Telangana High Court
Mohd. Abdul Qayyum vs The State Of Telangana on 19 July, 2021
Author: Shameem Akther
Bench: A.Rajasheker Reddy, Shameem Akther
ARR, J & Dr. SAJ
W.P.No.7178 of 2021
1
THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
AND
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
WRIT PETITION No.7178 of 2021
ORDER:(Per Hon'ble Dr. Justice Shameem Akther) Mohd. Abdul Qayyum, the petitioner, has filed this Habeas Corpus petition on behalf of his nephew-Mohammed Abdul Wasei @ Wasi S/o. Mohd. Abdul Mannan, aged about 20 years, the detenu, challenging the detention order, dated 06.10.2020, passed by the respondent No.2-Commissioner of Police, Hyderabad City, and the subsequent confirmation order in G.O.Rt.No.1956, General Administration (Spl. (Law & Order)) Department, Government of Telangana, dated 17.12.2020, passed by the Principal Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana, whereby, the detenu was detained under Section 3(2) of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land-Grabbers, Spurious Seed offenders, Insecticide Offenders, Fertilizer Offenders, Food Adulteration Offenders, Fake Document offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders & White Collar or Financial Offenders Act, 1986 (for short "P.D. Act").
2. We have heard the submissions of Mr.Mohd. Islamuddin Ansari, learned counsel for the petitioner, Mr.T.Srikanth Reddy, learned Government Pleader for Home appearing on behalf of the learned ARR, J & Dr. SAJ 2 W.P.No.7178 of 2021 Additional Advocate General for the respondents and perused the record.
3. The learned counsel for the petitioner has vehemently contended that the impugned detention order is illegal, arbitrary, unconstitutional, improper, against the principles of natural justice and has been passed in a mechanical manner and without application of mind. The detenu is falsely implicated in the three criminal cases relied upon by the detaining authority for preventively detaining him. Admittedly, in all the three cases relied upon by the detaining authority, the detenu was granted bail by the Courts concerned. But, the detenu was again sent to judicial remand by invoking the draconian preventive detention laws. Already criminal law was set into motion against the detenu. Hence, there was no need to invoke the draconian preventive detention law against the detenu. Further, if the alleged activities of the detenu are said to be disturbing the communal harmony of the society, then the provisions of Telangana Prevention of Dangerous Activities of Communal Offenders Act, 1984, ought to have been invoked against the detenu. Further, the detenu had not committed similar offences after his release on bail in the three crimes relied by the detaining authority. Further, if there is any alleged violation of bail conditions by the detenu, nothing prevented the detaining authority to file an application before the Court concerned seeking cancellation of bail. Thus, there was no need to pass the impugned detention order against the detenu. Further, the subjective satisfaction reached by the detaining authority in passing the impugned detention order, is tainted. Further, the cases alleged against the detenu do not add up to "disturbing the public order".
ARR, J & Dr. SAJ 3 W.P.No.7178 of 2021 They are confined within the ambit and scope of the word "law and order". Since the offences alleged, as grave as they may be, are under the Penal Code, the detenu can certainly be tried and convicted under the Penal Code. Thus, there was no need for the detaining authority to invoke the draconian preventive detention laws. Hence, the impugned detention order tantamounts to colourable exercise of power. The detaining authority has to be extremely careful while passing the detention order, since the detention ipso facto adversely affects the fundamental right of personal liberty enjoyed by the people under Article 21 of the Constitution of India. Further, the Government, without considering the various legal aspects, confirmed the impugned detention order in a mechanical manner. Thus, the impugned detention order and the consequential confirmation order are legally unsustainable and ultimately, prayed to set aside the same and allow the writ petition as prayed for.
