Telangana High Court
Ameena Begum vs The State Of Telangana on 28 June, 2023
Author: K. Lakshman
Bench: K.Lakshman, P.Sree Sudha
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE P. SREE SUDHA
WRIT PETITION No.9000 OF 2023
ORDER:(Per Hon'ble Sri Justice K. Lakshman) Heard Mrs. B. Mohana Reddy, learned counsel for the petitioner and Mr. Mujib Kumar Sadasivuni, learned Special Government Pleader representing learned Additional Advocate General appearing on behalf of the respondents.
2. This writ petition is filed to issue a writ of Habeas Corpus directing the respondents to produce the detenu, Mr. Salman Khan S/o Hakeem Khan, now detained in Central Prison, Chanchalguda, Hyderabad, and to order for his release forthwith by declaring his detention vide SB (1) No.48/PD-3/HYD/2023, dated 24.03.2023 passed by respondent No.2 and the consequential confirmation order passed by respondent No.1 vide G.O.Rt.No.729 of General Administration (Special Law and Order) Department, dated 20.05.2023 as illegal.
3. Impugned detention order was passed relying on the following five (05) crimes, details of which, such as crime number, 2 KL,J & PSS,J W.P. No.9000 of 2023 offence alleged, nature of allegations etc. are specifically mentioned in a tabular form:
S.No Crime No. Offences 01 338 of 2022 of Humayun Sections - 354, 420, 342, 323 and Nagar Police Station 506 r/w 34 of IPC & Section 8 of the Protection of Children from Sexual Offences Act, 2012.
02 227 of 2022 of Humayun 186, 189, 353, 504 & 506 r/w 34 Nagar Police Station IPC 03 262 of 2022 of 420, 384 & 506 r/w 34 IPC Bahadurpura Police Station 04 18 of 2023 of Golconda 506, 420 & 406 r/w 34 IPC Police Station 05 35 of 2023 of Falaknuma 392 & 195A IPC Police Station
4. In the impugned detention order, there is reference to the involvement of the detenu earlier in ten (10) crimes. As the detenu was acting in any manner prejudicial to the maintenance of public order during 2021, he was preventively detained under the provisions of the Telangana Prevention of Dangerous Activities of Boot-leggers, 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 3 KL,J & PSS,J W.P. No.9000 of 2023 Offenders Act, 1986 (Act No.1 of 1986) (for short 'Act No.1 of 1986'), under the category of 'White Collar Offender' vide proceedings SB9(1) No.15/PD-3/HYD/2021, dated 04.03.2021. The said detention order was challenged by way of filing a writ petition vide W.P.No.12321 of 2021, and this Court vide order dated 16.08.2021 held that the said detention order is illegal and set aside the same.
5. In the impugned order, it is also mentioned that after the release from preventive detention, the detenu did not mend his habitual nature of committing crimes. During the years 2022-23 the detenu involved in nine (09) crimes, which includes the aforesaid five (05) crimes viz., 1) Crime No.265 of 22 of Humayun Nagar Police Station registered for the offences punishable under Sections - 153A, 186, 189, 505 (2) and 506 IPC; 2) Crime No.1566 of 22 of CCS, Hyderabad, registered for the offences punishable under Sections - 153A, 505 (2) and 506 IPC; 3) Crime No.14 of 2023 of Falaknuma Police Station registered for the offences punishable under Sections - 420, 466, 468 and 471 of IPC and 4) Crime No.36 of 2023 of Humayun Nagar Police Station registered for the offences punishable under Sections - 505 (1) (b) (c), 505(2), 504 and 506 of IPC. Among 4 KL,J & PSS,J W.P. No.9000 of 2023 the aforesaid nine (09) crimes committed by the detenu, the aforesaid five (05) crimes shown in the table have been taken into consideration and relying on the same, the impugned detention order was passed to prevent the detenu from committing similar offences, which would disturb the public order. Challenging the said detention order, the present writ petition is filed.
