Telangana High Court
Ajijul Ali Mondal vs The State Of Telangana on 4 July, 2022
Author: Shameem Akther
Bench: Shameem Akther, N.Tukaramji
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE N.TUKARAMJI
WRIT PETITION No.12045 OF 2022
ORDER:(Per Hon'ble Dr. Justice Shameem Akther) Mr. Ajijul Ali Mondal, the petitioner, has filed this Habeas Corpus petition on behalf of his wife, Sabhina Mulla, the detenu, challenging the detention order vide No.03/PD-CELL/CCRB/RCKD/ 2022, dated 05.01.2022, passed by the respondent No.2, whereby, the detenue 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.749, General Administration (Spl. (Law & Order)) Department, dated 31.03.2022 passed by the Chief Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana.
2. Heard Sri Pasham Trivikram Reddy, learned counsel for the petitioner, Sri T.Srikanth Reddy, learned Assistant Government Pleader for Home appearing for the respondents, and perused the record.
3. The case of the petitioner is that basing on a recent solitary crime registered against the detenue viz., Crime No.842 of 2021 Dr.SA,J & NTR,J 2 W.P.No.12045 of 2022 of Neredmet Police Station, for the offences under Sections 370(A) IPC and Sections 3, 4 and 5 of Immortal Traffic (Prevention) Act, 1956 (for short 'PITA'), the respondent No.2 passed the impugned detention order, dated 05.01.2022. According to respondent No.2, the detenue is an 'Immoral Traffic Offender', as she along with her associate, has been indulging in human trafficking for the sake of prostitution and running organized prostitution business with trafficked women for pecuniary benefits. Her activities are not only endangering the family system but also harmful to the inhabitants of the locality, creating embarrassing situation to the families living there. Further, the immoral activates of the detenue are leading to social unrest causing widespread health hazards and are thus prejudicial to the maintenance of public order and public health at large. Subsequently, the impugned detention order was confirmed by the Government, vide G.O.Rt.No.749, dated 31.03.2022.
4. Learned counsel for the petitioner would contend that the impugned detention order has been passed in a mechanical manner and without application of mind. Already criminal law was set into motion against the detenu. Further, there is no material to connect the detenue with the alleged crime. The subjective satisfaction arrived at by the detaining authority for preventively Dr.SA,J & NTR,J 3 W.P.No.12045 of 2022 detaining the detenue is tainted and illegal. Further, the detenue was granted conditional bail by the Court concerned in the solitary crime relied by the detaining authority. But she was again sent to jail by invoking the draconian preventive detention laws on the apprehension that there is imminent possibility of the detenue indulging in similar prejudicial activities, 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". Since the offence alleged is under the Indian Penal Code and PITA, the detenue can certainly be tried and convicted under the penal code and the said special law. Thus, there was no need for the detaining authority to invoke the draconian preventive detention law against the detenu. Hence, the impugned orders tantamount to colourable exercise of power. The impugned orders are legally unsustainable and ultimately, prayed to 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 detenue is an 'Immoral Traffic Offender'. She along with her associate has been indulging in human trafficking for the sake of prostitution and running organized prostitution business with trafficked women for Dr.SA,J & NTR,J 4 W.P.No.12045 of 2022 pecuniary benefits. She has been procuring women from West Bengal and other parts of Telangana State through her agent Saleem and engaging herself in unlawful acts and indulging in the acts of organizing prostitution clandestinely by acting as a leader/member of criminal gang for making quick money in a short period. Her activities are not only endangering the family system but also harmful to the inhabitants of the locality, creating embarrassing situation to the families living there. Further, the immoral activates of the detenue are leading to social unrest causing widespread health hazards and are thus prejudicial to the maintenance of public order and public health at large. Therefore, the detaining authority was legally justified in passing the impugned detention order. Further, the Advisory Board rendered its opinion that there is sufficient cause for detention of the detenue and on considering the same along with the entire material, the Government confirmed the impugned detention order vide G.O.Rt.No.749, dated 31.03.2022. All the mandatory requirements were strictly followed by the detaining authority while passing the impugned detention order. The impugned orders are legally sustainable and ultimately, prayed to dismiss the Writ Petition.
Dr.SA,J & NTR,J 5 W.P.No.12045 of 2022
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. 03/PD-CELL/CCRB/RCKD/2022, dated 05.01.2022, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.749, General Administration (Spl. (Law & Order)) Department, dated 31.03.2022, 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 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.
