Telangana High Court
Zareena Begum vs The State Of Telangana on 6 July, 2022
Bench: Shameem Akther, N.Tukaramji
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE N.TUKARAMJI
WRIT PETITION No.23883 OF 2022
ORDER:(Per Hon'ble Dr.SA,J) Smt.Zareena Begum, W/o Shaik Farooq, has filed this Habeas Corpus petition on behalf of her cousin, Syed Abubaker @ Abbu, S/o Syed Yousuf, challenging the detention order vide No.06/PD CELL/CCRB/RCKD/2022, dated 22.01.2022, passed by the respondent No.2, whereby, the detenu was detained under Section 3(2) of the Telangana Preventive Detention Act, 1986 (Act 1 of 1986), and the consequential confirmation order, vide G.O.Rt.No.864, General Administration (Spl. (Law & Order)) Department, dated 18.04.2022, passed by the Chief 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.23883 of 2022
3. The case of the petitioner is that basing on a solitary crime registered against the detenu viz., Crime No.410 of 2021 of Balapur Police Station, Rachakonda Commissionerate, registered for the offences under Sections 366A, 376 r/w 114, 370, 370(A)(i) of IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012, (for short, 'POCSO Act') and Sections 3, 4 and 5 of Immoral Traffic (Prevention) Act, 1956 (for short 'PITA'), the respondent No.2 passed the impugned detention order, dated 22.01.2022. According to the respondent No.2, the detenu is an 'Immoral Traffic Offender' and he along with his associates has been indulging in human trafficking for the sake of prostitution and running organized prostitution business with girls/women for their pecuniary benefits in the limits of Balapur Police Station of Rachakonda Commissionerate. The detenu induced, exploited innocent girl hailed from Bihar State on the pretext of providing job to her and later lured her into prostitution business and has been running brothel house by keeping the said girl for the past six months in a rental portion. The detenu has been procuring male customers through known contacts and allowing them for sexual pleasures in his house on huge payments. Thus, he 3 Dr.SA,J & NTR,J W.P.No.23883 of 2022 has been engaging himself in unlawful acts and indulging in the acts of organizing prostitution clandestinely by acting as a leader/member of criminal gang to make quick money in short period and living on the earnings of prostitution and thereby his activities are prejudicial to the maintenance of public order and health as well in the society. Subsequently, the impugned detention order was confirmed by the Government, vide G.O.Rt.No.864, dated 18.04.2022.
4. Learned counsel for the petitioner would submit that the impugned detention order has been passed in a mechanical manner and without application of mind. The detaining authority relied on a solitary case for preventively detaining the detenu. Admittedly, in the solitary case relied upon by the detaining authority, the detenu was granted statutory bail by the Court concerned. But, the detenu was again sent to judicial remand by invoking the draconian preventive detention laws on the apprehension that there is imminent possibility of the detenu indulging in similar prejudicial activities again, which is unjustified. The alleged crime does not add up to "disturbing the public order" and it is confined within the ambit and scope of the word "law and order".
4 Dr.SA,J & NTR,J W.P.No.23883 of 2022 Since the offences alleged are under the Indian Penal Code, POCSO Act and PITA, the said case can certainly be dealt with under the Penal Code and the said special laws. Thus, there was no need for the detaining authority to invoke the draconian preventive detention laws. Hence, the impugned order tantamount to the colourable exercise of power. Thus, the impugned orders are legally unsustainable and ultimately prayed to set aside the same and allow the writ petition as prayed for.
5. On the other hand, the learned Assistant Government Pleader for Home appearing for the respondents supported the impugned orders and submitted that the detenu is an "Immoral Traffic Offender" and he along with his associates has been indulging in human trafficking for the sake of prostitution and running organized prostitution business with girls/women to make quick money in short period and living on the earnings of prostitution and thereby acting in a manner prejudicial to the maintenance of public order. Since the detenu got statutory bail in the solitary crime relied upon by the detaining authority, the apprehension of the detaining authority that there is imminent possibility of his indulging in 5 Dr.SA,J & NTR,J W.P.No.23883 of 2022 similar offences, is not misconceived. The criminal activities of the detenu not only endanger the family system but also create social unrest causing widespread health hazards to the general public. Therefore, the detaining authority and the Government are legally justified in passing the impugned orders.
