Vempati Sujatha v. The State Of Telangana And 3 Others

HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY NINTH DAY OF DECEIVBER TWO THOUSAND AND TWENTY PRESENT THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN AND THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY WRIT PETIT ION NO: 19123 OF 2020 Between:

Vemoati Suiatha, W/o. Bachis. Aged 38 years, Occ. Housewife, RJo H No 3-9-516' Flat No.l6, iVladhuranagar Colony, Hyderabad ...pETlTloNER AND ' "'t . ft,e State of Telangana, Rep. by its Principal secretary for Home Department, Secretariat, HYderabad z. ine f-fon'nti: ihairman, Advisory Board for P.D, Act cases, Secretariat' Hvderabad.

s. i6eFiinaital Secretary to Government (Political), General Ad Department, Telangana, Hyderabad.

a. ifrJ Commissioner-of Polic-e, Rachakond a Commissionerate ministration ...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 of habeas corpus, to declare the impugned order passed by the 3rd RespondentvideG.o'Rt.No.1462,dated.

5/10/2020byconfirmingtheorderof Detention passed by the 4th Respondent vide its No 32lPD CELL/CCRB/ RCKD/2o2o,dated24lOTl2O20againstthedetenubynameVempatiBhachiswhois petitioners husband is as illegal' arbitrary, unjust and Violation of Principles of natural Justice and violation of Article 21 and 22 0f the constitution of lndia and consequently direct the Respondents to produce the detenu by name Vempati Bhachis and set aside the impugned orders of the 3rd and 4th respondents by directing them to release/set free the detenu and call for the records' IANO: 1OF2 020 PetitionunderSectionl5lCPcprayingthatinthecircumstancesstatedin theaffidavitfiledinsupportofthepetition'theHighCourtmaybep|easedtodirect therespondentaUthoritiestorelease/setfreetheDetenubynameVempatiBhachis by suspending the orders of the 3rd respondent vide G O Rt No 1462' dated' 5llol2o2obyconfirmingtheorderofDetentionpassedbythe4thRespondentvide its No' 32lPD cELL/CCRB/RcKol2o2o, da|ed 24107t2020 pending disposal of the main Writ Petition.

Counsel for the Petitioner: SRl. PULLA RAO YELLANKI Counsel for the Respondents: SRI T' SRIK'ANTH REDDY GP FOR HOME The Court made the following: ORDER

ORDER! (Per Hon'ble Sri Justice B. Vjjaysen Reddy) The detention order passed against Vempati Bachis, S/o. Ramakrishna, dated 24.O7.2020, by the Commissioner of Police, Rachakonda Com missionerate, in exercise of powers conferred under sub-section (2) of Section 3 of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, coondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertilizer Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Exprosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986 (Amendment Act No.13 of 2018) (for short 'the Act') and the confirmation order of the State vide G.O.Rt,No.1462 dated 05.10.2020 are challenged by way of this writ of Habeas Corpus as being illegal, arbitrary, r n constitutiona I and violative of Articles 2t and 22 of the Constitution of Irldia. 2.

Heard Mr. Pulla Rao Yellanki, learned counsel for the petitioner and the learned Government Pleader for Home N4r. T. Srikanth Reddy for the respondents.

3.

The detention order is passed on the following solitary ground case viz.

Cr.No,109 of 2020 under Section 420 IPC and Sections 3(1) the Seeds (Control) Order, 1983 and Clarrse 7 of the Fertilizers (Control) Order, 1985, Clause 3(21(d) of the Essential Commodities Act, 1955 and Section 29(1)(c) of the Insecticides Act, 1968 of Kandukur Police Station, Rachakonda. 4.

Learned counsel for the petitioner submitted that the detenu has been falsely implicated the aforesaid crime. The detentlon order is passed in a mechanical manner without application of mind, more

particularly, without examining the past conduct and criminal antecedents of.the detenu. Hence, the detenu cannot be branded as spurious seed offender for the purpose of invoking the provisions of the Act. The 'ordinary law of the land was already invoked' The act of alleged supply of spurious seeds alleged to have been committed by the detenu does not affect public order and is not prejudicial to the maintenance of public order' The detenu has been granted bail in the aforesaid crime' The opinion formed by the detaining authcrity that there is imminent possibility of the detenu indulging in simiiar offences, which are detrimental to the maintenance of public order, is wholly untenable and vindictive only to curtail the lifeandlibertyofthedetenu'ThedetentionorderisviolativeofArticle 21 of the Constitution of India 5.

