Jangam Srinivas 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.6241 of 2019 Date: 27.06.2019 Between:

Jangam Srinivas

...Petitioner

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

...Respondents

Counsel for the petitioner : Mr. Arun Kumar Mudi Counsel for the respondents: The Advocate General The Court made the following:

ORDER: (Per the Hon'ble Dr. Justice Shammem Akther) Alleging that his son, Mr. Jangam Pavan Sai, S/o. Jangam Srinivas, aged 20 years, is involved in five crimes of house burglaries and theft registered in 2018, his son is being preventively detained by order dated 16.10.2018 passed by the Commissioner of Police, Warangal, the respondent No.3, and confirmed by order dated 27.10.2018 by the Principal Secretary to Government (POLL), the respondent No.1, the unfortunate father, Jangam Srinivas, 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 the five recent criminal cases registered against the detenu in the year 2018 with respect to house burglaries and theft of huge quantity of gold and silver ornaments in the absence of the inmates in the localized police stations of Warangal Police Commissionerate in quick succession, the Commissioner of Police, Warangal, the respondent No.3, passed the detention order dated 16.10.2018. According to the respondent No.3, since the detenu was involved in gruesome and grave offences of house burglaries and theft in the recent past during the year 2018, the detention order was passed. Subsequently, by order dated 27.10.2018, the detention order was confirmed by the respondent No.1. Hence, this petition before this Court.

Mr. Arun Kumar Mudi, the learned counsel for the petitioner, has raised the following contentions before this Court:

Firstly, relying only on the five recent cases registered against the detenu, the impugned detention order is passed. Secondly, curiously, all the cases registered in 2018 relate to the offence of burglary, under Section 380 and under Sections 454 & 457 of IPC.

Thirdly, such petty 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 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 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 1 AIR 1966 SC 740

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 these petty cases have created a panic and have "disturbed the public order". Fourthly, 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 16.10.2018, by order dated 27.10.2018, 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. In the detention order, it is categorically mentioned that since the accomplice of the detenu was already granted bail in Crime No.73 of 2018, there is every likelihood of the detenu getting bail in the said crime and in case the detenu is released on bail, there is every likelihood of he indulging in prejudicial activities, which are detrimental to the public order, unless he is prevented from doing so by an order of detention. Thus, it is clear that 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 been indulging in series of house burglary and theft offences in the localized police stations of Warangal Police Commissionerate. Therefore, the series of house burglaries and theft committed by the detenu have 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 16.10.2018, passed by the respondent No.3 and the confirmation order, dated 27.10.2018, 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 2 (1972) 3 SCC 831

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, 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 detenu is allegedly involved in five criminal cases in Crime Nos.92/2018, 103/2018, 104/2018, 113/2018 and 73/2018. We shall present in a tabular column the date of occurrence, the date of registration of FIRs, the offences complained of and their nature, such as bailable/nonbailable or cognizable/non-cognizable. Date of registration of FIR Offences Nature Crime No.

Date of Occurrence 92/2018 of Madikonda PS 27.06.2018 27.06.2018 Section 457 & 380 of IPC Non-bailable/ cognizable 103/2018 of Duggondi PS 13.08.2018 04.09.2018 Section 454 & 380 of IPC Non-bailable/ cognizable 104/2018 of Duggondi PS 22.08.2018 06.09.2018 454 & 380 of IPC Non-bailable/ cognizable 113/2018 of Sangam PS 23.08.2018 28.08.2018 Section 454 & 380 of IPC Non-bailable/ cognizable 73/2018 of Velair PS 27.08.2018 27.08.2018 Sections 454, 380 IPC Non-bailable/ cognizable A perusal of the impugned detention order reveals that the detaining authority has taken only five cases, which were

registered against the detenu in the year 2018 as the basis for preventively detaining him. But, all these five cases are for offences under Sections 454, 457 and 380 IPC. Since these are petty cases, the detenu 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. But, the preventive laws cannot be used in 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 16.10.2018, passed by the respondent No.3 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 16.10.2018, passed by respondent No.3, and the confirmation order dated 27.10.2018, passed by respondent No.1 are set aside. The respondents are directed to set the detenu, namely, Mr. Jangam Pavan Sai, S/o Jangam Srinivas, 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