Kethavath Shirisha v. The State Of Telangana
HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAO (Special Original Jurisdiction) FRIDAY ,THE TWENTY NINTH DAY OF APRIL TWO THOUSAND AND TWENTY TWO PRESENT THE HON'BLE DR. JUSTICE SHAMEEM AKTHER AND THE HON'BLE SMT JUSTICE JUWADI SRIDEVI WRIT PETITION NO: 3844 OF 2022 Between:
@ Harsha @ Sharah, Aged 23 years, Occ Apartment, Prashanthi Nagar, Kukatpally, Kethavath Shirisha, W/o Shaik lVlasthan Housewife R/o Flat No 204, Srinivasa Medchal District.
,..PETITIONER AND
1. The State of Telangana, Rep. by its Prl. Secretary Office at Secretariat Buildings, Hyderabad, Telangana.
2. The CohmiSsioner of Police and Addl. District lvlagistrate, Rachakonda Commissionerate, Rachakonda, Hyderabad
3. The Superintendent of Prisons, Central Prison, Cherlapally, l\/edchal District. ...RESPONDENTS Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate writ, order or direction more particularly one in the nature of Writ Habeas Carpus directing the respondents to produce the detenue viz., Shaik Masthan @ Harsha @ Sharah S/o Kalesha, Aged 26 years, who presently detained in Central Prison, Cherlapally before this Hon'ble Court and release him forthwith after declaring the order of detention passed by the 2nd respondent dated 26-06-2021 vide No.67i PD CELL/CCRBlRCKDl202l and consequential order passed by the 1st respondent in G.O.Rt.No.2779. Counsel for the Petitioner : SRI E. RAMESH CHANDRA GOUD Counsel for the Respondents: THE ADDITIONAL ADVOCATE GENERAL REP. BY AGP FOR HOME SRI G, MALLA REDDY The Court made the following: ORDER
THE HON,BLE DT. JUSTICE SHAMEEM AKTHER AND THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI WRIT PETITIoN No.3844 OF 2022 ORD ER: (Per Hon'ble Dr. lustice Shameem Akther) Mrs. Kethavath Shirisha, the petitioner, has filed this Habeas Corpus petition, on behalf of Shaik Masthan @ Harsha @ Sharah, S/o. Kalesha , lhe detenu, challenging the detention order vide No.67lPD CELL/CCRB/RCKD|2}2L, dated 26.06.2021, passed by the respondent No.2, whereby, the detenu was detained under Section 3(2) of the Telangana Preventive Detention Act, 1986 (Act 1 of 1986), and the consequential confirmation order vide G.O.Rt.No.2779, General Administration (Spl. (Law & Order)) Department, Government of Telangana, dated t6.12.202L. 2, Heard the learned counsel for petitioner, learned Assistant Government Pleader for Home for the respondents and perused the record
3. The case of the petitioner is that basing on two crimes registered against the defenu viz., Crime Nos.54 of 2027 of Kukatpally Police Station, Rachakonda Commissionerate, and 237 of 2021 of Chaitanyapuri Police Station, Rachakonda Coqmissionerate, the respondent No.2 passed the impugned
l Dr.SA,J & JS,J W.P.No.3844 of 2022 detention order, dated 26.06.2021. According to respondent No.
2, the detenu is an 'Immoral Traffic Offender', and that he, along with his associates, has been trafficking girls/women, even minor girls, from West Bengal, Karnataka States and other parts of Telangana for the sake of prostitution through his agents and has been running prostitution business with the said girls in the limits of Rachakonda and Cyberabad Police Commissionerates; Since the year 2020, he has been indulging in human trafficking and running prostitution with them by accommodating them in lodges on payments; He has been procuring male customers through online and known contacts and allowing them into lodges for having sexual pleasures with girls/women for pecuniary benefits to make easy money in short period; He also supplies girls to the brothel organizers on payments; The immoral activities of the detenu lead to social unrest and widespread health hazards, thereby endangering public health and are thus prejudicial to the maintenance of public order.
Subsequently, the impugned detention order was confirmed by the Government, vide G.O. Rt. No.2779, dated 76.72.2027.
