Telangana High Court
Jarpula Kavitha vs The State Of Telangana And Another on 12 April, 2021
Author: Shameem Akther
Bench: A.Rajasheker Reddy, Shameem Akther
THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY
AND
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
WRIT PETITION No.198 OF 2021
ORDER:(Per the Hon'ble Dr. Justice Shameem Akther) Smt. Jarpula Kavitha, the petitioner, has filed this Habeas Corpus petition on behalf of her husband, Jarpula Hathi Ram S/o. Mangya, the detenu, challenging the detention order, dated 15.10.2020, passed by the respondent No.2-Collector and District Magistrate, Warangal Rural District, wherein, the detenu was detained under Section 3(1) & (2) read with Section 2(a) & (b) 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 & White Collar or Financial Offenders Act, 1986 (for short, "P.D. Act") and the consequential confirmation order, dated 19.12.2020, vide G.O.Rt.No.1988, General Administration (Spl. (Law & Order)) Department, passed by the respondent No.1-Principal Secretary to Government (POLL), General Administration (Spl. (Law & Order)) Department, Government of Telangana.
2. Heard the submissions of Sri P.Prabhakar Reddy, learned counsel for the petitioner, Sri G.Mallareddy, learned Assistant 2 ARR,J & Dr.SA,J W.P.No.198 of 2021 Government Pleader for Home representing the learned Additional Advocate General for the respondents and perused the record.
3. Briefly, the facts of the case are that by relying on three criminal cases registered against the detenu in C.O.R.Nos.170 and 191 of 2020 of Prohibition & Excise Station, Narsampet and C.O.R.No.331 of 2020 of Prohibition & Excise Station, Wardhannapet, the respondent No.2, passed the impugned detention order, dated 15.10.2020. According to the respondent No.2, the detenu is a 'bootlegger' as he has been repeatedly indulging in clandestine business of possession, purchase, transportation and sale/distribution of I.D liquor, jaggery and alum, in contravention of Section 34(e) of Andhra Pradesh Excise Act, 1968 and Section 7(A) r/w 8(e) of Andhra Pradesh Prohibition Act, 1995 and thereby causing widespread danger to public order, health and tranquility in the localities named Narsampet and Wardhannapet and its surroundings Mandals. Hence, this Writ Petition before this Court.
4. Sri P. Prabhakar Reddy, learned counsel for the petitioner, has raised the following contentions before this Court:
Firstly, that relying only on three cases registered against the detenu in the year 2020, the impugned detention order is passed.
Secondly, the alleged cases do not add up to "disturbing the public order". They are confined within the ambit and scope of the word "law and order". Since the offences alleged are under the special law, the detenu can certainly be tried and convicted under 3 ARR,J & Dr.SA,J W.P.No.198 of 2021 the special law. Thus, there was no need for the detaining authority to invoke the draconian preventive detention laws.
Hence, the impugned detention order tantamounts to colourable exercise of power.
Thirdly, it is contended that in C.O.R.No.191 of 2020, the black jaggery, alum and I.D liquor were seized from the possession of A1 and A2 and on their confession, the detenu was arrayed as A3. In C.O.R.No.331 of 2020, black jaggery was seized from the vehicle, but not at the instance of the detenu. There is no evidence on record to show that the said vehicle belongs to the detenu or the detenu was driving the said vehicle.
Lastly, it is contended that the order of detention dated 15.10.2020 and grounds of detention were served on the detenu while he was in jail on 15.10.2020 and the confirmation order, dated 19.12.2020, was also served on the detenu while he was in jail on 26.12.2020. Thus, the impugned detention order and the confirmation order are legally unsustainable. The learned counsel, in support of his submissions, relied upon the decisions reported in Rekha vs. State of Tamil Nadu1 and Munagala Yadamma vs. State of Andhra Pradesh and others2 and ultimately, prayed to allow the Writ Petition as prayed for.
