Telangana High Court
Syed Hussain Peera 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 Nos.13473 AND 13793 OF 2022
COMMON ORDER:(Per Hon'ble Dr. Justice Shameem Akther) Though the petitioners in both these Writ Petitions are different, since the issue involved is one and the same, both the Writ Petitions are being taken up together and disposed of by way of this common order.
2. W.P.No.13473 of 2022 is filed by Mr. Syed Hussain Peera, who is the father of the detenu, namely, Syed Akbar Vali @ Micheal, and W.P.No.13793 of 2022 is filed by Mr. Konganapalle Suryanarayana, who is the father of the detenu, namely, Konganapalle Raj Kumar. The petitioners herein filed the present Habeas Corpus petitions challenging the separate detention orders vide No:184/PD-CELL/CYB/2021, and No:185/PD-CELL/CYB/2021, of even date, dated 31.12.2021, passed by the respondent No.2- Commissioner of Police, Cyberabad Commissionerate, whereby, the detenus were detained under Section 3(2) of the Telangana Preventive Detention Act, 1986 (Act 1 of 1986), and the consequential confirmation orders vide G.O.Rt.Nos.795 and 796, General Administration (Spl. (Law & Order)) Department, of even date, dated 04.04.2022, passed by the Chief Secretary to 2 Dr.SA,J & NTR,J W.P.Nos.13473 & 13793 of 2022 Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana.
3. Heard the learned counsel for the petitioners, learned Assistant Government Pleader for Home representing the learned Additional Advocate General appearing for the respondents and perused the record.
4. Learned counsel for the petitioners would submit that the impugned detention orders were passed by the respondent No.2 by relying on a recent solitary crime registered against the detenus viz., Crime No.813 of 2021 of KPHB Colony Police Station, registered for the offences under Section 370-A I.P.C. and Sections 3, 4 and 5 of Immoral Traffic (Prevention) Act, 1956 (for short, 'PITA'). Subsequently, the impugned detention orders were confirmed by the Government, vide G.O.Rt.Nos.795 and 796, of even date, dated 04.04.2022. The solitary crime relied on by the detaining authority does not add up to "disturbing the public order"
and it is confined within the ambit and scope of the words "law and order". Since the offences alleged are under the Indian Penal Code and PITA, the detenus can certainly be tried and convicted under the Penal Code and the said special law. The detenus were granted conditional bail by the Court concerned in the said crime 3 Dr.SA,J & NTR,J W.P.Nos.13473 & 13793 of 2022 on 20.10.2021 and released from jail vide release orders, dated 27.10.2021 and 25.10.2021, respectively. But again, the detenus were sent to jail by invoking the draconian preventive detention law. Further, the satisfaction reached by the detaining authority that there is imminent possibility of the detenus repeating similar activities after release from jail, which is detrimental to the public order, unless they are prevented from doing so by an appropriate order of detention, is misconceived. The six crimes referred as criminal history of the detenu in W.P.No.13473 of 2022 relate to commission of offences under the Indian Penal Code. Thus, there was no need for the detaining authority to invoke the draconian preventive detention law against the detenus. Hence, the impugned orders are legally unsustainable and ultimately, prayed to allow the Writ Petitions, 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 detenus are 'Immoral Traffic Offenders'. They are natives of Kurnool District. As the income derived by them was inadequate to meet their lavishes, they along with their associates have engaged in unlawful activities of organizing prostitution by running brothel under the guise of 'RA 4 Dr.SA,J & NTR,J W.P.Nos.13473 & 13793 of 2022 SPA & Massage Centre'. Their activities are causing social insecurity to the girls and women living in the locality apart from causing embarrassment to their families. Their immoral activities would also lead to social unrest endangering public health. Thus, their activities are prejudicial to maintenance of public order. Therefore, the satisfaction reached by the detaining authority is not misconceived. 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 Petitions.
6. In view of the submissions made by both the sides, the point that arises for determination in these Writ Petitions is:
"Whether the impugned detention orders vide No:184/PD- CELL/CYB/2021 and No:185/PD-CELL/CYB/2021 of even date, dated 31.12.2021, passed by the respondent No.2, and the consequential confirmation orders vide G.O.Rt.No.795 and 796, General Administration (Spl. (Law & Order)) Department, of even date, dated 04.04.2022, 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 committed against a particular individual fall within the ambit of "law and order" and when the 5 Dr.SA,J & NTR,J W.P.Nos.13473 & 13793 of 2022 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.
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 1 AIR 1966 SC 740 2 (1972) 3 SCC 831 6 Dr.SA,J & NTR,J W.P.Nos.13473 & 13793 of 2022 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 cases, the detaining authority, basing on a solitary crime indicated above, has passed the impugned detention orders of even date, dated 31.12.2021. We shall present it in a tabular form the date of occurrence, the date of registration of FIR, the offences complained of and their nature, such as bailable/non-bailable or cognizable/non-cognizable.
