THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
AND
THE HON'BLE DR. JUSTICE SHAMEEM AKTHER
W.P.NO.2234 OF 2021
O R D E R (Per the Hon'ble Sri Justice A.Rajasheker Reddy)
The detenu is Vajib Kham s/o Jamshed Khan. The 2nd respondent - Commissioner of Police, Hyderabad City, taking into consideration the four crimes registered against detenu in Cr.Nos.535/2020, 877/2020, 943/2020 and 1047/2020 under Sections 66-C and 66-D of IT Act, and Sections 419 and 420 of IPC on the file of Cyber Crime Police Station, CCS, DD, Hyderabad, and holding that he is satisfied that detenu is habitually cheating people along with his associates in an organized manner, to acquire huge and illegal money in the limits of Hyderabad Police Commissionerate by giving false advertisements on OLX website indicating that vehicles were for sale by misrepresenting that he was working with Indian Army; that he is a 'White Collar Offender' as defined in Clause (x) of Section 2 of the Telangana Prevention of Dangerous Activities of Bottleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986 (Act No.1 of 1986); that he is acting in a manner prejudicial to the maintenance of public order; and that ordinary law under which he is booked is not sufficient to deal with his illegal activities, unless he is detained under the detention laws; passed the 2 impugned order of detention vide SB(1)No.250/PD-7/HYD/2020 dated 24.11.2020 under sub-section 2 of Section 3 of the Act No.1 of 1986.
2. The said detention order has been approved by the Government under sub-section 3 of Section 3 of Act 1 of 1986 vide G.O.Rt.No.1872 General Administration Spl. (Law and Order) Department dated 3.12.2020 and subsequently confirmed the 1st respondent vide G.O.Rt.No.264 General Administration Spl. (Law and Order) Department dated 2.2.2021.
3. Assailing the same, the petitioner, who claims to be the brother- in-law of the detenu, filed the present writ petition for a writ of Habeas Corpus directing the 3rd respondent to produce the detenu, and to set aside the detention order.
4. Learned counsel appearing for the petitioner submits that 2nd respondent passed the impugned order of detention without application of mind. The four crimes, relied on by the detaining authority, are all foisted cases, and there is no incriminating material available against the detenu and based on the confessional statements recorded by the police, detention order has been passed, and the same cannot be sustained.
5. That, the acts alleged against the detenu does not affect the public order, and they are in no manner prejudicial to the maintenance of public order, and ordinary law of the land would be sufficient to deal with them. But the detaining authority by taking the 'law and order' problem, as 'public order', passed the preventive detention order, and the same is illegal, and arbitrary.
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6. That, the cases registered against the detenu are still under investigation and no charge sheets are filed, and the trial court granted conditional bails in two cases and in other two cases, bail applications are pending, and on release from jail, if the detenu violates any bail conditions or indulges in similar activities, the prosecution can seek for cancellation of bails, and there is no justification in invoking the preventive detention laws.
7. That, for arriving at the subjective satisfaction, the 2nd respondent has not recorded any reasons, and this amounts to violation of principles of natural justice. That the detaining authority has to carefully analyze the material on record, and after considering the material in an objective manner, has to invoke the preventive detention laws. In the present case, there is no such objective assessment, and the impugned order has been passed in a mechanical manner, thereby depriving the personal liberty guaranteed to the detenu under Article 21 of the Constitution of India, and hence the same is illegal, and liable to be interdicted by this court.
8. With these submissions, learned counsel for the petitioner seeks to set aside the detention order, and the Government Orders confirming the same. In support of his contentions, learned counsel relied on the Division Bench judgment of this court in K.SUGUNA vs. THE STATE OF TELANGANA1, RAM MANOHAR vs. STATE OF BIHAR2 and REKHA vs. STATE OF TAMILNADU3.