6. In view of the submissions made by both the sides, the point that arises for determination in this Writ Petition is:
"Whether the impugned detention order, vide No.06/PD CELL/CCRB/RCKD/2022, dated 22.01.2022, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.864, General Administration (Spl. (Law & Order)) Department, dated 18.04.2022, passed by the Chief Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana are liable to be set aside?"
POINT:
7. In catena of cases, the Hon'ble Supreme Court had clearly opined that there is a vast difference between "law and order" and "public order". The offences which are committed against a particular individual fall within the ambit of "law and order". It is only when the public at large is adversely affected by the criminal activities of a person, the conduct of a 6 Dr.SA,J & NTR,J W.P.No.23883 of 2022 person is said to disturb the public order. Moreover, individual cases can be dealt with by the criminal justice system. Therefore, there is no need for the detaining authority to invoke the draconian preventive detention laws against an individual. Hence, according to the Apex Court, the detaining authority should be wary of invoking the immense power under the Act.
8. 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.
9. In Kanu Biswas v. State of West Bengal2, the Hon'ble Supreme 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 1 AIR 1966 SC 740 2 (1972) 3 SCC 831 7 Dr.SA,J & NTR,J W.P.No.23883 of 2022 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.
10. In the present case, the detaining authority, basing on a solitary crime indicated above, has passed the impugned detention order. We shall present it in a tabular form 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.
Date of
Crime Date of registration Offences Nature
No. Occurrence
of FIR
Sections
366-A, 376
Sections 366-A,
r/w 114,
376 r/w 114, 370, 370,
370(A)(i) of IPC 370(A)(i) of
and Section 8 of IPC and
Cr.No.410/ Section 8 of
POCSO Act and
09.10.2021 09.10.2021 POCSO Act:
2021 of Sections 3, 4 and Cognizable/
Balapur PS 5 of Immoral Non-bailable
Traffic
Sections 3,
(Prevention) Act,
4 & 5 of
1956 PITA:
Cognizable
11. As seen from the material placed on record, the solitary crime relied upon by the detaining authority for preventively detaining the detenu relates to procuration of minor girl, trafficking, rape and exploitation. In the solitary crime relied on by the detaining authority, the detenu was granted 8 Dr.SA,J & NTR,J W.P.No.23883 of 2022 statutory bail under Section 167(2) Cr.P.C. It appears that the investigating officer had not completed investigation within a period of ninety days. Therefore, the detenu was granted statutory bail under Section 167(2) Cr.P.C. It is a grave omission on the part of the investigating officer in not completing investigation within a period of ninety days. The very purpose of enacting the provision under Section 167(2) Cr.P.C. is to expedite the investigation, so that the valuable material evidence is not lost and can be collected and produced before the Court. For the laches on the part of the investigating officer, it is not appropriate to invoke the draconian preventive detention law against the detenu. The relief granted to the detenu under Section 167(2) Cr.P.C. cannot be scuttled by invoking the preventive detention law. Therefore, the apprehension of the detaining authority that there is imminent possibility of the detenu committing similar offences, which would be detrimental to public order, unless he is prevented from doing so by an appropriate order of detention, is highly misplaced. Moreover, criminal law was already set into motion against the detenu. Since the detenu has committed offences punishable under the Indian Penal 9 Dr.SA,J & NTR,J W.P.No.23883 of 2022 Code, POCSO Act and PITA, the said crime can be effectively dealt with under the provisions of the Penal Code and the said special laws. The solitary crime 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". There was no need for the detaining authority to invoke the draconian preventive detention law. The detaining authority cannot be permitted to subvert, supplant or substitute the punitive law of land, by ready resort to preventive detention.
12. For the foregoing reasons, the impugned orders are legally unsustainable and are liable to be set aside.
13. In the result, the Writ Petition is allowed. The impugned detention order vide No.06/PD CELL/CCRB/RCKD/2022, dated 22.01.2022, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.864, General Administration (Spl. (Law & Order)) Department, dated 18.04.2022, passed by the Chief Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana, are hereby set aside. The respondents are directed to set the detenu, 10 Dr.SA,J & NTR,J W.P.No.23883 of 2022 namely, Syed Abubaker @ Abbu, S/o Syed Yousuf, at liberty forthwith, if he is no longer required in any other criminal case.
The miscellaneous petitions pending in this writ petition, if any, shall stand closed. There shall be no order as to costs.
______________________ Dr. SHAMEEM AKTHER, J ________________ N.TUKARAMJI, J Date: 06.07.2022 ssp