4. On the other hand, the learned Government Pleader for Home representing the respondents would contend that the detenu is a 'goonda' and he has been habitually indulging in offences of mischief by setting fire with an intention to destroy the Government/Public properties and also places of worship to hurt the religious sentiments, along with his associate, in an organized manner, in the limits of Hyderabad Police Commissionerate and thus creating large scale fear and panic among the people and thereby adversely affecting the public order. The detaining authority, having considered the entire material placed before it and having satisfied that the activities of the detenu are prejudicial to the maintenance of public order and also considering that three cases registered against the detenu under ARR, J & Dr. SAJ 4 W.P.No.7178 of 2021 ordinary criminal law has no deterrent effect in curbing his prejudicial activities, passed the impugned detention order. Further, in all the three cases relied upon by the detaining authority for detaining the detenu, the detenu got bail from the Courts concerned. Hence, in order to prevent the detenu from further indulging in such prejudicial activities, the impugned detention order is passed. The alleged illegal activities of the detenu pose a serious threat to the communal harmony of the society and would adversely affect the public order. All the mandatory provisions and the safeguards envisaged under the Constitution of India were strictly followed while passing the impugned detention order and hence, the impugned detention order does not suffer from illegality or impropriety. Further, the Government vide G.O.Rt.No.1956, General Administration (Spl. (Law & Order)), Government of Telangana, dated 17.12.2020, confirmed the impugned detention order. Therefore, the detaining authority was legally justified in passing the impugned detention order and ultimately, prayed to dismiss the writ petition.
5. In view of the above submissions made by both sides, the point that arises for determination in this Writ Petition is:
"Whether the impugned detention order, dated
06.10.2020, passed by the respondent No.2- Commissioner of Police, Hyderabad City, and the consequential confirmation order, dated 17.12.2020, passed by the Principal Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana, are liable to be set aside?"
ARR, J & Dr. SAJ 5 W.P.No.7178 of 2021
6. POINT: Briefly, the material on record reveals that by relying on three criminal cases registered against the detenu, i.e., Crime No.22/2020 of Kanchanbagh Police Station, Crime No.77/2020 of Chandrayangutta Police Station and Crime No.40/2020 of Madannapet Police Station, the respondent No.2-Commissioner of Police, Hyderabad City, passed the detention order, dated 06.10.2020. According to the respondent No.2, the detenu is a 'goonda'. He has committed offences of mischief by fire with an intention to destroy the Government/Public Properties and also places of worship to hurt the religious sentiments along with his associate in an organized manner in the limits of Hyderabad Police Commissionerate and thus creating large scale fear, terror and panic among the people and thereby adversely affecting the public order.
In all the three cases relied upon by the detaining authority, the detenu got bail from the Courts concerned. In order to prevent the detenu from committing similar type of offences, which are detrimental to the public order, the impugned detention order, dated 06.10.2020, was passed and the same was confirmed by the Government by order, dated 17.12.2020.
7. The material placed on record also reveals that the detenu-
Mohammed Abdul Wasei @ Wasi S/o. Mohd. Abdul, along with his associate committed offences of mischief by fire with an intention to destroy the Government/Public properties and also places of worship to hurt the religious sentiments, in an organized manner, in the limits of Hyderabad Police Commissionerate. The detaining authority relied on three cases for preventively detaining the detenu. We shall present them in a tabular column, the date of occurrence, the date of ARR, J & Dr. SAJ 6 W.P.No.7178 of 2021 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. Occurrence registration Offences Nature of FIR On the 22/2020 of intervening Section 435 of Cognizable/ Kanchanbagh Police night of 20.01.2020 IPC Bailable Station 19/20.01.202 0 On the Cognizable/Non-
77/2020 of Bailable
intervening Section 436 of
Chandrayangutta 11.02.2020
night of IPC
Police Station
11.02.2020
Sections 295A &
153A(2) IPC
On the Cognizable/
40/2020 of Sections 295A,
intervening Non-Bailable
Madannapet Police 14.03.2020 153A(2) and
night of
Station 436 of IPC
14.03.2020 Section 436 IPC
Cognizable/
Non-Bailable
8. In the first crime, i.e., Crime No.22/2020 of Kanchanbagh Police Station, it is alleged that on the intervening night of 19/20.01.2020, the detenu along with his associate-Syed Arshad, went to Midhani bus depot on Honda Activa scooter bearing No.AP 13 N 8292 by removing its number plate, wearing hand gloves, covering their faces with masks and carrying a tin containing petrol mixed with used engine oil and entered the bus depot by scaling over the compound wall. The associate of the detenu entered into one of the buses parked in the depot, poured petrol mixed with used engine oil on the seats and set it on fire, while the detenu was watching the movements of public in the vicinity of the scene of offence. Later the detenu and his associate fled away from the scene. The detenu and his associate were apprehended on 30.03.2020 and they voluntarily confessed to have committed the said offence and other offences.
