Telangana High Court
Peraboina Mamatha vs The State Of Telangana on 12 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.17426 OF 2022
ORDER:(Per Hon'ble Dr. Justice Shameem Akther) Smt. Peraboina Mamatha, the petitioner, has filed this Habeas Corpus petition on behalf of her husband, Peraboina Nagaraju, S/o. Kotaiah, the detenu, challenging the detention order vide C.No.C1/645/2022, dated 31.03.2022, passed by the respondent No.2, 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.1250, General Administration (Spl. (Law & Order)) Department, dated 18.06.2022, passed by the Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana.
2. Heard the learned counsel for the petitioner, learned Assistant Government Pleader for Home representing the learned Advocate General appearing for the respondents and perused the record.
2 Dr.SA,J & NTR,J W.P.No.17426 of 2022
3. Learned counsel for the petitioner would submit that by relying on nine crimes viz., C.O.R.Nos.9, 53, 111, 115 of 2021 and C.O.R.Nos.11, 38, 74 and 76 of 2022 of Prohibition and Excise Station, Huzurnagar, Suryapet District, registered for the offence under Section 7(A) read with 8(e) of the Telangana Prohibition Act, 1995, and C.O.R.No.81 of 2021 of Prohibition and Excise Station, Huzurnagar, registered for the offences under Section 7(A) read with 8(e) of the Telangana Prohibition Act and Section 34(e) of the Telangana Excise Act, 1968, the respondent No.2 passed the impugned detention order, dated 31.03.2022. Subsequently, the impugned detention order was confirmed by the Government, vide G.O.Rt.No.1250, dated 18.06.2022. In all the nine crimes relied on by the detaining authority, notice under Section 41A Cr.P.C. was issued to the detenu and he has been complying with the terms and conditions in the said notices. Fifteen days after issuance of notice under Section 41A Cr.P.C. in Crime No.76 of 2022, the impugned detention order was passed invoking the draconian preventive detention law and the detenu was sent to jail. In Crime Nos.111 and 115 of 2021 and C.O.R.Nos.11, 38, 74 and 76 of 2022, the detenu was arrayed as an accused basing on the confession made by the co-accused in the respective crimes. The accusation against the detenu in the 3 Dr.SA,J & NTR,J W.P.No.17426 of 2022 said crimes at the most amounts to disturbance of law and order, but not public order. The offences alleged are not that grave, which disturb the public peace and tranquility. Since the offences alleged are under the Telangana Prohibition Act and the 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 Assistant Government Pleader for Home appearing for the respondents supported the impugned orders and submitted that the detenu is a 'bootlegger'. He is repeatedly indulging in the activities of possession, transportation and sale of illicitly distilled (I.D.) liquor and raw materials i.e., jaggery and alum, used for manufacturing I.D. liquor, in contravention of the provisions under the Telangana Prohibition Act and the Telangana Excise Act, despite the ban imposed on the sale of arrack and other illicitly distilled liquor from 01.10.1993. Further, he is also abetting commission of the said illegal activities and thus, his activities are directly causing 4 Dr.SA,J & NTR,J W.P.No.17426 of 2022 widespread danger to public order, health and tranquility in Garidepally Mandal and its surrounding areas. All the crimes relied on by the detaining authority amount to disturbance of public order at large. The series of crimes allegedly committed by the detenu were sufficient to cause a feeling of insecurity in the minds of the people 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 C.No.C1/645/2022, dated 31.03.2022, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.1250, General Administration (Spl. (Law & Order)) Department, dated 18.06.2022, 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 5 Dr.SA,J & NTR,J W.P.No.17426 of 2022 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 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 1 AIR 1966 SC 740 2 (1972) 3 SCC 831 6 Dr.SA,J & NTR,J W.P.No.17426 of 2022 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."
10. In the present case, the detaining authority, basing on nine crimes indicated above, has passed the impugned detention order, dated 31.03.2022. 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.