5. On the other hand, Sri G.Mallareddy, the learned Assistant Government Pleader for Home, representing the learned Additional Advocate General, for the respondents, would submit that in C.O.R. 1 (2011) 5 SCC 244 2 (2012) 2 SCC 386 4 ARR,J & Dr.SA,J W.P.No.198 of 2021 No.170 of 2020, the Excise officials seized 20 Litres of I.D. Liquor from the detenu and three others in front of the house of the detenu under a cover of panchanama. In C.O.R.No.191 of 2020, the detenu was arrayed as A3 on the confession made by A1 and A2. In C.O.R.No.331 of 2020, on 29.09.2020, the detenu was caught while he was illegally transporting 300 Kgs. of jaggery in Bajaj Auto, without registration number and the excise officials seized the jaggery and said vehicle under a cover of panchanama, but in the meanwhile, the detenu escaped from the scene of offence and subsequently, he was taken into custody on 30.09.2020. In all the three crimes, the detenu was not arrested and only notices under Section 41A Cr.P.C. were served on him. Since the detenu is repeatedly indulging in clandestine business of possession, transportation and sale of I.D. Liquor and the raw material used for manufacturing I.D. Liquor, the impugned detention order, dated 15.10.2020, was passed by the detaining authority. Subsequently, the impugned detention order was confirmed by the respondent No.1 vide G.O.Rt.No.1988, General Administration (Spl. (Law & order)) Department, dated 19.12.2020. As such there is no basis for the allegations that the detenu is not involved in any offence. The series of crimes allegedly committed by him were sufficient to cause a feeling of fear and insecurity among the people and widespread danger to public health. Therefore, the detaining authority was legally justified in passing the impugned detention order and ultimately, prayed to dismiss the Writ Petition.
5 ARR,J & Dr.SA,J W.P.No.198 of 2021
6. In view of the submissions made by both the sides, the point that arises for determination in this Writ Petition is:
"Whether the detention order, dated 15.10.2020, passed by the respondent No.2 and the confirmation order, dated 19.12.2020, passed by the respondent No.1, are liable to be set aside?"
POINT:
7. In catena of cases, the Hon'ble Supreme Court had clearly opined that there is a vast difference between "law and order" and "public order". The offences which are committed against a particular individual fall within the ambit of "law and order". It is only when the public at large is adversely affected by the criminal activities of a person, then such conduct of that person is said to disturb the public order. Moreover, individual cases can be dealt with by the criminal justice system. Therefore, there is no need for the detaining authority to invoke the draconian preventive detention laws against an individual. For the invoking of such law adversely affects the fundamental right of personal liberty, which is protected and promoted by Article 21 of the Constitution of India. Hence, according to the Hon'ble Apex Court, the detaining authority should be wary of invoking the immense power under the Act.
8. In the case of Ram Manohar Lohia v. State of Bihar3, 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:
3
AIR 1966 SC 740 6 ARR,J & Dr.SA,J W.P.No.198 of 2021 "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. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder.
They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances."
9. In the case of Kanu Biswas v. State of West Bengal4, the Hon'ble Supreme Court has opined as under:
4
(1972) 3 SCC 831 7 ARR,J & Dr.SA,J W.P.No.198 of 2021 "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?"
10. In Rekha's case (1 supra), relied upon by the learned counsel for the petitioner, the Hon'ble Apex Court held as follows:
"23. In this connection, 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.
27. In our opinion, there is a real possibility of release of a person on bail who is already in custody, provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence, the detention order will be 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...."
8 ARR,J & Dr.SA,J W.P.No.198 of 2021
11. In Munagala Yadamma's case (2 supra) relied upon by the learned counsel for petitioner, the Hon'ble Apex Court held as follows:
"Para 11: 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 the Crl.A.67/12 ordinary law and absolve the investigating authorities of their normal functions of investigating crimes which the detenue 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 (emphasis supplied). Accordingly, while following the three- Judge Bench decision in Rekha's case (supra), we allow the appeal and set aside the order passed by the High Court dated 20th July, 2011, and also quash the Detention Order dated 15th February, 2011, issue by the Collector and District Magistrate, Ranga Reddy District, Andhra Pradesh."
12. In the present case, the detenu is allegedly involved in three criminal cases vide C.O.R.Nos.170, 191 and 331 of 2020. We shall present them in a tabular form the date of occurrence, the date of registration of FIRs, the offences complained of and their nature, such as bailable/non-bailable or cognizable/non-cognizable.
9 ARR,J & Dr.SA,J
W.P.No.198 of 2021
Date of
Date of registratio
S.No COR No. Occurrence n Offences Nature
of FIR
Section 7(A) read
with 8(e) of APP
170/2020 of
Act, 1995 Cognizable/
1. P&E Station, 25.04.2020 25.04.2020
Bailable
Narsampet
(Qty: 20 Lts. I.D.
Liquor)
1. Section 7(A) Cognizable/
read with 8(e) of Bailable
APP Act, 1995
2. Section 34(e)
191/2020 of
of A.P. Excise
2. P&E Station, 01.05.2020 01.05.2020
Act, 1968 Cognizable/
Narsampet
(Qty: 3400 Kgs. Non-bailable
Alum, 110 Kgs.
Jaggery & 10
Lts. I.D. Liquor)
Section 34(e) of
A.P. Excise Act,
331/2020 of Cognizable/
1968
3. P&E Station, 29.09.2020 29.09.2020 Non-bailable
Wardhannapet
(Qty: 300 Kgs.