Per contra, ihe learned Government Pleader for Home submitted that the detenu indulged ln the clandestine business of procuring spurious cotton seeds, treating them with colors and chemical' packing in bags and supplying to the innocent farmers of pecuniary galns' thereby disturbing the public order and tranquility in the Rachakonda Police Com missionerate' Having satisfied that the activities of the detenu are prejudicial to the maintenance of public order' it was necessary to detain him and hence impugned order is passed with a view to prevent him From indulging in such activities' in the interest of farmer community at large. The detaining authority having considered the entire material placed before him,, passed the detention order duly following the well established procedure under the law and in strict compliance of provisions of the Act'

Preventivedetentionisanextremestep,whichcanberesorted tobyanexecutiveauthorityaSalastresort'Beforepassingof detention order the authority has to keep in mind that liberty of an

individual, which is a precious and cherished fundamental right guaranteed under Article 21 of the Constitution of India, is being deprived. In the process of depriving an individual of such valuable right to life and personal liberty, the authority has to satisfy itself that the activities of the detenu are of such nature whlch cannot be curbed except for passing the detention order. personal liberty of an individual which is a precious and basic human right cannot be allowed to be trampled with at the whims and fancies of the executive authorities. The detention order needs to be passed for genuine and bona fide reasons and not on extraneous grounds. It should subserve the purpose and object of the Act under which the authority has drawn its power. The detention order may be passed under Section 3 oF the Act if the Government is satisfied that a person is to be detained with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. The main object for passing the detention order being that it has to be ensured that such object is achieved.

7.

In KISHORI MOHAN BERA v, STATE OF WEST BENGAL1 the Hon'ble Apex Court held at page 847, para 4 as under: "The Act confers extraordlnary power on the executive to detain a person without recourse to the ordinary laws of the land and to trial by Courts. Obviously. such a power places the personal liberty of such a person in extreme peril against which he is provided with a limited right of challenge only. There can, therefore, be no doubt that such a law has to be stricUy construed. Equally also, the power conferred by such a law has to be exercised with extreme care and scrupulously within the bounds laid down in such a law."

In YUMMAN ONGBI LEMBI LEIMA V, STATE oF MANIPUR AND OTHERS2, the Apex Court held at para 27 as under: ' ltolz;: scc 8+s t (zotz) z Supreme Court Cases

"27, As has been observed in various cases of similar nature by this Court, the personal liberty of an individual is the most precious and prized right guaranteed under the Constitution in Part III thereof. The State has been granted the power to curb such rights under criminal laws as also under the laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order."

Further, in STATE OF MAHARASHTRA v'

BHAURAO PUNJABRAO GAWANDE3 it is held at para 23 as under: "23...... personal liberty is a precious right. So did the Founding Fathers believe because, while their first object was to give unto the people a Constitution whereby a Government was established, their second object, equally important, u/as to protect the peopte against the Government That is why, while conferring extensive powers on the Government like the power to declare an emergency, the power to suspend the enforcement of fundamental rights or the power to issue ordinances, they assured to the people a Bill of Rights by Part III of the Constitution, protecting against executive and legislative despotism those human rights which they regarded as 'fu nda m enta l'. "

8, Assuming that there is imminent posslbility of the detenu indulging in similar offences, the prosecuting agency is always at liberty to move application for cancellation of bail and without resorting to such step, the impugned detention order is passed' This Court in WP.No.28524 of 2Ol9 dated 06.02.2020, held at para 12 as under:

"12) A perusal of the impugned detention order reveals that the detenu was granted bail only in crime No 290l2019 of Inthezargunj PS. However, the apprehension of the detaining authority that the detenu may move 2nd bail application in the remaining cases, the same may be allowed by the concerned Courts and in the event of his release from the jail on bail, ' (2008) i scc 6l 3

there is imminent possibility of him committing similar offences, unless he is prevented from doing so by an appropriate order of detention, is highly misplaced. If the detenu is enlarged on bail and violates the conditions of bail or indulges in similar crimes while on bail, the concerned authority/Pu blic Prosecutor is free to move the concerned Court for getting the bail cancelled. 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 Pollce 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 ind ivid ual.