6. Mrs. B. Mohana Reddy, learned counsel for the petitioner contended as follows:
i) The detenu has started a Non-Governmental Organization (NGO) and he is running the same for the benefit of needy people;
ii) In all the aforesaid five (05) crimes, the disputes between the de facto complainant and the detenu are personal in nature and they are nothing to do with the disturbance to the public order;
iii) The detenu was implicated in the aforesaid crimes falsely due to political rivalry;
iv) There was no breach of maintenance to the public order and if at all and as per the allegations leveled against the 5 KL,J & PSS,J W.P. No.9000 of 2023 detenu, there was breach of maintenance of law and order;
v) In the crimes shown at serial Nos.3 to 5 of the aforesaid table, bails were granted to the detenu;
vi) The Investigating Officers have not filed any applications seeking cancellation of bail granted to the detenu on the ground of violation of any of the conditions imposed by the Court below while granting bail;
vii) On obtaining bail in Crime No.18 of 2023 on 15.03.2023, the impugned detention order was passed on 24.04.2023.
Thus, the respondent authorities have passed the detention order illegally to see by hook or crook the detenu will be in judicial custody due to political rivalry;
viii) Earlier detention order dated 04.03.2021 was set aside by this Court vide order dated 16.08.2021 in W.P.No.12321 of 2021;
ix) Though there is no bar to make fresh detention order in terms of Section 14 (2) of the Act No.1 of 1986, the detaining authority shall consider fresh facts that have arisen after the date of revocation or expiry, on which, in 6 KL,J & PSS,J W.P. No.9000 of 2023 the present case, there is no consideration of the said facts. There is violation of Section - 14 (2) of the Act No.1 of 1986;
x) On the application filed by the police, the Court below granted police custody of detenu. During his police custody, the police have tortured the detenu. Due to the said torture, he has received injuries and in proof of the same, learned counsel has filed proceedings, dated 13.03.2023, 14.03.2023 and docket order dated 06.03.2023, clarification of cause of injury of Superintendent, Osmania General Hospital, Hyderabad, dated 04.04.2023 along with memo vide USR No.41823 of 2023, dated 24.04.2023;
xi) Thus, there was no material before respondent No.2 -
detaining authority to come to a subjective satisfaction with regard to the disturbance that was caused to the public order due to the alleged acts committed by the detenu;
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KL,J & PSS,J W.P. No.9000 of 2023
xii) There was no consideration of the said aspects by respondent No.1 while confirming the detention order. Thus, the impugned order is illegal; and
xiii) She has also placed reliance on the principle laid down by the Hon'ble Supreme Court in Chhagan Bhagwan Kahar v. N.L. Kalna1; Jahangirkhan Fazalkhan Pathan v. The Police Commissioner, Ahmedabad2; Pushkar Mukherjee v. The State of West Bengal3; and Mallada K. Sri Ram v. The State of Telangana4.
7. On the other hand, learned Special Government Pleader referring to the counter affidavit filed by respondent No.2 would submit that the detenu involved in ten (10) crimes during the years 2019-20. Considering the said activities of the detenu which are prejudicial to the maintenance of public order, to prevent him from committing similar offences, considering disturbance caused by his acts to the public order, the detention order dated 04.03.2021 was issued under the category 'white collar offender'. The same was challenged by way of filing a writ petition vide W.P.No.12321 of 1 . AIR 1989 SC 1234 2 . AIR 1989 SC 1812 3 . 1969 (1) SCC 10 4 . 2022 SCC OnLine SC 424 8 KL,J & PSS,J W.P. No.9000 of 2023 2021 and the same was allowed by this Court vide order dated 16.08.2021.
i) He would further submit that even after release, the detenu continued to commit several offences and there was no change in his attitude, during the years 2022-23, in quick succession, he has committed nine (09) crimes including an offence punishable under the provisions of POCSO Act, wherein the age of the victim girl is twelve (12) years. Thus, the allegations leveled against the detenu are serious and among them one offence is heinous one. However, relying on the five crimes shown in the aforesaid table, to prevent the detenu from committing similar offences and also considering the entire material on record, the detaining authority has issued the impugned detention order. There is no irregularity in it.
ii) Learned Special Government Pleader has also placed reliance on the judgment of the Apex Court in Smt. K. Aruna Kumari v. Government of Andhra Pradesh5.
