Telangana High Court
Boda Naresh vs The State Of Telangana And 2 Others, on 27 September, 2022
Author: Shameem Akther
Bench: Shameem Akther
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE E.V.VENUGOPAL
WRIT PETITION No.28596 OF 2022
ORDER:(Per Hon'ble Dr. Justice Shameem Akther) Sri Boda Naresh, the petitioner, has filed this Habeas Corpus petition on behalf of his cousin, Boda Ravi, S/o. Pulya, the detenu, challenging the detention order vide Rc.No.C1/1339/2022, dated 30.06.2022, 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.1680, General Administration (Spl. (Law & Order)) Department, dated 02.09.2022, passed by the Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana.
2. Heard the learned counsel for petitioner, learned Special Government Pleader for the respondents and perused the record.
3. Learned counsel for the petitioner would submit that by relying on five (5) crimes viz., (1) Crime No.44/2022 of Prohibition and Excise Station, Narsampet, registered for the offence under 2 Dr.SA,J & EVV,J W.P.No.28596 of 2022 Section 7(A) read with 8(e) of T.S.Prohibition Act, 1995; (2) Crime No.81/2022 of Prohibition and Excise Station, Narsampet, registered for the offence under Section 34(e) of T.S.Excise Act, 1968; (3) Crime No.63/2022 of Prohibition and Excise Station, Wardhannapet, registered for the offence under Section 7(A) read with 8(e) of T.S.Prohibition Act, 1995 and 34(e) of T.S.Excise Act, 1968; (4) Crime No.103/2022 of Prohibition and Excise Station, Narsampet, registered for the offence under Section 7(A) read with 8(e) of T.S.Prohibition Act, 1995; and (5) Crime No.180/2022 of Prohibition and Excise Station, Narsampet, registered for the offence under Section 7(A) read with 8(e) of T.S.Prohibition Act, 1995, the respondent No.2 passed the impugned detention order, dated 30.06.2022. Subsequently, the impugned detention order was confirmed by the Government, vide G.O.Rt.No.1680, dated 02.09.2022. In all the five crimes relied by the detaining authority, notices under Section 41A Cr.P.C. were issued to the detenu and he has been complying with the directions in the said notices. However, the detenu was sent to jail by invoking the draconian preventive detention law. The five (5) crimes relied 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 alleged are under the 3 Dr.SA,J & EVV,J W.P.No.28596 of 2022 Telangana Prohibition Act and Telangana 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 Special Government Pleader appearing for the respondents supported the impugned orders and submitted that the detenu is a 'bootlegger'. He has been habitually indulging in clandestine possession, transportation and sale of illicitly distilled liquor and raw material for the manufacturing of illicitly distilled liquor. The illegal activities of the detenu are prejudicial to the maintenance of public order. The five (5) crimes relied by the detaining authority amount to disturbance of public order 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.C1/1339/2022, dated 30.06.2022, passed by the respondent No.2, and the consequential confirmation order 4 Dr.SA,J & EVV,J W.P.No.28596 of 2022 vide G.O.Rt.No.1680, General Administration (Spl. (Law & Order)) Department, dated 02.09.2022, 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 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 1 AIR 1966 SC 740 5 Dr.SA,J & EVV,J W.P.No.28596 of 2022 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.
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 2 (1972) 3 SCC 831 3 Crl.A.No.908 of 2022 4 2022 SCC Online SC 424 5 (2021) 2 Supreme Court Cases 415 6 Dr.SA,J & EVV,J W.P.No.28596 of 2022
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 five (5) crimes indicated above, has passed the impugned detention order, dated 30.06.2022. 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.
Date of
Date of
C.O.R.No. registration Offences Nature
Occurrence
of FIR
Section 7(A) read
44/2022 of with 8(e) of TS
P&E Station, 07.03.2022 07.03.2022 Prohibition Act, Cognizable/
Narsampet 1995 Non-bailable
81/2022 of
Section 34(e) of TS
P&E Station, 10.04.2022 10.04.2022 Cognizable/
Excise Act, 1968
Narsampet Non-bailable
Section 7(A) read
63/2022 of with 8(e) of TS
Prohibition and Cognizable/
P&E Station, 21.04.2022 21.04.2022
Section 34(e) of TS Non-bailable
Wardhannapet Excise Act
103/2022 of Section 7(A) read Cognizable/
P&E Station, 27.04.2022 27.04.2022 with 8(e) of TS Non-bailable
Narsampet Prohibition
180/2022 of Section 7(A) read Cognizable/
P&E Station, 29.06.2022 29.06.2022 with 8(e) of TS Non-bailable
Narsampet Prohibition
7 Dr.SA,J & EVV,J
W.P.No.28596 of 2022
11. As seen from the material placed on record, the accusation against the detenu in the aforesaid crimes is that he was supplying the raw material i.e., jiggery and alum for preparation of illicitly distilled liquor and found to be habitually indulging in clandestine possession, transportation and sale of illicitly distilled liquor in contravention of the provisions of Telangana Prohibition Act, 1995 and Telangana Excise Act, 1968, which are prejudicial to the maintenance of public order. In all the five (5) crimes relied by the detaining authority, notices under Section 41A Cr.P.C. were issued to the detenu. The subjective satisfaction recorded by the detaining authority is as follows:
"...It is not possible to prevent you from indulging in similar prejudicial activities which endanger the public health and order. In view of the above mentioned dangers to public health and order, there is no other option except invoking the provisions of PD Act against you to detain you to insulate the society from your evil deeds.
It is also observed over a period of time that there is no other go except invoking the extraordinary jurisdiction conferred on the Collector and District Magistrate under Section 3(1) of the Telangana Preventive Detention Act as an extreme measure in order to prevent you from perpetuating and perpetrating the illegal activities stated supra and to save the public from the grave threat posed to their health by your illegal acts.
Whereas, after careful consideration of the material placed before me, I am satisfied that you are again likely to indulge in illegal storage, sale, possession and transportation of illicitly distilled liquor since the prohibition and excise laws in vogue in Telangana State failed to curb your illegal acts. And, hence there arose a need to invoke the Telangana Act 1 of 1986 as amended in Telangana Ordinance No.3 of 2017 against you as your activities are found to be dangerous, deleterious and detrimental to public health and prejudicial to the maintenance of public order."
8 Dr.SA,J & EVV,J W.P.No.28596 of 2022 If the detenu violates any of the conditions imposed in the notices issued to him under Section 41A of Cr.P.C., it is for the police concerned to arrest the detenu by recording the reasons in writing. Under these circumstances, the subjective satisfaction recorded by the detaining authority that it is not possible to prevent the detenu from indulging in similar prejudicial activities which endanger the public health and order and that there is no other option except invoking the provisions of PD Act against the detenu to detain him to insulate the society from your evil deeds is misconceived. Moreover, criminal law was already set into motion against the detenu. Since the detenu has committed the offences punishable under the Prohibition Act and Excise Act, the said crimes can be effectively dealt with under the provisions of the said special law. 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.
9 Dr.SA,J & EVV,J W.P.No.28596 of 2022
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.C1/1339/2022, dated 30.06.2022, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.1680, General Administration (Spl. (Law & Order)) Department, dated 02.09.2022, 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 Boda Ravi, S/o. Pulya, at liberty forthwith, if he is no longer required in any other case.
Miscellaneous Petitions, if any, pending in this Writ Petition, shall stand closed. There shall be no order as to costs.
______________________ Dr. SHAMEEM AKTHER, J ________________ E.V.VENUOPAL, J 27th September, 2022 PNS / BVV