3 Judgment dated 22.06.2022 passed in Crl.A.No.908 of 2022 by Hon'ble Supreme Court of India.
4 2022 SCC Online SC 424 5 (2021) 2 Supreme Court Cases 415 7 Dr.SA,J & NTR,J W.P.No.17426 of 2022 Date of Date of C.O.R.No. Occurrence registration Offences Nature of FIR
1.Section 7(A) read 1. Cognizable/ with 8(e) of Bailable Prohibition Act 9/2021 of P&E Station, 04.03.2021 04.03.2021 Qty:
Huzurnagar
1) 10 ltrs. ID Liquor
2) 100 Kgs. Jaggery
3) 10 Kgs. Alum
1.Section 7(A) read 1. Cognizable/ with 8(e) of Bailable Prohibition Act 53/2021 of P&E Station, 06.08.2021 06.08.2021 Qty:
Huzurnagar
1) 5 ltrs. ID Liquor
2) 200 Kgs. Jaggery
3) 5 Kgs. Alum
1. Section 7(A) read
1. Cognizable/ with 8(e) of Bailable Prohibition Act 81/2021 of 2. Section 34(e) of P&E Station, 24.09.2021 24.09.2021 Excise Act 2.Cognizable/ Huzurnagar Non-bailable Qty:
1. 2 ltrs. ID liquor
2. 10 Kgs. Alum
1.Section 7(A) read 1. Cognizable/ with 8(e) of Bailable 111/2021 of Prohibition Act P&E Station, 30.11.2021 30.11.2021 Huzurnagar Qty:
1) 5 ltrs. ID Liquor
1.Section 7(A) read 1. Cognizable/ with 8(e) of Bailable 115/2021 of Prohibition Act P&E Station, 08.12.2021 09.12.2021 Huzurnagar Qty:
1) 12 ltrs. ID Liquor
1.Section 7(A) read 1. Cognizable/ with 8(e) of Bailable 11/2022 of Prohibition Act P&E Station, 25.01.2022 25.01.2022 Huzurnagar Qty:
1) 2 ltrs. ID Liquor 8 Dr.SA,J & NTR,J W.P.No.17426 of 2022
1.Section 7(A) read 1. Cognizable/ with 8(e) of Bailable 38/2022 of Prohibition Act P&E Station, 15.02.2022 15.02.2022 Huzurnagar Qty:
1) 20 ltrs. ID arrack
1.Section 7(A) read 1. Cognizable/ with 8(e) of Bailable Prohibition Act 74/2022 of P&E Station, 15.03.2022 16.03.2022 Qty:
Huzurnagar
1) 20 ltrs. ID Liquor
2) 25 Kgs. Jaggery
3) 5 Kgs. Alum
1.Section 7(A) read 1. Cognizable/ with 8(e) of Bailable Prohibition Act 76/2022 of P&E Station, 15.03.2022 15.03.2022 Qty:
Huzurnagar
1) 18 ltrs. ID Liquor
4) 20 Kgs. Jaggery
5) 4 Kgs. Alum
11. As seen from the material placed on record, the accusation against the detenu in the aforesaid crimes is that he is involved in the activities of possession, transportation and sale of I.D. liquor and raw materials i.e., jaggery and alum, used for manufacturing I.D. liquor. In Crime Nos.111 and 115 of 2021 and 11, 38, 74 and 76 of 2022, the detenu was arrayed as an accused basing on the confession made by the co-accused in the respective crimes. In all the said crimes, notice under Section 41A Cr.P.C. was issued to the detenu. The detenu is complying with the terms and conditions in the said notices. The Investigation Officer did not opine that arrest and remand of the detenu is necessary to prevent the detenu from 9 Dr.SA,J & NTR,J W.P.No.17426 of 2022 committing further similar offences. If the detenu violates any of the conditions imposed in the said notices, it is for the police concerned to arrest the detenu by recording the reasons in writing.
I.D. liquor would certainly damage the health of the consumers, but the said crimes 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". Moreover, criminal law was already set into motion against the detenu. Since the detenu has committed the offences punishable under the Telangana Prohibition Act and the Telangana Excise Act, the said crimes can be effectively dealt with under the provisions of the said special laws. The State is required to produce necessary evidence to seek conviction of the detenu in the cases registered against him. Under these circumstances, the conclusion reached by the detaining authority that the detenu would again indulge in similar prejudicial activities, unless he is prevented from doing so by an appropriate order of detention, is misconceived. 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. The same is impermissible and violates the rights of the detenu guaranteed under Article 21 of the Constitution of India.
10 Dr.SA,J & NTR,J W.P.No.17426 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 C.No.C1/645/2022, dated 31.03.2022, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.1250, General Administration (Spl. (Law & Order)) Department, dated 18.06.2022, 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 Peraboina Nagaraju, S/o. Kotaiah, at liberty forthwith, if he 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: 12.07.2022 MD