Telangana High Court
Khaiser Begum vs The State Of Telangana on 27 June, 2019
Author: Shammem Akther
Bench: Raghvendra Singh Chauhan, Shameem Akther
HIGH COURT FOR THE STATE OF TELANGANA
THE HON'BLE THE CHIEF JUSTICE RAGHVENDRA SINGH CHAUHAN
AND
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
Writ Petition No.9256 of 2019
Date: 27.06.2019
Between:
Khaiser Begum
...Petitioner
And
The State of Telangana,
Rep.by the Principal Secretary,
General Administration (SPl.(Law & Order Dept),
Secretariat, Hyderabad and others.
...Respondents
Counsel for the petitioner : Mr. P. Trivikram Reddy
Counsel for the respondents: The Advocate General
The Court made the following:
W.P.No.9256 of 2019,
2 HCJ & Dr. SAJ
ORDER:(Per the Hon'ble Dr. Justice Shammem Akther) Alleging that her husband, Mohammed Saleem @ Sunil Shetty @ Ibrahim @ Setty Saleem, S/o. Mohammed Jahangir, aged 44 years, is involved in six crimes of burglaries in the houses registered in 2018, her husband is being preventively detained by order dated 26.07.2018 passed by the Commissioner of Police & Additional District Magistrate (Executive), Hyderabad, the respondent No.2, and confirmed by order dated 01.10.2018 by the Principal Secretary to Government, the respondent No.1, the unfortunate wife, Khaiser Begum, has approached this Court.
Heard the learned counsel for the parties and perused the impugned orders.
Briefly, the facts of the case are that by relying on the six recent criminal cases registered against the detenu in the year 2018 with respect to burglaries in the houses within the limits of Hyderabad and Rachakonda Police Commissionerates to acquire easy money to lead lavish life, the Commissioner of Police, Hyderabad, the respondent No.2, passed the detention order dated 26.07.2018. According to the respondent No.2, the detenu was involved in as many as fourteen burglaries in the houses. But, merely relying on "the recent six cases", the detention order was passed. Subsequently, by order dated W.P.No.9256 of 2019, 3 HCJ & Dr. SAJ 01.10.2018, the detention order was confirmed by the respondent No.1. Hence, this petition before this Court.
Mr. P. Trivikram Reddy, the learned counsel for the petitioner, has raised the following contentions before this Court:
Firstly, relying only on the six recent cases registered against the detenu, the impugned detention order is passed.
Secondly, curiously, all the cases registered in 2018 relate to the offence of burglary, under Section 380 and under Sections 454 & 457 of IPC.
Thirdly, such petty cases can easily be tackled by the criminal justice system by holding a criminal trial. Therefore, all these cases fall within the ambit of "law and order problem". Relying on the case of Ram Manohar Lohia v. State of Bihar1, learned counsel has pleaded that a distinction has to be maintained between "a law and order problem" and "a public order problem". Since the cases narrated by the detaining authority do not fall within the ambit of "disturbance of public order", the detaining authority is unjustified in invoking the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake 1 AIR 1966 SC 740 W.P.No.9256 of 2019, 4 HCJ & Dr. SAJ Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act. Therefore, the detention of the detenu is patently illegal. Hence, the detaining authority is unjustified in claiming that these petty cases have created a panic and have "disturbed the public order".
Fourthly, youngmen, like the detenu, are randomly picked up by the police, and falsely implicated. Therefore, the detaining authority is not justified in invoking a draconian power under the preventive detention laws. According to the learned counsel, the detaining authority has to be extremely careful while passing a detention order. For detention ipso facto adversely affects the fundamental right of personal liberty enjoyed by the people under Article 21 of the Constitution of India.
Lastly, even while confirming the detention order dated 26.07.2018, by order dated 01.10.2018, the respondent No.1 has not applied his mind to the facts and circumstances of the case. Instead, the confirmation order has been passed in a mechanical manner. Admittedly, in the present case, the detenu had not filed any bail applications in four cases relied upon by the respondent No.2. Further, the bail applications of the detenu in Crime Nos.20 and 51 of 2018 relied by the W.P.No.9256 of 2019, 5 HCJ & Dr. SAJ respondent No.3, are pending consideration by the Court concerned. Thus, the detenu continues to be in judicial custody. Despite the fact that the detenu is in custody, still the preventive detention order has been passed against the detenu. Therefore, even the confirmation order deserves to be set aside by this Court.
