Ram Singh, v. The State Of Telangana

HI GH COURT FOR THE STATE OF TELANGANA THE HON'BLE THE CHI EF JUSTI CE RAGHVENDRA SI NGH CHAUHAN AND THE HON'BLE Dr . JUSTI CE SHAMEEM AKTHER W r it Pet it ion No.3 6 2 4 of 2 0 1 9 Date: 11.07.2019 Between:

Ram Singh

...Petitioner

And The State of Telangana, Rep by its Principal Secretary, General Administration (Spl. (Law and Order) Dept., Secretariat, Hyderabad and others

...Respondents

Counsel for the petitioner : Sri P. Vishnuvardhana Reddy Counsel for the respondents : The Advocate General Th e Cou r t m ade t h e follow in g:

ORDER: (Per the Hon'ble Dr. Justice Shameem Akther) Sri Ram Singh, the petitioner, has filed this present petition on behalf of his brother, Radhe Shyam, the detenu, challenging the detention order, dated 29.11.2018, passed by the Commissioner of Police, Cyberabad Police Commissionerate, the respondent No.2, and the confirmation order dated 07.02.2019 passed by the Principal Secretary to Government (POLL), General Administration (Spl. (Law and Order) Department, Government of Telangana, the respondent No.1.

Heard the learned counsel for the parties, and perused the impugned orders.

Briefly, the facts of the case are that by relying on the four recent cases registered against the detenu during the year 2018, the Commissioner of Police, Cyberabad Police Commissionerate, the respondent No.2, passed the detention order dated 29.11.2018. According to the respondent No.2, the detenu is involved in as many as six offences of cheating and criminal breach of trust. But, relying on four recent cases registered against the detenu in the year 2018, the detention order is passed. According to the respondent No.2, the detenu is a 'White Collar Offender' and he has been habitually and continuously engaging himself in cheating the innocent youth, illiterate and retired people with his gullible words under the guise of joining as a member in Multi Level Marketing Binary Scheme in Future Maker Life Care Global Marketing Private Limited. The detenu induced them to join in the scheme by paying money and lured them that they will get huge

commission if they join as members. The detenu attracted payments of about 3000 crores of rupees from about 60 lakh members/ new joiners by making them to deposit money in various bank accounts held in the name of company and also his personal accounts and ultimately cheated them. Subsequently, by order dated 07.02.2019, the detention order was confirmed by the Principal Secretary to Government (POLL), General Administration (Spl. (Law and Order) Department, Government of Telangana, the respondent No.1. Hence, this writ petition before this Court. Sri P. Vishnuvardhana Reddy, learned counsel for the petitioner, has raised the following contentions before this Court: Firstly, that relying only on the four cases registered against the detenu in the year 2018, the detention order is passed.

Secondly, the alleged cases do not add up to "disturbing the public order". 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 Prize Chits & Money Circulation Scheme (Banning) Act, the detenu can certainly be tried and convicted under the Penal Code and the said Act. Thus, there was no need for the detaining authority to invoke the draconian preventive detention laws. Hence, the impugned order tantamount to the colourable exercise of power. Thus, the impugned orders are legally unsustainable.

On the other hand, Mr. S. Sharath, the learned Special Government Pleader, pleads that out of the four cases relied by the detaining authority, the detenu managed to get bail in two cases

from the Court concerned. The series of crimes allegedly committed by him were sufficient to cause a feeling of insecurity in the minds of the people at large. Since the modus of committing the crime was cheating and criminal breach of trust, it has created sufficient panic in the minds of the general public. Therefore, the detaining authority was legally justified in passing the impugned orders. Hence, the learned Government Pleader has supported the impugned orders.

In view of the submissions made by both the sides, the point that arises for determination in this Writ Petition is: " W h et h er t h e det en t ion or der , dat ed 2 9 .1 1 .2 0 1 8 , passed by t h e Com m ission er of Police, Cy ber abad Police Com m ission er at e, t h e r espon den t No.2 an d t h e con fir m at ion or der , dat ed 0 7 .0 2 .2 0 1 9 , passed by t h e Pr in cipal Secr et ar y t o Gov er n m en t ( POLL) , Gen er al Adm in ist r at ion ( Spl. ( Law an d Or der ) Depar t m en t , Gover n m en t of Telan gan a, t h e r espon den t No.1 , ar e liable t o be set aside?" POI NT:

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 which are committed against a particular individual fall within the ambit of "law and order". It is only when the public at large is adversely affected by the criminal activities of a person, is the conduct of a person 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. For the invoking of such law adversely effects the fundamental right of personal liberty, which is protected and promoted by Article 21 of the Constitution of India. Hence, according to the Apex Court, the detaining authority should be wary of invoking the immense power under the Act. In the case of Ram Man oh ar Loh ia v. St at e of Bih ar 1, 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, 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 case of Kan u Bisw as v. St at e of W est Ben gal 2, 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 the instant case, the detention authority relied on four cases registered against the detenu vide Crime Nos.710/ 2018, 541/ 2018, 768/ 2018 and 643/ 2018. We shall present them 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. 2 (1972) 3 SCC 831

Dat e of r egist r at i on of FI R Dat e of Occu r r en ce Sl.