Dr.SA,J & NTR,J 6 W.P.No.12045 of 2022
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 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.
10. In the present case, the detaining authority, basing on a solitary crime indicated above, has passed the impugned detention order, dated 05.01.2022. We shall present it in a tabular form the date of occurrence, the date of registration of FIR, the offence complained of and its nature, such as bailable/non-bailable or cognizable/non-cognizable.
1 AIR 1966 SC 740 2 (1972) 3 SCC 831 Dr.SA,J & NTR,J 7 W.P.No.12045 of 2022 Date of Date of Crime No. registration Offences Nature Occurrence of FIR Section 370(A) of IPC:
Cognizable/ Section 370(A) of Non Bailable 842/2021 of 10.11.2021 10.11.2021 IPC and 3, 4 and 5 Sections 3, 4 Neredmet PS of PITA and 5 of PITA :
Cognizable/ Non-Bailable
11. As seen from the material placed on record, the solitary crime relied upon by the detaining authority for preventively detaining the detenue relates to immoral trafficking. The detenue was arrayed as A.1 in the subject crime. The crime was detected on 10.11.2021 and the detenue was arrested on the same day and remanded to judicial custody on 11.11.2021. The detenue moved bail application in the said crime and it was dismissed. Thereafter, the detenue moved another bail petition before the Court concerned and the Court concerned, vide order, dated 04.01.2022, granted bail to the detenue imposing certain conditions and she was released from judicial custody on bail. The conditions imposed in the bail order are that the detenue shall execute a personal bond for Rs.20,000/- with two sureties; after release, she shall appear before the SHO, Neredmet Police Station on every alternative day between 09:00 AM and 11:00 AM for a period of three months or till filing of charge sheet, whichever is earlier. Under these circumstances, the apprehension of the detaining authority that Dr.SA,J & NTR,J 8 W.P.No.12045 of 2022 since the detenue was granted bail, there is imminent possibility of her indulging in similar prejudicial activities which are detrimental to the maintenance of public order, unless she is prevented from doing so by an appropriate order of detention, is highly misplaced. It is the bounden duty of the Police to inform the learned Public Prosecutor about the conduct of the detenue and to hand over the entire case record available against the detenu. The police are supposed to be vigilant in collecting the whole data against the detenue and furnish the same to the Public Prosecutor/Additional Public Prosecutor to defeat the bail application/s of the detenu. Even assuming that the bail conditions are violated by the detenue and she is involved in further crimes, nothing prevents the prosecution to apprise the same to the concerned Court and seek cancellation of bail. By virtue of the conditions imposed in the bail order, the detenue would be under surveillance of the Court and the police. Moreover, criminal law was already set into motion against the detenu. Further, there is no antecedent criminal history against the detenu. Since the detenue has committed offences punishable under the Indian Penal Code and PITA, the said crime can be effectively dealt with under the provisions of the Penal Code and the special law and there was no need for the detaining authority to invoke draconian preventive detention laws. The Dr.SA,J & NTR,J 9 W.P.No.12045 of 2022 detaining authority cannot be permitted to subvert, supplant or substitute the punitive law of land, by ready resort to preventive detention.
12. Grave as the offence may be, it relates to immoral trafficking. So, no inference of disturbance of public order can be drawn. The subject case can certainly be tried under the Penal Code and special law. Thus, this case does not fall within the ambit of the words "public order". Instead, it falls within the scope of the words "law and order". Hence, there was no need for the detaining authority to pass the impugned detention order.
13. For the foregoing reasons, the impugned orders are legally unsustainable and are liable to be set aside.
15. In the result, the Writ Petition is allowed. The impugned detention order vide No.03/PD-CELL/CCRB/RCKD/2022 dated 05.01.2022, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.749, General Administration (Spl.(Law & Order)) Department, dated 31.03.2022, 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 detenue, namely Smt.Sabhina Mulla W/o.
Dr.SA,J & NTR,J 10 W.P.No.12045 of 2022 Aziz-Ul Ali Mondal, at liberty forthwith, if she is no longer required in any other criminal case.
The Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed. There shall be no order as to costs.
____________________ Dr. SHAMEEM AKTHER, J ____________________ N.TUKARAMJI, J Date: 04th July, 2022 scs