4, Learned counsel for the petitioner would contend that the impugned detention order has been passed in a mechanica I -/
I Dr.SA.J & JS.J w.P.\o 384.r of 2022 manner and without application of mind. Already criminal law was set into motion against the defenu. Further, the detenu was granted conditional bail by the Courts concerned in both the crimes relied by the detaining authority and he has been complying the bail conditions. But he was again sent to jail by invoking the draconian preventive detention laws on the apprehension that the detenu is not amenable to ordinary law and there is imminent possibility of his indulging in similar offences, which is unjustified. The alleged crimes do not add up to "disturbing the public order" and they are confined within the ambit and scope of the word "law and order".
Since the offences alleged are under the Indian penal Code and The Immoral Traffic (Prevention) Act, 1956 (for short, 'PITA'), the detenu can certainly be tried and convicted under the 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 detenu. Hence, the impugned orders tantamount to colourable exercise of power. The impugned orders are legally unsustainable and ultimately, prayed to allow the Writ Petition, as prayed for.
5.
On the other hand, the learned Assistant Government Plead\r for Home appearing For the respondents supported the
-+ Dr SA,J & JS.J w.P No.384'+ of 2022 submitted that the detenu is an 'Immoral impugned orders and has been lndulglng in trafficking of Traffic Offender" He women/girls for the sake of prostitution and running prostitution business to lead luxurious life in an organized fashlon In the police station limits of Rachakonda Commissionerate and thus acting in a manner prejudicial to the maintenance of public order' The immoral activities of the detenu not only endanger the family system, but also harmful to the inhabitants of the locality' creating embarrassing situation to the families and youth living in RachakondaPoliceCommissionerate.Further,theimmoral activities of the detenu are leading to social unrest causing widespread health hazards.
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Dr.SA,J & JS,J W P.No.3844 of 2022 6.
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 No.67/pD CELL/CCRB/RCKD/2021, dated 26.06.2021, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.2779, General Administration (Spl. (Law & Order)) Department, Government of Telangana, dated 16.12.2021, are tiable to be set aside?"
POINT
7. 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 porryr under the Act, )
DT.SA J & JS,J w.P.No.3844 of2022 8.
In Ram Manohar Lohia v' State of Biharl' 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.
g.InKanuBiswasv.stateofWestBengal2,theHon,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'
10. In the present case, the detaining authority' basing on two crimes indicated above, has passed the impugned detention order' dated 26.06.2021 We shall Present them in a tabular form the , the date of registration of FIR' the offence date of occurrence its nature, such as bailable/non-bailable or complained of and co\za ble/non-cog nizable'
' ArR 1966 sc 740 ' ltg72) 3 scc 831
, Date of registration Of FIR Crime No.
Date of Occurrence Offe n ce s Natu re Section 3 70, 370(A)(2) of IPC:
Cognizable/ Non Baila ble Sections 3,4 & 5 of PITA :
Cognizable Section 3 70 (A)(2 ) of IPC and 3. 4 & 5 of PITA 5412021 or Kukatpally PS 20.47.2027 24.41.2427 ] Section 370, 370(4) of I PC:
Cognizable/ Non Baila ble Sections 3,4 & 5 of PITA :
Cognizable 237 of 2O2r of Chaitanyapuri PS r5.o4.2027 t5.o4.2021 Section 3 70 (A) of IPCand3,4&5 Of PITA
11. As seen From the material placed on record, the two crimes relied by the detaining authority for preventively detaining the detenu relates to immoral trafficking. In the first crime, i.e., Crime No.54 of 2021, the detenu was arrested and remanded to judicial custody on 21..0t.2021. Thereafter, the detenu moved bail petition before the Court concerned and the Court concerned, vide order, dated 15.03.2021,9ranted bail to lhe detenu by imposing certain conditions and he was released from judicial custody. Subsequently, the detenu was arrested on 10.06.2021 in connection with the second crime, i.e., Crime No.237 of 2027. Later, the detenu moved bail petition in the said crime also and he was granted conditional bail by the Court concerned vide order, dated 18.06.202t, and he was released from judicial custody on
Dr.SA,J & JS,J w P.No.3844 oI2022 21.06.2021. The condition imposed in the bail order in Crime No.54 of 2021 is that the detenu shall appear before the concerned SHO on every Sunday until filing of charge-sheet. The condition imposed in the bail order in Crime No.237 of 2O2I is that the detenu shall appear before the concerned SHO on every Monday till filing of charge-sheet. Under these circumstances, the apprehension of the detaining authority that the detenu is not amenable to ordinary law and that there is imminent possibility of his indulging in similar prejudicial activities again, which would be prejudicial to maintenance of public order, unless he is prevented from doing so by an appropriate order of detention, is highly misplaced.