Due to this incident, the complainant and the staff of Midhani Bus ARR, J & Dr. SAJ W.P.No.7178 of 2021 7 Depot got panicky and scared with the anti-social activities of the detenu and his associate, fearing damages to their properties.
9. In the second crime, i.e, Crime No.77/2020 of Chandrayangutta Police Station, it is alleged that on the intervening night of 10/11.2.2020, the detenu and his associate, decided to damage the Axis Bank ATM at Chandrayangutta and its adjacent ICICI Bank ATM. In pursuance of their plan, on 10.02.2020, the detenu and his associate filled petrol worth Rs.250/- in Honda Activa scooter at Bharath Petrol Pump, situated beside Prime Metro Function Hall, DRDL Road, Hyderabad. They also purchased used engine oil worth Rs.20/- from TS Bike Point mechanic shop, situated at C-Block, Babanagar, Hyderabad. Thereafter, the detenu and his associate drew petrol from the Honda Activa scooter at the detenu's house in 5 ltrs. plastic can and mixed it with used engine oil. On the intervening night of 10/11.02.2020, the detenu along with his associate went to the above said ATMs on Honda Activa scooter bearing No.AP 13 N 8292 carrying a can containing petrol mixed with used engine oil. The associate of the detenu-Syed Arshad, entered into the ATMs, poured the petrol mixed with used engine oil on those ATMs and the detenu set them on fire and thereafter, both fled away from the scene. The detenu and his associate were apprehended on 30.03.2020 and they voluntarily confessed to have committed the said offence and other offences. Due to this incident, the bank staff and the inhabitants of the locality got panicky due to mischievous activities of the detenu.
ARR, J & Dr. SAJ 8 W.P.No.7178 of 2021
10. In the third crime, i.e, Crime No.40/2020 of Madannapet Police Station, it is alleged that as there was no impact of the above two crimes, the detenu and his associate decided to commit another offence with a motive to create panic and terror among the general public in the Hyderabad city. Accordingly, the detenu and his associate planned to make petrol bombs of similar type which were used in the communal riots in Delhi and practiced making petrol bombs by watching Youtube and planned to use them to damage Hindu Temples with an intention to create hatred between different communities. As per their plan, the detenu and his associate fetched petrol of Rs.250/- in Honda Activa Scooter bearing No. AP 11 AJ 1931 belonging to the detenu from a petrol bunk, situated near Prime Metro Function Hall, DRDL Road, Hyderabad. Later, they purchased thermocol sheet of Rs.50/-, adhesive tape of Rs.30/-, white spray paint and empty beer bottles from a scrap shop and made 'MOLOTOV COCK TAIL PETROL BOMBS' and sealed them with waste cotton clothes at the house of the associate of the detenu with an intention to damage Hindu temples. Accordingly, on the intervening night of 04/05.03.2020, the detenu and his associate removed the number plate of the aforesaid Honda Activa Scooter and went to Shivalayam Temple, Rakshapuram, Santoshnagar, Hyderabad, on the said Scooter by wearing hand gloves and covering their faces with masks and also carrying petrol bombs made by them. Both of them threw the petrol bombs towards the temple, but due to heavy weight, the said bombs did not fall inside the temple and explode. On seeing public movement near the temple, the detenu and his associate fled away from the scene. In ARR, J & Dr. SAJ 9 W.P.No.7178 of 2021 the said crime, it is also alleged that again, on the intervening night of 13/14.03.2020, the detenu and his associate-Syed Arshad, removed the number plate of aforesaid Honda Activa scooter and went to Nalla Pochamma Temple, Madannapet, on the said vehicle, by wearing gloves, covering their faces with masks and carrying petrol bombs. After reaching the said place, on seeing no public movement, the detenu lit fire and thrown two petrol bombs and his associate had thrown one petrol bomb on said Nalla Pochamma temple and thereafter, they fled away from the scene. But the said bombs did not explode.
