Hina Begum 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 SRI JUSTICE A.ABHISHEK REDDY WRIT PETITION No.16430 OF 2019 Date : 19.09.2019 Between :

Hina Begum ... Petitioner and The State of Telangana, Rep. by its Principal Secretary, General Administration {Spl. (Law&Order) Department, Secretariat, Hyderabad, and others ... Respondents Counsel for the petitioner:

Sri P.Trivikram Reddy Counsel for the respondents: Sri S.Sharath Kumar, Special Government Pleader.

The Court made the following:

ORDER: (Per the Hon'ble Sri Justice A.Abhishek Reddy) Ms.Hina Begum, the wife of the detenu, Shaik Saleem, has filed the present Writ Petition, challenging the Detention Order passed by the 2nd respondent, who by exercising the powers conferred under Section 3 (2) of 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, 1986 (in short, 'the Act'), vide proceedings SB (I) No.111/PD-2/HYD/2019, dated 03.06.

2019, and the confirmation order passed by the 1st respondent vide G.O.Rt.No.1592, dated 12.06.2019, alleging that the petitioner's husband has been habitually engaging himself in unlawful acts of committing theft of auto rickshaws in an organized manner along with his associates and thereby creating large scale fear and panic among the people adversely affecting the public order. The ground on which the detention order is passed by the 2nd respondent is that in the year 2019, the detenu was involved in four similar offences viz., (1) crime No.1/2019 of Golconda Police Station registered for the offences under Sections 379 read with 34 and 411 of Indian Penal Code (for short 'IPC') and Section 102 of the Criminal Procedure Code, (2) crime No.

No.24/2019 of Golconda Police Station registered for the offence under Section 379 IPC and (4) crime No.59/2019 of Rajendra Nagar Police Station registered for the offence under Section 379 IPC, apart from eight other crimes of similar nature. 2.

It is the case of the petitioner that her husband was falsely implicated in the above referred cases. Even though, the detenu was granted bail in all the above referred cases, he continued to be in judicial custody, in view of the impugned Detention Order, which is passed only to see that her husband does not come out of the jail. Hence, the present writ petition.

3.

Heard the learned Counsel for the parties, and perused the impugned order.

4.

Mr.P.Trivikram Reddy, the learned counsel appearing for the petitioner, submits that relying only on four cases registered against the detenu, that too of the year 2019, the impugned detention order is passed. He further submits that the alleged cases do not amount 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, the detenu can certainly be tried and convicted under the common law i.e. Indian Penal Code. Thus, there was no need for the detaining authority to invoke the draconian preventive detention laws. Hence, the impugned order tantamounts to the colourable exercise power. Thus, the impugned orders are legally unsustainable.

5.

On the other hand, Mr.S.Sharath Kumar, the learned Special Government Pleader, pleads that the series of crimes allegedly committed by the detenu were sufficient to cause a feeling of large scale fear and panic among the people thereby adversely affecting the public order. Since the modus of committing the crime is theft of auto rickshaws, in an organized way, it has created sufficient panic and fear in the minds of the general public. Therefore, the detaining authority was legally justified in passing the impugned detention order. Hence, the learned Special Government Pleader has supported the impugned order.

6.

In view of the submissions made by both the sides, the point that rises for determination in this Writ Petition is: "Whether the detention order, dated 03.06.2019, passed by the 2nd respondent and the confirmation order, dated 12.06.2019, passed by the 1st respondent are liable to be set aside or not?"

POINT:

7.

In catena of decisions the Hon'ble Supreme Court as well as this Court have held 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 ordinary 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 guaranteed and protected 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.

8.