Date of
Date of
Crime No. registration Offences Nature
Occurrence
of FIR
Section 370-A
of IPC:
Section 370-A of
Cognizable/
IPC
813/2021 of Non-Bailable
01.09.2021 01.09.2021 and
KPHB Colony PS
Sections 3, 4 and
Sections 3, 4 &
5 of PITA
5 of PITA:
Cognizable
11. As seen from the material placed on record, the solitary crime relied upon by the detaining authority for preventively detaining the detenus relates to immoral trafficking. The six cases referred as criminal history of the detenu in W.P.No.13473 of 2022 were committed in the years 2011 to 2013 and they relate to commission of theft, dishonestly receiving stolen property and murder. Those offences are distinct from the offences in the solitary crime relied on by the detaining authority. Here, it is 7 Dr.SA,J & NTR,J W.P.Nos.13473 & 13793 of 2022 appropriate to refer to the decision rendered by the Honourable Supreme Court in Vijay Narain Singh v. State of Bihar3, wherein it was held that a single act or omission cannot be characterized as a habitual act or omission because the idea of 'habit' involves an element of persistence and a tendency to repeat the acts or omissions of the same class or kind, if the acts or omission in question are not of the same kind or even if they are of the same kind when they are committed with a long interval of time between them, they cannot be treated as habitual ones. In the instant case, there is no record to substantiate that there is tendency of repetition of commission of similar offence by the detenus. Further, the detenus were arrested in connection with the said crime and subsequently, they were granted conditional bail by the learned XV Additional Metropolitan Sessions Judge, Rangareddy District at Kukatpally, vide order, dated 20.10.2021, passed in Crl.M.P.No.967 of 2021 and were released from jail vide release orders, dated 27.10.2021 and 25.10.2021, respectively. The conditional order of bail restricts the movement of the detenus and requires them to appear before the officer concerned periodically. It is the bounden duty of the Police to inform the learned Public Prosecutor about the conduct of the detenus and to handover the 3 (1984) 3 SCC 14 8 Dr.SA,J & NTR,J W.P.Nos.13473 & 13793 of 2022 entire case record available against the detenus. The police are supposed to be vigilant in collecting the whole data against the detenus and furnish the same to the Public Prosecutor/Additional Public Prosecutor to defeat the bail application/s of the detenus. Since conditional bail was granted to the detenus in the solitary crime relied on by the detaining authority, if it is found that the detenus have violated the bail conditions or involved in further crimes, the prosecution can apprise the same to the Court concerned and seek cancellation of bail/s. Under these circumstances, the satisfaction reached by the detaining authority that there is imminent possibility of the detenus repeating similar activities after release from jail, which is detrimental to public order, unless they are prevented from doing so by an appropriate order of detention, is misconceived. Moreover, criminal law was already set into motion against the detenus. Since the detenus have committed the 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 said special law. The offences committed by the detenus in the solitary crime relied on by the detaining authority do not fall within the ambit of the words "public order" or "disturbance of public order". Instead, they fall 9 Dr.SA,J & NTR,J W.P.Nos.13473 & 13793 of 2022 within the scope of the words "law and order". Hence, 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. Further, this Court had taken a similar view in W.P.Nos.12053 and 23670 of 2022. The facts and circumstances in the aforesaid Writ Petitions are similar to the facts and circumstances of the case on hand. The detention orders as well as the confirmation orders impugned in the aforesaid Writ Petitions were set aside by this Court vide orders, dated 14.06.2022 and 01.07.2022, respectively.
12. For the foregoing reasons, the impugned orders are legally unsustainable and are liable to be set aside.
13. In the result, the Writ Petitions are allowed. The impugned detention orders vide No:184/PD-CELL/CYB/2021 and No:185/PD- CELL/CYB/2021, of even date, dated 31.12.2021, passed by the respondent No.2, and the consequential confirmation orders vide G.O.Rt.Nos.795 and 796, General Administration (Spl. (Law & Order)) Department, of even date, dated 04.04.2022, passed by the Chief Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana, are hereby 10 Dr.SA,J & NTR,J W.P.Nos.13473 & 13793 of 2022 set aside. The respondents are directed to set the detenus, namely Syed Akbar Vali @ Micheal, S/o. Syed Hussain Peera, and Konganapalle Raj Kumar, S/o. Surya Narayana, at liberty forthwith, if they are no longer required in any other criminal case.
The Miscellaneous Petitions, if any, pending in these Writ Petitions shall stand closed. There shall be no order as to costs.
______________________ Dr. SHAMEEM AKTHER, J ________________ N. TUKARAMJI, J Date: 04.07.2022 MD