No.

Cr im e No.

Offen ces Nat u r e Section 420 of IPC :

Cognizable/ Section 420 of IPC and Sections 4, 5, 6 r/ w 3, 2(c) of Prize Chits & Money Circulation Scheme (Banning) Act and Section 25(1B) of Arms Act.

NonBailable Sections 4, 5, 6 r/ w 3, 2(c) of Prize Chits & Money Circulation Scheme (Banning) Act and Section 25(1B) of Arms Act :

Cognizable 1.

710/ 2018 of Kukatpally PS 27.08.2018 30.08.2018 Section 420 of IPC :

Cognizable/ Section 420 of IPC and Sections 4, 5, 6 r/ w 3 of Prize Chits & Money Circulation Scheme (Banning) Act.

NonBailable Sections 4, 5, 6 r/ w 3 of Prize Chits & Money Circulation Scheme (Banning) Act :

Cognizable 2.

541/ 2018 of Chandanagar PS Prior to 04.09.2018 04.09.2018 Section 420 of IPC :

Cognizable/ Section 420 of IPC and Sections 4, 5, 6 r/ w 3, 2(c) of Prize Chits & Money Circulation Scheme (Banning) Act NonBailable Sections 4, 5, 6 r/ w 3, 2(c) of Prize Chits & Money Circulation Scheme (Banning) Act :

Cognizable 3.

768/ 2018 of Mailardevpally PS Prior to 14.09.2019 14.09.2019 Sections 406 & 420 :

Cognizable/ Section 420 & 406 r/ w 34 of IPC and Sections 4, 4.

643/ 2018 of Ramachandrapura m Ps Prior to 15.10.2018 15.10.2018 Non-

Bailable Sections 4, 5, 6 r/ w 3 of Prize Chits & Money Circulation Scheme (Banning) Act.

5, 6 r/ w 3 of Prize Chits & Money Circulation Scheme (Banning) Act :

Cognizable A perusal of the detention order reveals that the detenu moved bail petitions in Crime Nos.710/ 2018 and 541/ 2018 and the Court concerned granted bail to the detenu in both the cases. Further, in Crime No.768/ 2018, the detenu moved a Quash Petition before this Court vide Criminal Petition No.10729 of 2018 and this Court disposed of the said Quash Petition directing the SHO Mailardevpally to follow the procedure contemplated under Section 41A of Cr.P.C. and to follow the guidelines laid down by the Apex Court in Arnesh Kumar Vs. State of Bihar (2014 (8) Scale 250). Later, the detenu moved a bail petition in Crime No.643/ 2018 and the same is pending consideration before the Court concerned.

However, the apprehension of the detaining authority that since the detenu was granted bail in two crimes, there is every possibility of granting bail in Crime No.643/ 2018 is highly misplaced. It is the bounden duty of the Police to inform the learned Public Prosecutor about the conduct of an accused and to handover the history-sheet of the accused. If the Police were vigilant enough to collect the data on the alleged offenders, and to furnish the relevant information to the learned Public Prosecutors, the same could be placed by the learned Public Prosecutors before the concerned Court.

measures to inform the Public Prosecutor about the criminal history of the offender. For the inaction of the Police, the detaining authority cannot be permitted to invoke the preventive detention laws, in order to breach the liberty of an individual. Grave as the offences may be, they relate to cheating, criminal breach of trust and offences under Prize Chits and Money Circulation Scheme (Banning) Act. So, no inference of disturbance of public order can be drawn. These cases can be tried under the normal criminal law. Hence, there was no need for the detaining authority to pass the detention order.

Even while passing the confirmation order dated 07.02.2019, the Principal Secretary to Government (POLL), General Administration (Spl (Law and Order) Department, Government of Telangana, the respondent No.1, has failed to notice that the detenu continues to languish as under-trial in the jail. Once the detenu was already confined, the question of confirming the detention order would not even arise.

Therefore, for the reasons stated above, the impugned orders are legally unsustainable.

In the result, the Writ Petition is allowed. The impugned detention order dated 29.11.2018 passed by the respondent No.2 and the confirmation order dated 07.02.2019 passed by the respondent No.1 are hereby set aside. The respondents are directed to set the detenu, namely, Radhe Shyam, S/ o. Nathuram, 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 SI NGH CHAUHAN, HCJ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dr . SHAMEEM AKTHER, J 11th July, 2019 Bvv