Shaik Saluddin 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.6 2 2 8 of 2 0 1 9 Date: 18.07.2019 Between:

Shaik Saluddin

...Petitioner

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

...Respondents

Counsel for the Petitioner : Sri B. Vijaysen Reddy Counsel for the respondents : Sri S. Sharat, Spl. G.P. Sri S. Sharath, Spl. G.P., 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 Shaik Saluddin, the petitioner, has filed this present petition on behalf of his natural brother-Shaik Shabbeer, S/ o. Shaik Moosa, aged 30 years, the detenu, challenging the detention order dated 25.01.2019 passed by the Collector and District Magistrate, Adilabad District, the respondent No.2, and the confirmation order dated 16.03.2019 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 six recent cases registered against the detenu during the years 2018 and 2019, the Collector and District Magistrate, Adilabad District, the respondent No.2, passed the detention order dated 25.01.2019. According to the respondent No.2, the detenu was involved in as many as twenty one forest offences in Adilabad District. But, merely relying on the six recent cases registered against the detenu during the years 2018 and 2019, the detention order was passed. According to the respondent No.2, the detenu is a 'Forest Offender' and he has been indulging in series of offences of cutting of teakwood trees in Government reserved forest of Adilabad and smuggling of teakwood to Nizamabad and other places for pecuniary gains, thereby causing great loss to the national wealth and creating environment imbalance. Subsequently, by order dated 16.03.2019, the detention order was confirmed by the Principal Secretary to Government

(POLL), General Administration (Spl (Law and Order) Department, Government of Telangana, respondent No.1. Hence, this writ petition before this Court.

Sri B. Vijaysen Reddy, the learned counsel for the petitioner, has raised the following contentions before this Court: Firstly, relying only on the six recent cases registered against the detenu during the years 2018 and 2019, the detention order is passed.

Secondly, curiously, all the cases registered against the detenu in the years 2018 and 2019 relate to the forest offences and theft. Thirdly, such cases can easily be tackled by the criminal justice system by holding a criminal trial. Therefore, all these cases fall within the ambit of "law and order problem". Relying on the case of Ram Man oh ar Loh ia v. St at e of Bih ar 1, learned counsel has pleaded that a distinction has to be maintained between "a law and order problem" and "a public order problem".

Since the cases 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, 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.

the detenu is patently illegal. Hence, the detaining authority is unjustified in claiming that these cases have created a panic and have "disturbed the public order".

Fourthly, 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 25.01.2019, the respondent No.1 has not applied his mind to the facts and circumstances of the case. Instead, the confirmation order dated 16.03.2019 has been passed in a mechanical manner. Admittedly, in the present case, the bail application moved by the petitioner in Crime No.138/ 2018 was dismissed 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.S.Sharath, the learned Special Government Pleader, submits that the nature of offences allegedly committed by the detenu is sufficient to cause a feeling of insecurity in the minds of the people at large. Since the modus of committing the crimes was cutting of teakwood from the trees in Government reserve forest and smuggling of teakwood, it had 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 5 .0 1 .2 0 1 9 , passed by t h e r espon den t No.2 an d t h e con fir m at ion or der , dat ed 1 6 .0 3 .2 0 1 9 , passed by 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, the conduct of a person is 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 2, 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:

2 AIR 1966 SC 740

"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 3, the Supreme Court has opined as under:

3 (1972) 3 SCC 831

"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 present case, the detaining authority relied on six cases for preventively detaining the detenu vide POR Nos.16/ 08, 20/ 08, 15/ 05 and Crime Nos.268/ 2018, 138/ 2018 and 9/ 2019. 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. Sl.

No.

Cr im e No.

Dat e of Occu r r en ce Dat e of r egist r at ion of FI R Offen ces Nat u r e Sections 20, 29 & 44 of TS Forest Act and Sections 378 & 379 of IPC POR No.

16/ 08 of FRO, Neradigonda Cognizable/ Non-Bailable 07.09.2018 07.09.2018 1.

Sections 20, 29 & 44 POR No.

20/ 08 of FRO, Neradigonda Cognizable/ Non-Bailable 12.11.2018 12.11.2018 2.

of TS Forest Act Sections 20, 29 & 44 POR No.

15/ 05 of FRO, Neradigonda Cognizable/ Non-Bailable 14.12.2018 14.12.2018 3.

of TS Forest Act Sections 379, 332, 506 r/ w 34 Cognizable/ Non-Bailable 4.

268/ 2018 of Echoda PS 22.12.2018 22.12.2018 of IPC, Section

3(1) (2) of PDPP Act and Sections 20, 29 & 44 of TS Forest Act Section 379 r/ w 34 of IPC, Section 3(1) of PDPP Act and Sections 20 5.

138/ 2018 of Neradigonda Cognizable/ Non-Bailable PS 23.12.2018 23.12.2018 & 29 of TS Forest Act Section 379 of IPC, Section 3(1) (2) of PDPP Act and Sections 20 Cognizable/ Non-Bailable 6.

9/ 2019 of Echoda PS 09.01.2019 09.01.2019 & 29 of TS Forest Act A bare perusal of the detention order clearly reveals that the bail application filed by the detenu in Crime No.138/ 2018 was dismissed by the Court concerned vide Crl.M.P.No.111/ 2019, dated 19.01.2019. Thus, the detenu continues to be in judicial custody. However, the apprehension of the detaining authority that there is every possibility of the detenu moving bail petition in the said crime again and also in the remaining 11 cases in which he is in judicial custody and in the event of his release on bail, there is imminent possibility of committing similar offences unless he is prevented from doing so by an appropriate order of detention, is highly misplaced. In such an event, 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. The police ought to have been vigilant in collecting the whole data against the detenu and to furnish the same to the Public Prosecutor/ Additional Public Prosecutor

to defeat the bail applications of the detenu. When the detenu has not been released from the judicial custody, the apprehension of his coming out from the prison and committing similar offences is misplaced. It is appropriate to refer to the decision of the Apex Court in Rek h a Vs. St at e of Tam il Nadu 4, wherein it is held as follows: "Where a detention order is served on a person already in jail, there should be a real possibility of release of a person on bail who is already in custody, provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence, the detention order will be illegal."

Grave as the offences may be, they are forest offences and theft. 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. Therefore, the impugned orders are legally unsustainable. Even while passing the confirmation order dated 16.03.2019, 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.

For the reasons stated above, the Writ Petition is hereby allowed. The impugned detention order dated 25.01.2019 passed by 4 (2011) 5 SCC 244

the respondent No.2 and the confirmation order dated 16.03.2019 passed by the respondent No.1 are hereby set aside. The respondents are directed to set the detenu, namely, Mr. Shaik Shabbeer, S/ o. Shaik Moosa, at liberty forthwith, if he is no longer detained in the judicial custody in the criminal cases, which have been registered so far against him.

The miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ RAGHVENDRA SI NGH CHAUHAN, HCJ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dr . SHAMEEM AKTHER, J 18th July, 2019 Bvv