On the other hand, Mr. Sharath, learned Special Government Pleader, has vehemently pleaded that the detenu has indulged in large number of criminal cases. Recently, he has indulged in burglaries in the houses in the limits of Hyderabad and Rachakonda Police Commissionerates to acquire easy money to lead lavish life. Therefore, the burglaries in the houses committed by the detenu have created a sense of insecurity and panic in the minds of the people. Hence, the case falls within the ambit of "public order". Therefore, the detaining authority was certainly justified in passing the impugned orders. Thus, the learned counsel has supported both the impugned orders.
In view of the submissions made by both the sides, the point that arises for determination in this Writ Petition is whether the detention order, dated 26.07.2018, passed by the respondent No.2 and the confirmation order, dated 01.10.2018, passed by the respondent No.1, are liable to be set aside?
W.P.No.9256 of 2019, 6 HCJ & Dr. SAJ In the case of Kanu Biswas v. State of West Bengal2, the Supreme Court has opined as under:
"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 the extent of the reach of the act upon the society. Public order is what the French call 'order publique' and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, as laid down in the above case, is: Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed?"
In Ram Manohar Lohia's case (supra) the Hon'ble Supreme Court has, in fact, deprecated the invoking of the preventive law in order to tackle a law and order problem. The Hon'ble Supreme Court has observed as under:
"54. We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detained public disorder is the apprehended result. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression "public order' take in every kind of disorders or only some of them? The answer to this serves to distinguish "public order" from "law and order" because the latter 2 (1972) 3 SCC 831 W.P.No.9256 of 2019,
7 HCJ & Dr. SAJ undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances." In the present case, the detenu is allegedly involved in six criminal cases in Crime Nos.20/2018, 51/2018, 17/2018, 50/2018, 88/2018 and 106/2018. We shall present in a tabular column 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 registration
Crime No. Offences Nature
Occurrence of FIR
20/2018 of
Section 454 & Non-bailable/
Kanchanbagh 29.01.2018 30.01.2018
380 of IPC cognizable
PS
51/2018 of
Section 457 & Non-bailable/
Kanchanbagh 24.03.2018 02.04.2018
380 of IPC cognizable
PS
W.P.No.9256 of 2019,
8 HCJ & Dr. SAJ
17/2018 of 454 & 380 of Non-bailable/
08.03.2018 08.03.2018
Kamatipura PS IPC cognizable
50/2018 of
Section 457 & Non-bailable/
Santoshnagar 17.03.2018 18.03.2018
380 of IPC cognizable
PS
88/2018 of Sections 457, Non-bailable/
30.03.2018 31.03.2018
Balapur PS 380 IPC cognizable
106/2018 of Sections 454, Non-bailable/
16.04.2018 16.04.2018
Balapur PS 380 IPC cognizable
A perusal of the impugned detention order reveals that the detaining authority has taken only six cases which were registered against the detenu in the year 2018 as the basis for preventively detaining him. But, all these six cases are for offences under Sections 454, 457 and 380 IPC. Since these are petty cases, the detenu can certainly be tried under the normal criminal justice system. And, if convicted, can certainly be punished by the Court of law. Thus, the case does not fall within the ambit of the words "public order". Instead, it falls within the scope of the words "law and order".
It is, indeed, trite to state that preventive laws are draconian in nature as they adversely affect the personal liberty of an individual. Therefore, in catena of cases, the Hon'ble Supreme Court has repeatedly opined that preventive detention laws should be used sparingly, rather than being used frequently. It is only when it is a case of "disturbance of public order" that the detaining authority would be legally justified in invoking and in using the powerful weapon of the preventive laws. But, the preventive laws cannot be used in order to control petty offences. In case the use of preventive detention W.P.No.9256 of 2019, 9 HCJ & Dr. SAJ laws were permitted to be invoked for tackling petty offences, it will make the normal criminal justice system redundant.
A perusal of the order, dated 26.07.2018, passed by the respondent No.2 reveals that the said order has been passed in a mechanical manner. For neither the facts, nor the circumstances have been discussed to any extent. Therefore, neither of the two orders are legally sustainable.
In the result, the Writ Petition is allowed. The impugned detention order dated 26.07.2018, passed by respondent No.2, and the confirmation order dated 01.10.2018, passed by respondent No.1 are set aside. The respondents are directed to set the detenu, namely, Mr. Mohammed Saleem @ Sunil Shetty @ Ibrahim @ Setty Saleem, S/o Mohammed Jahangir, at liberty forthwith, if he is no longer detained in judicial custody in the criminal cases, which have been so far registered against him.
The miscellaneous petitions pending in this writ petition, if any, shall stand closed. There shall be no order as to costs.
_____________________________________ RAGHVENDRA SINGH CHAUHAN, HCJ _____________________________________ Dr. SHAMEEM AKTHER, J 27.06.2019 Bvv