8. As discussed above, the impugned detention order was passed relying on the five (05) crimes shown in the above table. In Crime No.338 of 2022 since the offences leveled against the detenue 5 . (1988) 1 SCC 296 9 KL,J & PSS,J W.P. No.9000 of 2023 are punishable under Sections - 354, 420, 342, 323 and 506 r/w 34 IPC & Section - 8 of POCSO Act. According to learned Special Government Pleader, the Investigating Officer has almost completed the investigation and charge sheet is yet to be filed. In Crime No.227 of 2022, since punishment prescribed for the offences alleged against the detenu are seven (07) years and below seven (07) years, the Investigating Officer has already invoked the procedure under Section
- 41A of the Cr.P.C. and on completion of investigation laid the charge sheet and the same was taken on file vide C.C.No.6627 of 2022.
9. In Crime No.262 of 2022, the detenu was produced on P.T. warrant on 10.03.2023 and the Court below granted bail to him on imposition of certain conditions. The investigation is almost completed and charge sheet is to be filed. In Crime No.18 of 2023, the detenu was produced vide P.T. warrant on 01.03.2023 and the Court below granted bail to him on 14.03.2023 on imposition of certain conditions and he was released on bail on 15.03.2023. In Crime No.35 of 2023, the detenu was surrendered before the learned Magistrate concerned and he was remanded to judicial custody. Bail was granted to him on 10.03.2023. According to learned Special 10 KL,J & PSS,J W.P. No.9000 of 2023 Government Pleader, investigation is almost complete and charge sheet is to be filed.
10. Perusal of record would reveal that the Investigating Officer in the aforesaid crimes have not filed any application seeking cancellation of bail granted to the detenu on the ground that he has committed similar offences and that he has violated the conditions imposed by the concerned Court below while granting bail.
11. The detenu has started NGO i.e., "Hyderabad Youth Courage" with an objective to help needy and poor people to conduct help programmes to promote National Integration etc. But, the allegations leveled against the detenu in the aforesaid crimes are serious in nature. In Crime No.338 of 2022, one of the offences alleged against him is punishable under Section - 8 of the POCSO Act, and the age of the victim girl is twelve (12) years. He was remanded to judicial custody and he is in Central Prison, Chanchalguda, Hyderabad at present. Bail was not granted to him in the said crime.
12. In Crime No.227 of 2022, the allegation leveled against the detenu is that he has obstructed the official duties of Sub-Inspector of Police, Asifnagar Traffic Police Station, Hyderabad. In Crime No.262 11 KL,J & PSS,J W.P. No.9000 of 2023 of 2022, the allegation leveled against the detenu is that he and his associates stopped a Swiggy delivery boy forcibly and took his mobile phone and checked the balance in his bank account and forcibly took his ATM Card and also took an amount of Rs.2,000/- from his pocket. In Crime No.18 of 2023, the complainant is a dialysis patient and he met the detenu seeking financial assistance, but he called the complainant to his residence and forcibly taken the Google Pay and Phone Pay Passwords from him. In Crime No.35 of 2023, the allegation leveled against the detenu and his associates are that they have threatened the de facto complainant and his mother-in-law on the point of knife and demanded money from them to manage Court expenses. Thus, the allegations leveled against the detenu are serious in nature.
13. The earlier detention order dated 04.03.2021 was passed against the detenu and one Mr. Syed Ayub, relying on four (04) crimes. In all the said crimes, the offences alleged against the detenu are punishable under Sections - 406 and 420 read with 149 of IPC and one of the case was ended in compromise, in one case he obtained anticipatory bail and in other two crimes, he was on regular bail. 12
KL,J & PSS,J W.P. No.9000 of 2023 Considering the fact that there was no disturbance to the public order due to the acts committed by the detenu, this Court vide order dated 16.08.2021, set aside the said detention order.
14. It is relevant to note that even after release on 17.08.2021, the detenu continued in committing several offences and during the years 2022-23, he involved in the aforesaid nine (09) crimes. As stated above, in the aforesaid five (05) crimes shown in the table relied on by the detaining authority, the allegations leveled against him are serious in nature. The detenu and his associate, Syed Ayub are rowdy sheeters. They have not filed any writ petitions challenging the said sheet. Therefore, the petitioner cannot contend that the impugned detention order was passed due to political rivalry. The allegations leveled against him are serious in nature.
15. In Mallada K. Sri Ram4, the Apex Court considering the fact that only two (02) crimes were registered against the detenu and he was granted bail on imposition of certain conditions, and there was no disturbance to the public order, set aside the detention order.
