Telangana High Court
Shabana Begum vs The State Of Telangana on 11 April, 2022
Bench: Shameem Akther, Juvvadi Sridevi
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
WRIT PETITION Nos.6508 AND 8425 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.6508 of 2022 is filed by Ms. Shabana Begum, who is the sister of the detenu, namely, Mohd. Mukram @ Pappu @ Akram, and W.P.No.8425 of 2022 is filed by Ms. Shaher Banu, who is the mother of the detenu, namely, Mir Akber Ali @ Bahu @ Bahubali @ Akbar. The petitioners herein filed the present Habeas Corpus petitions challenging the separate detention orders vide No.145/PD-CELL/CCRB/RCKD/2021, dated 26.11.2021, and No.153/PD-CELL/CCRB/RCKD/2021, dated 07.12.2021, passed by the respondent No.2-Commissioner of Police, Rachakonda 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.370 and 491, General Administration (Spl. (Law & Dr.SA,J & JS,J 2 W.P.No.6508 & 8425 of 2022 Order)) Department, dated 15.02.2022 and 03.03.2022, respectively, passed by the Principal Secretary to 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 in both the writ petitions and perused the record.
4. The case of the petitioners is that basing on a recent solitary crime registered against the detenus viz., Crime No.533 of 2021 of Malkajgiri Police Station, Rachakonda Commissionerate, registered for the offences punishable under Section 395 of I.P.C. and Section 25 (1) (B) (b) of Arms Act, the respondent No.2 passed the impugned detention orders, dated 26.11.2021 and 07.12.2021. According to respondent No.2, the detenus are 'Dacoits', as they have been habitually engaging themselves in unlawful acts and indulging in committing dacoities, house burglaries, robberies, extortions etc., by acting as leader/member of criminal gang and committing gruesome offences in the limits of Rachakonda Police Commissionerate, thereby creating large scale fear and panic among the general public and thus acting in a Dr.SA,J & JS,J 3 W.P.No.6508 & 8425 of 2022 manner prejudicial to maintenance of public order, apart from disturbing the peace and tranquility in the society. Subsequently, the impugned detention orders were confirmed by the Government, vide G.O.Rt.Nos.370 and 491, dated 15.02.2022 and 03.03.2022, respectively.
5. Learned counsel for the petitioners would contend that the impugned detention orders have been passed in a mechanical manner and without application of mind. Already criminal law was set into motion against the detenus. The detenus were granted statutory bail under Section 167 (2) Cr.P.C. in the solitary crime relied on by the detaining authority, on certain conditions. The conditions imposed in the statutory bail granted to the detenu in W.P.No.6508 of 2022 were not reflected in the detention order impugned therein. Before the detenus were released from jail, the impugned detention orders have been passed. Hence, the detenus continue to be in judicial custody. The impugned detention orders were passed on the apprehension that there is imminent possibility of the detenus again indulging in similar prejudicial activities soon after their release from jail, 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 Dr.SA,J & JS,J 4 W.P.No.6508 & 8425 of 2022 word "law and order". Since the offences alleged are under the Indian Penal Code and the Arms Act, the detenus can certainly be tried and convicted under the Indian 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 detenus. Hence, the impugned orders tantamount to colourable exercise of power. The impugned orders are legally unsustainable and ultimately, prayed to allow the Writ Petitions, as prayed for. In support of her contentions, the learned counsel had relied on a decision of the Division Bench of the erstwhile common High Court for the States of Telangana and Andhra Pradesh in Vasanthu Sumalatha and others v. State of Andhra Pradesh1.
6. 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 'Dacoits'. The accusations levelled against the detenus in the subject crime are that they have threatened the complainant on the point of knife to give Rs.5,000/- cash and biryani parcel, otherwise they would kill him, and that they have also demanded to give Rs.10,000/- and biryani parcels every month, as monthly mamool. 1 2015 SCC online Hyd 790 Dr.SA,J & JS,J 5 W.P.No.6508 & 8425 of 2022 The illegal acts of the detenus and their associates caused a sense of terror and fear among the general public, thus adversely affecting the public order. Earlier, four detention orders were passed against the detenu in W.P.No.6508 of 2022 and two detention orders were passed against the detenu in W.P.No.8425 of 2022. In spite of the same, the detenus did not mend their attitude and again committed extortions and robberies. Since the detenus got statutory bail in the solitary crime relied upon by the detaining authority, the apprehension of the detaining authority that soon after their release from jail, there is imminent possibility of they indulging in similar offences, is not misconceived. Since the modus of committing the crime was dacoity, it created sufficient panic in the minds of the general public. Therefore, the detaining authority was legally justified in passing the impugned detention orders. Further, the Advisory Board rendered its opinion that there is sufficient cause for detention of the detenus and on considering the same along with the entire material, the Government confirmed the impugned detention orders. All the mandatory requirements were strictly followed by the detaining authority while passing the impugned detention orders. The impugned orders are legally sustainable and ultimately, prayed to dismiss the Writ Petitions.