Learned Counsel for the petitioner has relied on the Judgment of the Hon'ble Supreme Court reported in V.SHANTHA v. STATE OF TELANGANA AND OTHERS1 wherein the Hon'ble Apex Court while considering various provisions of the Act held as under:- "The detenu was the owner of Laxmi Bhargavi Seeds, district distributor of Jeeva Aggri Genetic Seeds. Three FIRs were lodged against the detenu and others under Sections 420, 120-B, 34 IPC and Sections 19 and 21 of the Seeds Act, 1966. It was alleged that chilli seeds sold were spurious, as they did not yield sufficient crops, thus causing wrongful loss to the farmers, and illegal gains to the accused. Whether the seeds were genuine or not, the extent of the yield, are matters to be investigated in the FIRs. Section 19 of the Seeds Act provides for penalty by conviction and sentence also.

Likewise, Section 20 provides for forfeiture. Sufficient remedies for the offence alleged were, therefore, available and had been invoked also under the ordinary laws of the land for the offence alleged. The order of preventive detention passed against the detenu states that his illegal activities were causing danger to poor and small farmers and their safety and financial wellbeing. Recourse to normal legal procedure would be time-consuming, and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the Preventive Detention Act as an extreme measure to insulate the society from his evil deeds.

The rhetorical incantation of the words "goonda" or "prejudicial to maintenance of public order" cannot be sufficient justification to invoke the Draconian powers of preventive detention.

yield from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of preventive detention. The grounds of detention are ex facie extraneous to the Act."

The Supreme Court further held that preventive detention involves detaining of a person without trial in order to prevent him/her from committing certain types of offences. But such detention cannot be made a substitute for the ordinary law, and absolve the investigating authorities of their normal functions of investigating crimes which the detenu may have committed. After all, preventive detention in most cases is for a year only, and cannot be used as an instrument to keep a person in perpetual custody without trial. 9.

In the case of Ram Manohar Lohia v. State of Bihar2, 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 2 AIR 1966 SC 740

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."

10.

In the case of Kanu Biswas v. State of West Bengal3, 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?"

11.

In the instant case, the detaining authority mainly relied on four cases registered against the detenu for preventively detaining him viz., (1) crime No.1/2019 of Golconda Police Station registered for the offences under Sections 379 read with 34 and 411 of Indian Penal Code (for short 'IPC') and Section 102 of the Criminal Procedure Code, (2) crime No.21/2019 of Golconda Police Station registered for the offence under Section 379 IPC, (3) crime 3 (1972) 3 SCC 831

No.24/2019 of Golconda Police Station registered for the offence under Section 379 IPC and (4) crime No.59/2019 of Rajendra Nagar Police Station registered for the offence under Section 379 IPC.

12.

A perusal of the impugned detention order reveals that in all the cases, the detenu moved bail petitions, and he was granted bail by the concerned Court. Since the detenu could not furnish sureties, he could not be released from jail. The apprehension of the detaining authority that in the event of his release from the prison on bail, there is imminent possibility of his committing similar offences, unless he is prevented from doing so by an appropriate order of detention, is highly misplaced. It is the bounden duty of the police concerned to hand over the entire material record available to the Public Prosecutor/Assistant Public Prosecutor to see that the bail application of the detenu is dismissed.

If the Police are vigilant enough to collect the data relating to the alleged offences, 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. It is the Police that have to take required 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. 13.

Grave as the offences may be, they relate to theft of auto rickshaws. So, no inference of disturbance of public order can be

drawn. These types of cases can certainly be tried under the normal criminal justice system. And, if convicted, can certainly be punished by the Court of law. Hence, there was no need for the detaining authority to pass the detention order. 14.

Therefore, for the reasons stated above, the impugned order is legally unsustainable.

15.

In the result, the Writ Petition is allowed. The impugned detention order, dated 03.06.2019, passed by the 2nd respondent and the confirmation order, dated 12.06.2019, passed by the 1st respondent are hereby set aside. The respondents are directed to set the detenu namely, Mr.Shaik Saleem, S/o.Shaik Hussain, 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, if any, shall stand closed. There shall be no order as to costs. _________________________________ RAGHVENDRA SINGH CHAUHAN, HCJ ____________________ A.ABHISHEK REDDY, J Date : 19.09.2019 smr