Jaggery)
13. It is the contention of the learned counsel for the petitioner that in C.O.R.Nos.191 and 331 of 2020, the black jaggery, alum and I.D liquor were not seized from the possession of detenu. In C.O.R.No.191 of 2020, the detenu was arrayed as A3 on the confession made by A1 and A2. Furthermore, the order of detention, dated 15.10.2020, and grounds of detention were served on the detenu while he was in jail on 15.10.2020 and the confirmation order, dated 19.12.2020, was also served on the detenu in jail on 26.12.2020. Whereas, in the counter filed by respondent No.2, it is stated that in C.O.R. No.170 of 2020, the Excise officials seized 20 Litres of I.D. Liquor from the detenu and three others in front of the house of the detenu under a cover of panchanama. In C.O.R.No.191 of 2020, the detenu was arrayed as 10 ARR,J & Dr.SA,J W.P.No.198 of 2021 A3 on the confession made by A1 and A2. In C.O.R.No.331 of 2020, 300 Kgs. of jaggery was seized from a Bajaj Auto under a cover of panchanama and the detenu absconded from the scene of offence. It is also stated that in all the above crimes, the detenu was not arrested and only notices under Section 41A Cr.P.C. were served on him.
14. As seen from the material placed on record, in the grounds of detention, dated 15.10.2020, it is mentioned that in the first crime, the contraband was seized from the detenu, in the second crime, the detenu was arrayed as A3 on the confession made by A1 and A2 and in the third crime, the contraband was seized from the Bajaj Auto. It is also stated that the detenu was said to have been absconding from the scene of offence in the third crime and thereafter, notice under Section 41A Cr.P.C was issued to him. Furthermore, in the pleadings, it is stated by the petitioner that the order of detention, dated 15.10.2020, and grounds of detention were served on the detenu in jail on 15.10.2020 and the confirmation order, dated 19.12.2020, was also served on the detenu in jail on 26.12.2020. Whereas in the counter filed by the respondent No.2, it was stated that in all the three cases, the detenu was not arrested, only notices under Sections 41A Cr.P.C were issued to him. In view of the same, there are inconsistencies in the written submissions as well as oral submissions made by both sides. Be that as it may, we are only concerned with the point, whether the illegal activity of the detenu amounts to disturbance of public order or not. It is to be noted that with 11 ARR,J & Dr.SA,J W.P.No.198 of 2021 regard to the offences allegedly committed by the detenu, normal criminal law was already invoked against him and as per the averments in the counter, notices under Section 41A Cr.P.C. were issued to the detenu. If the detenu violates any of the conditions imposed in the said notices, it is for the police concerned to arrest the detenu by recording the reasons in writing. It is pertinent to state that in all the three cases relied by the detaining authority, the detenu was issued notices under Section 41A of Cr.P.C. and was not arrested and remanded to judicial custody to prevent further commission of similar offences. Under these circumstances, the apprehension of the detaining authority that there is imminent possibility of the detenu committing similar offence, which is detrimental to the public order, unless he is prevented from doing so by an appropriate order of detention, is highly misplaced. Moreover, in the cases relied on by the detaining authority, the detenu alleged to have committed offences punishable under the special law. So, it can be safely concluded that the said crimes can be dealt with under the provisions of the special law. The detaining authority cannot be permitted to invoke the preventive detention laws, in order to breach the liberty of an individual.
15. Grave as the offences may be, further, they relate to possession, transportation and sale of I.D. liquor and the raw material used for manufacturing illicitly distilled liquor, as indicated in the detention order. Moreover, when the apprehending officer did not arrest and remand the detenu to judicial custody and felt that issuance of notice under Section 41A Cr.P.C would be suffice, 12 ARR,J & Dr.SA,J W.P.No.198 of 2021 no inference of disturbance of public order can be drawn against the detenu. These cases can be tried under the normal criminal law. And, if convicted, can certainly be punished by the Court of law. Thus, these cases do not fall within the ambit of the words "public order". Instead, they fall within the scope of the words "law and order". Hence, there was no need for the detaining authority to pass the impugned detention order. Therefore, for the reasons stated above, the impugned orders are legally unsustainable.
16. In the result, the Writ Petition is allowed. The impugned detention order vide Rc.No.149/2020/P&E/A1, dated 15.10.2020, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.1988, General Administration (Spl. (Law & Order)) Department, dated 19.12.2020, passed by respondent No.1, are hereby set aside. The respondents are directed to set the detenu, namely Jarpula Hathi Ram, S/o. Mangya, at liberty forthwith, if he is no longer required in any other criminal case.
As a sequel, the miscellaneous petitions, pending if any, shall stand closed. There shall be no order as to costs.
_______________________ A. RAJASHEKER REDDY, J ______________________ Dr. SHAMEEM AKTHER, J April 12th, 2021.
MD