Dr.SA,J & JS,J 6 W.P.No.6508 & 8425 of 2022
7. 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.145 /PD-CELL/CCRB/RCKD/2021, dated 26.11.2021, and No.153/PD-CELL/CCRB/RCKD/2021, dated 07.12.2021, passed by the respondent No.2, and the consequential confirmation orders vide G.O.Rt.Nos.370 and 491, General Administration (Spl. (Law & Order)) Department, dated 15.02.2022 and 03.03.2022, passed by the respondent No.1, are liable to be set aside?"
POINT:
8. 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 & JS,J 7 W.P.No.6508 & 8425 of 2022
9. In Ram Manohar Lohia v. State of Bihar2, 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.
10. In Kanu Biswas v. State of West Bengal3, 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.
11. In the present cases, the detaining authority, basing on a solitary crime indicated above, had passed the impugned detention orders, dated 25.11.2021 and 07.12.2021. We shall present it in a tabular form the date of occurrence, the date of 2 AIR 1966 SC 740 3 (1972) 3 SCC 831 Dr.SA,J & JS,J 8 W.P.No.6508 & 8425 of 2022 registration of FIR, the offence complained of and its nature, such as bailable/non-bailable or cognizable/non-cognizable.
Date of
Date of
Crime No. registration Offences Nature
Occurrence
of FIR
Section 395
IPC -
Section 395 of IPC
Cognizable/
and
Non Bailable
533/2021 of 20.08.2021 and Section 25 (1) (B)
22.08.2021
Malkajgiri PS 22.08.2021 (b) of Arms Act
Section
25(1)(B) (b) of
Arms Act -
Bailable
12. As seen from the material placed on record, the solitary crime relied upon by the detaining authority for preventively detaining the detenus relate to Dacoity. The detenus were arrested in connection with the said crime and remanded to judicial custody. The two bail petitions moved by the detenus before the Sessions Court concerned were dismissed. Subsequently, the detenus were granted statutory bail under Section 167(2) Cr.P.C. by the Court concerned on certain conditions. Before the detenus are released from jail, the impugned detention orders have been passed. The conditional order of bail restricts the movement of the detenus and requires them to appear before the officer concerned periodically. It appears that the investigating officer had not completed investigation within a period of ninety days. Therefore, the Dr.SA,J & JS,J 9 W.P.No.6508 & 8425 of 2022 detenus were granted bail under Section 167(2) of Cr.P.C. It is a grave omission on the part of the investigating officer in not completing the investigation within a period of ninety days. The very purpose of enacting the provision under Section 167(2) of Cr.P.C. is to expedite the investigation, so that the valuable material evidence is not lost and can be collected and produced before the Court. For the laches on the part of the investigating officer, it is not appropriate to invoke draconian preventive detention law against the detenus. The relief granted to the detenus under Section 167(2) of Cr.P.C. cannot be scuttled by invoking the preventive detention law. Further, a bare perusal of the detention order, dated 26.11.2021, impugned in W.P.No.6508 of 2022 clearly reveals that though there is mention of grant of statutory bail to the detenu therein by the Court concerned in the solitary crime relied on by the detaining authority, the conditions imposed in the said bail order are not referred to therein. It is apt to state that non-consideration of the conditional bail order would amount to non-application of mind, as non-consideration of relevant and important material is fatal to the detention order. Failure of the sponsoring authority to place the conditional bail order before the detaining authority is fatal, as it is a vital material which would have weighed with the detaining authority at the time Dr.SA,J & JS,J 10 W.P.No.6508 & 8425 of 2022 of passing the detention order. In Vasanthu Sumalatha's case (supra 1), it was held as follows:
"42. The bail order is a vital material for consideration. If it is not considered, the satisfaction of the detaining authority would be impaired. If it is considered, it would then be a document relied on by the detaining authority, though not specifically mentioned in the annexure to the order of detention, and ought to form part of the documents to be supplied to the detenu with the grounds of detention; and, without them, the grounds themselves cannot be said to have been complete. It amounts to denial of the detenu's right to make an effective representation, and would be in violation of Article 22(5) of the Constitution of India. It would render the continued detention of the detenu illegal and entitle him to be set at liberty.
