Merugu Sunitha , Saritha v. The State Of Telangana

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.2451 of 2019 Date: 27.06.2019 Between:

Merugu Sunitha @ Saritha

...Petitioner

And The State of Telangana, Rep.by the Principal Secretary to Government, General Administration Department (POLL), Secretariat, Hyderabad and others.

...Respondents

Counsel for the petitioner : Mr. A. Prabhakar Rao Counsel for the respondents: The Advocate General The Court made the following:

ORDER: (Per the Hon'ble Dr. Justice Shammem Akther) Alleging that her husband, Mr. Merugu Sadaiah @ Mukku Sadi, S/o. Shivaiah, aged 39 years, is involved in a crime of peddling Narcotic Drugs among innocent people in the limits of Ramagundam Police Commissionerate, registered in the year 2018, her husband is being preventively detained by order dated 29.11.2018 passed by the Commissioner of Police, Ramagundam Police Commissionerate, the respondent No.2, and confirmed by order dated 18.01.2019 by the Principal Secretary to Government, the respondent No.1, the unfortunate wife, Merugu Sunitha @ Saritha, 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 one recent criminal case registered against the detenu in the year 2018 (Crime No.60 of 2018 of Anthargoan Police Station) with respect to peddling of Narcotic Drugs among innocent people in the limits of Ramagundam Police Commissionerate and endangering the lives of youth and innocent people and causing irreparable damage to the body parts including central nervous system and thereby crippling the mental and physical health of people addicted to drugs, the Commissioner of Police, Ramagundam Police Commissionerate, the respondent No.2, passed the detention order dated 29.11.2018. According to the respondent No.2, the detenu was involved in three cases of

peddling narcotic drugs, registered in the years 2015, 2016 and 2018. But, merely relying on only one crime allegedly committed in the year 2018 (Crime No.60 of 2018 of Anthargoan Police Station), the detention order was passed. Subsequently, by order dated 18.01.2019, the detention order was confirmed by the respondent No.1. Hence, this petition before this Court. Mr. A. Prabhakar Rao, the learned counsel for the petitioner, has raised the following contentions before this Court:

Firstly, relying only on one case registered against the detenu in the year 2018, the impugned detention order is passed.

Secondly, such case can easily be tackled by the criminal justice system by holding a criminal trial. Therefore, the alleged case basing on which the detention order was passed would 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 case 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, 1 AIR 1966 SC 740

Fertiliser Offenders, Food Adulteration Offenders, Fake 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 the alleged crime has created a panic and have "disturbed the public order". Thirdly, 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 29.11.2018, by order dated 18.01.2019, 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 alleged crime relied by the respondent No.2, the detenu had earlier filed a bail application and the same was dismissed by the Court concerned, vide order, dated 08.08.2018, passed in

Crl.M.P.No.412 of 2018. The second bail application of the detenu (Crl.M.P.No.474 of 2018 filed on 13.08.2018) in the alleged crime relied by the respondent No.2 is 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 peddling narcotic drugs in the limits of police stations under Ramagundam Police Commissionerate, duly endangering the lives of youth and innocent people and causing irreparable loss to the mental and physical health of the people addicted to drugs.

Therefore, the crime alleged committed by the detenu has 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 29.11.2018, passed by the respondent No.2 and the confirmation order, dated 18.01.2019, passed by the respondent No.1, are liable to be set aside?

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 undoubtedly takes in all of them. Public order if disturbed, 2 (1972) 3 SCC 831

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 respondent No.2 had relied on only one case registered in the year 2018 for preventively detaining the detenu. We shall present in a tabular column 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 registration of FIR Offences Nature Crime No.

Date of Occurrence 60/2018 of Anthargoan PS 24.06.2018 24.06.2018 Section 8(c) and 20(b) r/w 43 of NDPS Act Non-bailable/ cognizable A perusal of the impugned detention order reveals that the detenu is involved in three criminal cases, i.e., Crime No.72 of 2015, Crime No.104 of 2016 and Crime No.60 of 2018. In

Crime No.72 of 2015, the detenu was granted bail by the learned I Additional Sessions Judge, Karimnagar, vide order, dated 10.09.2015, passed in Crl.M.P.No.346 of 2015. In Crime No.104 of 2016, the detenu was granted bail by this Court, vide order, dated 03.11.2016, passed in Crl.P.No.15345 of 2016. The detaining authority has taken only one case registered against the detenu in the year 2018 (Crime No.60/2018) as the basis for preventively detaining him. As already stated supra, the first bail petition of the detenu in the said crime was dismissed and the second bail petition is pending consideration by the Court concerned. The said crime is for the offence punishable under Section 8(c) and 20(b) read with 43 of NDPS Act. These type of cases 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.

order to control petty offences. In case the use of preventive detention 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 29.11.2018, 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 29.11.2018, passed by respondent No.2, and the confirmation order dated 18.01.2019, passed by respondent No.1 are set aside. The respondents are directed to set the detenu, namely, Mr. Merugu Sadaiah @ Mukku Sadi, S/o Shivaiah, 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