Arun Mandal 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.4 6 2 2 7 of 2 0 1 8 Date: 04.07.2019 Between:

Arun Mandal

...Petitioner

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

...Respondents

Counsel for the petitioner : Sri S. Viplava Simha 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) Alleging that his son, Mr. Raja Kumar Mandal, S/ o. Arun Mandal, aged 20 years, is involved in a crime of murder and robbery in the limits of Cyberabad Police Commissionerate, registered in the year 2018, his son is being preventively detained by order dated 14.11.2018 passed by the Commissioner of Police, Cyberabad Police Commissionerate, the respondent No.2, and confirmed by order dated 22.11.2018 by the Principal Secretary to Government, General Administration (Spl.

(Law and order) Department, Government of Telangana, the respondent No.1, the unfortunate father, Arun Mandal, 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 one criminal case registered against the detenu in the year 2018 (Crime No.1279 of 2018 of Rajendranagar Police Station), for the offence punishable under Sections 302, 457, 394 read with 120B of IPC, in respect of murder of one Rajendra Prasad Agarwal and robbing away gold and silver jewelry and cash in the limits of Cyberabad Police Commissionerate, the Commissioner of Police, Cyberabad Police Commissionerate, the respondent No.2, passed the detention order dated 14.11.2018. Subsequently, by order dated 22.11.2018, the detention order was confirmed by the respondent No.1. Hence, this petition before this Court. Mr. S. Viplava Simha Reddy, the learned counsel for the petitioner, has raised the following contentions before this Court:

Firstly, relying only on one case registered against the detenu in the year 2018, the impugned detention order is passed. Secondly, such case can easily be tackled by the criminal justice system by holding a criminal trial. Therefore, the alleged case, basing on which the detention order was passed, would 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 case 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. Therefore, the detention of the detenu is patently illegal. Hence, the detaining authority is unjustified in claiming that the alleged crime has created a panic and have "disturbed the public order".

Thirdly, 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 1 AIR 1966 SC 740

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 14.11.2018, by order dated 22.11.2018, 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. Admittedly, in the alleged crime relied by the respondent No.2, the detenu had moved a bail petition and the same was dismissed by the Court concerned on 10.10.2018. The detenu moved another bail application on 30.10.2018 and the same is pending consideration 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. Sharath, learned Special Government Pleader, has vehemently pleaded that the detenu has indulged in murder of one Rajendra Prasad Agarwal and robbed away gold and silver jewelry and cash in an organized way, in the limits of Cyberabad Police Commissionerate. Therefore, the crime, alleged committed by the detenu, has 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: W h et h er t h e det en t ion or der , dat ed 1 4 .1 1 .2 0 1 8 , 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 2 2 .1 1 .2 0 1 8 , passed by t h e r espon den t No.1 , ar e liable t o be set aside? Poin t :

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 Ram Man oh ar Loh ia'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:

2 (1972) 3 SCC 831

"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 respondent No.2 had relied on only one case registered in the year 2018 for preventively detaining the detenu. We shall present in a tabular column, the date of occurrence, the date of registration of FIR, the offences complained of and their nature, such as bailable/ non-bailable or cognizable/ non-cognizable.

Dat e of r egist r at ion of FI R Offen ces Nat u r e Cr im e No.

Dat e of Occu r r en ce 1279/ 2018 of Rajendranagar PS 17.08.2018 17.08.2018 Sections 302, 457, 394 r/ w 120B of IPC Non-bailable/ cognizable It is appropriate to refer the decision rendered by the Hon'ble Apex Court in Vij ay Nar ain Sin gh v. St at e of Bih ar 3, wherein it was held that a single act or omission cannot be characterized as a habitual act or omission because, the idea of 'habit' involves an element of persistence and a tendency to repeat the acts or omissions of the same class or kind, if the acts or omission in question are not of the same kind or even if they are of the same kind when they are committed with a long interval of time between them, they cannot be treated as habitual ones.

A perusal of the impugned detention order reveals that the detenu is involved in only one criminal case registered against him (Crime No.1279 of 2018 of Rajendranagar Police Station) and the detaining authority has taken the same as the basis for preventively detaining him. The detenu moved a bail petition in the subject crime and the same was dismissed by the Court concerned, vide order, dated 10.10.

Crl.M.P.No.4206/ 2018. The detenu moved second bail petition on 30.10.2018, vide Crl.M.P.No.4909/ 2018 and the same is pending for consideration by the Court concerned. Thus, the detenu continues to be in judicial custody. The crime allegedly committed by the detenu is for the offences punishable under Sections 302, 457, 394 r/ w 120B of IPC. These type of cases 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 14.11.2018, passed by the respondent No.2 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 14.11.2018, passed by respondent No.2, and the confirmation order dated 22.11.2018, passed by respondent No.1 are set aside. The respondents are directed to set the detenu, namely, Mr. Raja Kumar Mandal, S/ o. Arun Mandal, 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 04th July, 2019 Bvv