It is the bounden duty of the police to inform the learned Public Prosecutor about the conduct of the detenu and to hand over the entire case record available against the defenu. The police are supposed to be vigilant in collecting the whole data against the detenu and furnish the same to the public Prosecutor/Additional Public Prosecutor to defeat the bail application/s of the detenu. Even assuming that the bail conditions are violated by the detenu and he is involved in further crimes, noting prevents the prosecution to apprise the same to the concerned Court and seek cancellation of bail. By virtue of the conditions imposed in the bail orders, lhe detenu would be under -.,.
l t, surveillance of the Court and the police. Moreover, criminal law was already set into motion against lhe detenu. Since the detenu has allegedly committed offences punishable under the Indian Penal Code and PITA, the said crime can be effectively dealt with under the provisions of the Penal Code and the special law and there was no need for the detaining authority to invoke draconian preventive detention laws. The detaining authority cannot be permitted to subvert, supplant or substitute the punitive law of land, by ready resort to preventive detention. L2. Grave as the offences may be, they relate to immoral trafficking. So, no inference of disturbance of public order can be \ \ drawn. The subject cases can certainly be tried under the Penal Code and special law. Thus, the cases relied by the detaining authority do not fall within the ambit of the words "public order"' Instead, it falls within the scope of the words "law and order"' Hence, there was no need for the detaining authority to pass the impugned detention order.
13. For the foregoing reasons, the impugned orders are legally unsustainable and are liable to be set aside' L4. In the result, the Writ Petition is allowed. The impugned detention order vide No:67lPD CELL/CCRB/RCKD/2021, dated
Dr.SA.J & JS,J W.P.No.3844 of 2022 26.06.202t, passed by the respondent No.2, and the consequential confirmation order vide G.0.Rt.No.2779, General Administration (Spl. (Law & Order)) Department, dated 76.72.2021, passed by the principal Secretary to Gevernment, General Administration (Spl. (Law & Order)) Department, Government of Telangana, are hereby set aside. The respondents are directed to set the detenu, namely Shaik Masthan @ Harsha @ Sharah, S/o. Kalesha, at liberty forthwith, if he is no longer required in any other criminal case.
Miscellaneous Petitions, if any, pending in this Writ petition shall stand closed. There shall be no order as to costs. I SD/.N.CHNDRA SEKHAR RAO ASSISTANT.REGISTRAR sed#ru oFFrcER To, //TRUE COPY// \ The Principal Secretary, State of Telangana, Office at Secretariat Buildings, Hyderabad, Telangana.
The Commissioner of Police and Addl. District Magistrate, Rachakonda Commissionerate, Rachakonda, Hyderabad.
The Superintendent of Prisons, Central Prison, Cherlapally, Medchal District. One CC to Sri E. Ramesh Chandra Goud, Advocate [OPUC] Two CCs to The Additional Advocate General, High Court for the State of Telangana at Hyderabad. [OUT] Two CCs to GP for Home, High Court for the State of Telangana at Hyderabad. [OUT] Two CD Copies One Spare Copy.
aJ CHR BS
HIGH COURT DATED:2910412022 T S r e (:
( ( ,-+ il 2[22 J Do JUL )) \==*pz J
ORDER
W.P.No.3844 of 2022 ALLOWING THE WRIT PETITION WITHOUT COSTS ( '\\ ) n \1/