16. In Chhagan Bhagwan Kahar1, the Apex Court held that even if the order of detention comes to an end either by revocation 13 KL,J & PSS,J W.P. No.9000 of 2023 or by expiry of the period of detention there must be fresh facts of passing a subsequent order. A fortiori when a detention order is quashed by the Court issuing a high prerogative writ, like habeas corpus or certiorari the grounds of the said order should not be taken into consideration either as a whole or in part even along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the Court strikes down an earlier order by issuing rule it nullifies the entire order. Considering the fact that there were no fresh facts, the Apex Court set aside the detention order. In Jahangirkhan Fazalkhan Pathan2, the Apex Court reiterated the said principle.
17. In Banka Sneha Sheela v. State of Telangana6, the Apex Court held as under:
"13. There can be no doubt that for 'public order' to be disturbed, there must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects 'law and order' but before it can be said to affect 'public order', it must affect the community or the public at large."
"24. 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 6 . (2021) 9 SCC 415 14 KL,J & PSS,J W.P. No.9000 of 2023 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."
18. In Pushkar Mukherjee3, the Apex Court held that one vague ground is enough to vitiate order and detention authority cannot pass detention order mentioning irrelevant ground.
19. In Smt. K. Aruna Kumari5, the Apex Court held that this Court cannot examine probative value of evidence available to the detaining authority.
20. As discussed supra, the detaining authority relying on the aforesaid five (05) crimes, nature of offences alleged against the detenu and the manner in which he has committed and also on consideration of entire material on record and on coming to subjective satisfaction with regard to the disturbance to the public order due to the acts committed by the detenu, passed the impugned detention 15 KL,J & PSS,J W.P. No.9000 of 2023 order dated 24.03.2023. Therefore, there is no irregularity in the said order.
21. Learned counsel for the petitioner contended that the Court below ordered police custody of the detenu and during the said period, the police have tortured him. The proceedings filed by both the learned counsel for the petitioner and learned Special Government Pleader would reveal that there was no such torture and the certificate issued by the Medical Officer would reveal the said fact.
22. According to respondent No.2, detaining authority, the detenu is a 'while collar offender'. Section - 2 (x) of the Act No.1 of 1986 defines 'White Collar Offender' or 'Financial Offender', which means a person who commits or abets the commission of offences punishable under the Telangana Protection of Depositors of Financial Establishment Act, 1999 or under sections 406 to 409 or 417 to 420 or under Chapter XVIII of the Indian Penal Code, 1860. In all the aforesaid five (05) crimes, the offences alleged against the detenu would fall in the aforesaid Category.
23. As discussed above, in the present case, the detaining authority has relied upon the aforesaid five (05) crimes. The detaining 16 KL,J & PSS,J W.P. No.9000 of 2023 authority did not rely on the four (04) crimes relying on which earlier detention order dated 04.03.2021 was issued against the detenu. During the years 2022-23, the detenu involved in nine (09) crimes including the aforesaid five (05) crimes relied upon by the detaining authority. Thus, there was no reliance on the earlier crimes by the detaining authority while issuing the impugned detention order and it was issued considering the fresh facts and crimes which were committed by the detenu after release from the jail on 17.08.2021. Therefore, the contention of learned counsel for the petitioner that the detaining authority has passed the impugned order relying upon the irrelevant ground and on earlier crimes and that there were no consideration of fresh facts is unsustainable.
24. Viewed from any angle, the petitioner failed to make out any ground to interfere with the impugned order of detention, dated 24.03.2023 issued by respondent No.2 and confirmed by respondent No.1 vide G.O.Rs.No729, dated 20.05.2023 and, therefore, the writ petition fails and liable to be dismissed.
25. The present writ petition is accordingly dismissed. In the circumstances of the cases, there shall be no order as to costs. 17
KL,J & PSS,J W.P. No.9000 of 2023 As a sequel, the miscellaneous petitions, if any, pending in the writ petition shall stand closed.
_________________ K. LAKSHMAN, J _________________ P. SREE SUDHA, J 28th June, 2023 Note:
Furnish C.C. of order in two (02) days.
B/O. Mgr/Pn/Sai