9.

When ordinary law is capable of dealing with the alleged prejudicial activities of the detenu the provisions of the preventive detention law cannot be invoked. The executive authority has to keep in mind before detention order is passed that ordinary law will not act as deterrent on the activities of the detenu. In the instant case, the offence relates to the provisions of the Seeds Act. Unless it is opined that the activities of the detenu have impact on the public order or are of such nature, which have the potential of adversely affecting the public order, detention order cannot be passed in a routine manner. There is no discussion in the impugned detention order as to how the activities of the detenu would affect the public order and also as to the compelling reasons for invoking the provisions of the Act when ordinary law is sufficient. The Supreme Court in MUNGALA YADAMMA V. STATE OF ANDHRA PRADESH4 "No doubt, the offences alleged to have been committed by the appellant are such as to attitact punishment under the Andhra o (2012) 2 scc 386

Pradesh Prohibition Act, but that in our view has to be done under the said laws and taking recourse to preventive detention laws would not be lvarranted. Preventive detention involves detaining of a person without trial in order to prevent him/her from committinq 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 detenue 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 perpetua I custody without trial,"

10. Apart from that, there is also no proper conclusion arrived at by the detaining authority as to how public order is affected' There ls a dirference between law and order and public order' It is held by the Supreme Court in ARUN GHOSH v. STATE OF WEST BENGALS as u nde r:

"It means therefore 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 the extent of the reach of the act upon the society' The French distinguish law and order and public order by designating the latter as order publique The latter expression has been recognized as meaning something more than ordinary maintenance of law and order.

In S,K. KEDAR v. STATE OF WEST BENGAL6, the Supreme Court held as under:

The relevant criteria to distinguish in the abstract between acts prejudicial to maintenance of law and order and those which are prejudicial to maintenance of public order are laid down in a number of rulings of this Court (see Pushkar Mukheriee and others v. The state of West Benoal [(1969) 1 SCC 7O), Sudhir Kumar Saha V. Commisssioner Of Police' catcutta [(1970) 1 SCC 149] and Naaendra Nath Mondal v' The State of West Bendat t(1972) 1 SCC 498l The question whether a person has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the ' l9?o(r) scc 98 6(tc)72)3scc8l6

public order is one of degree and the extent of the reach of the act upon the society. An act by itself is not determinative of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Similar acts in different contexts affect differently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its effect upon the community. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. It is the degree of disturbance and its effect upon the life oF the community in a locality which determines whether the disturbance amounts only to a breach of the law and order.

11, In the light of the above observations, impugned detention order dated 24.O7.2020 is liable to be set aside and this writ petition is lia ble to be allowed.

The writ petition is allowed. The impugned detention order dated 24.O7.2020 and the confirmation order dated 05.10.2020 are hereby set aside. The respondents are directed to set the detenu, namely Vempati Bachis, S/o, Ramakrishna, at liberty forthwith, in case he is no longer detained in the criminal cases which have been registered so far against him.

As a sequel, the miscellaneous petitions, pending if any, shall stand closed. There shall be no order as to costs. SD/-M.MANJULA ASSISTANT REGIS'RAR //TRUE COPY/I k\/ SECTION OFFICER . T_he Principal Secretary for Home Department, State of Telangana Secretariat, Hyderabad.

. The Hon'ble Chairman, Advisory Board for P.D, Act cases, Secretariat, Hyderabad.

. The Principal Secretary to Government (Political), General Administration Department, Telangana. Hyderabad.

. The Commissioner of Police, Rachakonda Commissionerate. . One CC to Sd Pulla Rao Yellanki, Advocate IOPUCI . Two CCs to GP for Home, High Court for the State of Telangana at Hyderabad. tourl . Two CD Copies *.

To, r> CHR

HIGH COURT DATED:2911212020 1 HE sTA 7a t5c 'J 1I JIN 2021 Z C) "E

ORDER

oa .'/ W.P.No.19123 of 2020 ALLOWING THE WRIT PETITION WITHOUT COSTS q r"l a Ix