPC and thus, do not involve any public order as such. It is held by the Supreme Court in ARUN GHOSH v. STATE OF WEST BENGAL4 as under:
"It means therefore 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 the extent of the reach of the act upon the society. The French distinguish law and order and public order by designating the latter as order publique. The latter expression has been recognized as meaning something more than ordinary maintenance of law and order.
In S.K. KEDAR v. STATE OF WEST BENGAL5, the Supreme Court held as under:
The relevant criteria to distinguish in the abstract between acts prejudicial to maintenance of law and order and those which 3 (1998) 1 SCC 436 4 1970(1) SCC 98 5 (1972) 3 SCC 816 8 are prejudicial to maintenance of public order are laid down in a number of rulings of this Court (see Pushkar Mukherjee and others v. The State of West Bengal [(1969) 1 SCC 10], Sudhir Kumar Saha V. Commisssioner Of Police, Calcutta [(1970) 1 SCC 149] and Nagendra Nath Mondal v.
The State of West Bengal [(1972) 1 SCC 498]. The question whether a person 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 one of degree and the extent of the reach of the act upon the society. An act by itself is not determinative of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Similar acts in different contexts affect differently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its effect upon the community. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of the law and order.
11. In view of the above, the impugned detention order is liable to be set aside and accordingly set aside.
In the result, the writ petition is allowed. The impugned detention order dated 22.11.2019, passed by respondent No.3, and the confirmation order dated 23.01.2020, passed by respondent No.2 are set aside. The respondents are directed to set the detenu, namely Mr. Mohammed Nasaroddin @ Nasar, S/o. Naseeruddin, at liberty forthwith, if he is no longer detained in judicial custody in the criminal cases, which have been so far registered against him.
As a sequel, the miscellaneous petitions, pending if any, shall stand closed. There shall be no order as to costs.
____________________________ RAGHVENDRA SINGH CHAUHAN, CJ __________________ B. VIJAYSEN REDDY, J November 3, 2020/DSK