1 W.P.No.24441 of 2019 dated 23.1.2020 2 AIR 1966 SC 740 3 (2011)5 SCC 244 4
9. On the other hand, learned Assistant Government Pleader for Home, appearing for learned Advocate General submits that detenu is in the habit of cheating gullible people by giving advertisement in OLX for sale of two and four vehicles, falsely claiming that he is an Army personnel and after receipt of money from prospective purchasers through different modes viz., Google Pay, phone pay, paytm, Fino bank etc., used to switch off the phones. The people who lost the money and were cheated, made complaints and thus four crimes have been registered in a short span of time, all under Section 66-C 66-D of IT Act, and Sections 419 and 420 of IPC, and the four crimes are under investigation, and the detenu was granted conditional bail in two cases, and in other two cases, there is every likelihood of granting bail. The activities of the detenu fall under the category of 'While Collar Offender' under clause (x) of Section 2 of Act 1 of 1986. As there is every possibility of detenu coming out from jail on being granted bail, and as seen from his past history, there is every likelihood of committing such offences, which are detrimental to the public order, the 2nd respondent considering the material on record and in compliance with the statutory procedure, and also in compliance with all the principles of natural justice, passed the impugned order of detention by categorically recording his subjective satisfaction.
10. That when the detaining authority records his satisfaction based on the material available before him, this court cannot substitute its opinion for that of the detaining authority, except in exceptional cases and that the present case is not one of exceptional nature, therefore, this court may not interfere with the impugned order of detention. In support of his contention, 5 learned Assistant Government Pleader relied on the judgments of Apex Court in SUBRAHMANIAH vs. STATE OF TAMIL NADU4 and STATE OF PUNJAB vs. SUKHPAL SINGH5.
11. With these submissions, learned Assistant Government Pleader seeks to dismiss the writ petition.
12. Heard both the counsel and perused the material on record.
13. Since the arguments of both the counsel mainly revolved around the issue, whether the alleged acts committed by the detenu fall within the ambit of 'public order' or 'law and order', it is necessary to look into the law laid down by Apex Court in this regard.
14. It is to be seen that if the criminal acts alleged against the detenu disturbs the current life of the community, leading to disturbance of the public order, or the potential of the act disturbs even the tempo of life of the community, which makes it prejudicial to the maintenance of 'public order', then the authority is justified in passing the order of detention under the provisions of Act 1 of 1986. On the other hand, if the criminal activities alleged against the detenu merely affects an individual, leaving the tranquility of the society undisturbed, or that the contravention alleged against the detenu, is confined only to a few individuals directly involved, as distinct from a wide spectrum of public, it has to be considered only as 'law and order' problem. {See Arun Ghosh v. State of Bengal (1970)1 SCC 98 and Commr. Of Police v. C.Anita (2004)7 SCC 467}. Since same is also the 4 (2012)4 SCC 699 5 (1990)1 SCC 35 6 view expressed in the judgments 2 and 3, relied on by the learned counsel for the petitioner, they are not being referred to, to avoid repetition.
15. Coming to the facts of the present case, from the material on record, it could be seen that the modus operandi of the detenu, is that he along with his associates placed an advertisement on OLX, which is an online social media advertisement platform, for selling of two and four wheelers. When the prospective purchasers contacted them on the given phone number, they falsely introduce themselves as army personnel, and after gaining confidence, they used to fix sale price of the vehicle. Initially, the detenu would request the victim to send advance amount. Thereafter, on one or the other pretext, they extract money, more than the agreed sale price through google pay and bank transfers etc., and after receiving substantial amounts, they used to switch off their mobile phones, thus cheating the people who transferred the amounts.
16. The victims of this fraud, filed four complaints bearing Cr.Nos.535/2020, 877/2020, 943 of 2020 and 1047 of 2020, all under Section 66-C and 66-D of IT Act, and Sections 419 and 420 on the file of Cyber Crime P.S. CCS, DD, Hyderabad, and they are stated to be at the stage of investigation.
17. All these crimes are registered against the detenu during the year 2020 within a short span of time.
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18. In the counter affidavit, the efforts made by the police for arresting the detenu and his associates who are residents of Chulhera, and Kalyanpur, Bharatpur Districts of Rajasthan State, are stated.