11. The acts of the detenu show extreme propensity of wantonly destroying the public properties and likely to trigger communal tension in the area, which would create a sense of fear and insecurity among the people in the localities concerned and such activities, affecting the public at large, are certainly prejudicial to the maintenance of public order. Further, the material placed on record reveals that the detenu was released on bail in all the three cases relied upon by the detaining authority. Under these circumstances, the submission of the respondents that there is imminent possibility of the detenu further indulging in similar offences which would be detrimental to public order unless he is prevented from doing so by an appropriate order of detention, cannot be brushed aside.
12. Here, it is apt to state that communal violence leaves a long impact on the society. It is a dangerous and frightful phenomenon, which terrorizes the society. The acts of communal violence, by nature, are such that they not only end up in loss of lives and ARR, J & Dr. SAJ 10 W.P.No.7178 of 2021 property, but it also divides and polarizes the society. It is a form of violence which perpetrates across communal lines, the violent parties feel solidarity for their respective groups, and victims are chosen based upon group membership. Thus, any act which incites communal violence will definitely disturb public tranquility. The situation created by the communal offenders cannot be viewed lightly and needs to be dealt with sternly. In the instant case, a bare perusal of the cases relied upon by the detaining authority makes it clear that the detenu is inciting communal hatred and damage to public property, which affects the public at large and disturbs the even tempo of the life of the community. This ground, thus, clearly relates to disturbance of public order. When an incident is said to be creating communal tension and the authorities are apprehensive of the breaking out of communal riot, which would adversely affect the public order, such incident would be sufficient and would afford justification for recording subjective satisfaction for detention of a person, in order to prevent him from indulging in such activities.
13. Further, in the case of Madhu Limaye Vs. Sub-Divisional Magistrate1. The Hon'ble Apex Court held as follows:
"The acts which disturb public tranquility or are breaches of the peace should not be given a narrow meaning, but should be given a liberal interpretation. For the expression 'in the interest of public order' is very wide amplitude."1
(1970) 3 SCC 746 ARR, J & Dr. SAJ 11 W.P.No.7178 of 2021
14. In the case of Commissioner of Police & Others Vs. C.Anita (Smt.)2, the Hon'ble Apex Court examined the issue of "public order" and "law and order" and observed as follows:
"The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression "law and order" is wider in scope inasmuch as contravention of law always affects order, "public order" has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of "law and order" and "public order" is one of the degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of the public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting "public order" from that concerning "law and order". The question to ask is: "Does it lead to disturbance of the current 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?" This question has to be faced in every case on its facts."
15. As per the clause (g) of Section 2 of the P.D.Act, a "goonda" means a person, who either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code.
16. The essential concept of preventive detention is not to punish a person for something he has done, but to prevent him from doing it. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel in between prosecution in a Court of law and a detention 2 (2004) 7 SCC 467 ARR, J & Dr. SAJ 12 W.P.No.7178 of 2021 order under the P.D.Act. One is a punitive action and the other is a preventive act. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution, even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be made before or during prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution.
17. In the instant case, having regard to the modus operandi of the detenu in the three crimes registered against him in quick succession, the respondent No.2, in our considered view, has rightly held that detenu is a 'goonda' under clause (g) of Section 2 of Act 1 of 1986, and recorded his satisfaction that the activities of the detenu are prejudicial to the maintenance of public order, and that ordinary law may not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities. The material relied upon and circumstances show that the subjective satisfaction of the detaining authority is not tainted or illegal on any account. Under these circumstances, the detaining authority is justified in passing the impugned detention order. We do not see any merit in this Writ Petition and as such, it is liable to be dismissed.
ARR, J & Dr. SAJ 13 W.P.No.7178 of 2021
18. Accordingly, the Writ Petition is dismissed. No order as to costs.
Miscellaneous petitions pending, if any, in this Writ Petition, shall stand closed.
____________________ A. RAJASHEKER REDDY, J ____________________ Dr. SHAMEEM AKTHER, J 19th July, 2021 scs