43. If the bail order, which is a vital material, is not considered, the satisfaction of the detaining authority itself would be impaired. (V. Muragesh v. Collector and District Magistrate, Chittoor MANU/AP/0862/2012 : 2013 Crl.L.J. 585; Durgam Subramanyam v. Government of A.P. MANU/AP/1179/2012 :
2013 (4) ALT 243 (D.B); Kamal Kishore Saini MANU/SC/0303/1987 : (1988) 1 SCC 287; M. Ahmedkutty MANU/SC/0427/1990 : (1990) 2 SCC 1). Non-placing and non- consideration of material, as vital as the bail order, vitiates the subjective decision of the detaining authority, and the Court cannot attempt to assess in what manner, and to what extent, consideration of the order granting bail to the detenu would have affected the satisfaction of the detaining authority. (Rushikesh Tanaji Bhoite v. State of Maharashtra MANU/SC/0001/2012 :
(2012) 2 SCC 72). Failure of the sponsoring authority to place the conditional orders, granting anticipatory bail/bail, before the detaining authority is fatal as it is a vital material which would have weighed with the detaining authority at the time of passing the detention order."
Under these circumstances, the apprehension of the detaining authority that there is imminent possibility of the detenus indulging in similar offences after release on bail, is highly misplaced. Further, in the instant cases, since the detenus were granted statutory bail by the Court concerned on certain conditions, if it is Dr.SA,J & JS,J 11 W.P.No.6508 & 8425 of 2022 found that the detenus violated the bail conditions, the prosecution can apprise the same to the Court concerned and seek cancellation of bail. Though it is stated that earlier also detention orders were passed against the detenus, the same cannot be a ground to pass the impugned detention orders. Moreover, criminal law was already set into motion against the detenus. Since the detenus have allegedly committed offences punishable under the Indian Penal Code and the Arms Act, the solitary crime relied on by the detaining authority can be effectively dealt with under the provisions of the Penal Code and said special law and there was no need for the detaining authority to invoke draconian preventive detention law against the detenus. The offences allegedly committed by the detenu in the subject crime relied on by the detaining authority do not fall within the ambit of the words "public order" or "disturbance of public order". Instead, it falls within the scope of the word "law and order". Hence, there was no need for the detaining authority to pass the impugned detention orders. The detaining authority cannot be permitted to subvert, supplant or substitute the punitive law of land, by ready resort to preventive detention.
Dr.SA,J & JS,J 12 W.P.No.6508 & 8425 of 2022
13. For the foregoing reasons, the impugned orders are legally unsustainable and are liable to be set aside.
14. In the result, the Writ Petitions are allowed. The impugned detention orders vide No.145/PD-CELL/CCRB/ RCKD/2021, dated 26.11.2021 and No.153/PD-CELL/CCRB/ RCKD/2021, dated 07.12.2021, passed by the respondent No.2, and the consequential confirmation orders vide G.O.Rt.Nos.370 and 491, General Administration (Spl. (Law & Order)) Department, dated 15.02.2022 and 03.03.2022, respectively, passed by the respondent No.1, are hereby set aside. The respondents are directed to set the detenus, namely Mohd. Mukram @ Pappu @ Akram, S/o. Mohd. Ahmed, and Mir Akber Ali @ Bahu @ Bahubali @ Akbar, S/o. Mir Murtuza Ali, at liberty forthwith, if they are no longer required in any other criminal case.
Miscellaneous Petitions, if any, pending in these Writ Petitions shall stand closed. There shall be no order as to costs.
______________________ Dr. SHAMEEM AKTHER, J __________________ JUVVADI SRIDEVI, J Date: 11-04-2022 MD