19. A careful analysis of the acts committed by the detenu and his associates, would show that not only the individual victims of the crime are affected, but the people who resort to making purchases through online advertisement platforms, will be affected, since by coming to know these fraudulent activities, they will be under terrific fear and panic, thinking that whether the online advertisement firm chosen by them for making any purchase, is genuine or not, and whether they will receive the products for which they have transferred the amounts. In the present era of internet and globalization, due to lack of time for shopping personally, traffic and other problems, availability of variety of items of national and international make on social media, better pricing options, facility to transfer money through different modes viz., account transfer, google-pay, phone-pay etc., people prefer online advertisement platforms, for making purchases of different items. If the people come to know the alleged fraudulent activities of the people like the detenu, then they may not go for such online purchases, which results in affecting the business activities of genuine firms and this will have an adverse impact on the e-commerce of our economy. In the decision reported in STATE OF GUJARAT vs. MOHANLAL JITAMALJI PORWAL6, a Division Bench of the Apex Court, speaking through M.P.Thakker, J (as His Lordship then was) observed as under:
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(1987) 2 SCC 364 8 "The entire community is aggrieved, if the economic offenders, who ruin the economy of the State, are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design, with an eye on personal profit, regardless of the consequences of the community. A disregard for the interest of the community can be manifestly only at the cost of forfeiting the trust and faith of the community on the system to administer justice in an even-handed manner without fear of criticism from the quarters, which view white-collar crimes with a permissive eye, unmindful of the damage done to the national economy and national interest."
20. Having regard to the mode of operation of the detenu and his associates and the four crimes registered in quick succession, the 2nd respondent, in our considered view, has rightly held that detenu is a 'while collar offender' under clause (x) of Section 2 of Act 1 of 1986, and recorded his satisfaction that the activities of the detenu are prejudicial to the maintenance of public order, and that ordinary law will not be sufficient to deal with such illegal activities.
21. From the material on record, it could be seen that out of the four crimes, detenu was granted bail in two cases and he is making efforts for getting bail in other two cases. The detenu is a non-local and in the counter affidavit, the ordeals of the police in tracing the detenu and his associates, and apprehending them, are described. Considering these facts and circumstances, the 2nd respondent held that the there is every possibility of detenu being released from jail on bail, and on such release, there is imminent possibility of his violating the bail condition and go absconding, as he is a non-local, and committing similar offences by evading his apprehension, which would be detrimental to the public order, unless he is prevented from doing so by an order of preventive detention. 9
22. The Apex Court in the decision reported in Subrahmaniah vs. STATE OF TAMILNADU (4 supra), held that the subjective satisfaction reached by the detaining authority, cannot be interfered with by this court, except in exceptional and extremely limited grounds, and that this court cannot substitute its own opinion for that of the detaining authority, and that the sufficient or otherwise of the grounds, is not for this court to determine, and it is for the detaining authority to form subjective satisfaction.
23. In an other decision of the Apex Court in State of Punjab vs. Sukhpal Singh (5 supra), also expressed similar view. For better appreciation, the relevant portion of the order is as under:
"Preventive order is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from so doing. The justification of such detention is suspicious or reasonable probability and not criminal conviction which can only be warranted by legal evidence. Thus, any preventive measures even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the State. . . . . When power is given to an authority to act on certain facts and if that authority acts on relevant facts and arrives at a decision, which cannot be described as either irrational or unreasonable, then the order is not bad and the court cannot substitute the decision or opinion in place of the decision of the authority concerned on the necessity of passing the order."
24. Having regard to the facts and circumstances of the case, we are of the considered view, that the 2nd respondent, in order to prevent the detenu from indulging in similar activities and to protect the society, passed the impugned order of preventive detention by recording his subjective satisfaction, and no grounds are made out for interfering with the same. Hence, in view of the judgments of the Apex Court referred to above (4 and 5 supra), the impugned order of detention cannot be interfered with. 10
25. The facts in the judgment of the Division Bench of this court in K.Suguna vs. State of Telangana (1 supra), relied on by the learned counsel for the petitioner shows that the allegations therein pertain to theft, which may affect the individual concerned, and it will not normally have bearing on the public order, and in those circumstances, the Division Bench held that the detenu can be dealt with under ordinary laws. But, in the present case, the detenu has indulged in white collar offences, by giving false advertisements on OLX and thus cheating gullible people, which has adverse affect on the economy of the country, and thus, his activities were found to be detrimental to the public order. Hence, this judgment cannot be made applicable to the facts of the present case.
26. For the foregoing reasons, the writ petition is devoid of any merits and, the same is accordingly dismissed.
27. Interlocutory applications pending, if any, shall stand closed. No order as to costs.
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A.RAJASHEKER REDDY,J
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DR.SHAMEEM AKTHER,J DATE: 28--04--2021 avs