THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY
AND
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
WRIT PETITION No.2165 of 2021
ORDER: (Per the Hon'ble Dr. Justice Shameem Akther)
Mr. Bukhari Kishen Rahul Singh, the petitioner, has filed this
Habeas Corpus petition on behalf of his brother, Ritesh Singh, S/o.
late Sudheer Singh, aged about 24 years, the detenu, challenging the
detention order vide SB (I)No.205/PD-2/HYD/2020, dated
29.10.2020, passed by the respondent No.2-Commissioner of Police,
Hyderabad City, wherein, the detenu was detained 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, Fertilizer Offenders, Food Adulteration Offenders, Fake Document offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders & White Collar or Financial Offenders Act, 1986 (for short, "P.D. Act") and the consequential confirmation order vide G.O.Rt.No.120, General Administration (Spl. (Law & Order)) Department, dated 12.01.2021, passed by the Principal Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana.
2. Heard the submissions of Sri A.Prabhakar Rao, learned counsel for the petitioner, Sri T.Srikanth Reddy, learned Government Pleader for Home representing the learned Additional Advocate General for the respondents and perused the record.
ARR, J & Dr.SA, J WP No.2165/2021 2
3. The background of the case, in brief, is that by relying two criminal cases registered against the detenu in Crime Nos.316/2019 and 70/2020 of Mangalhat Police Station, Hyderabad, the respondent No.2-Commissioner of Police, Hyderabad, passed the impugned detention order, dated 29.10.2020. According to the respondent No.2, the detenu is a 'drug offender', as he has been indulging in highly dangerous activities of peddling 'ganja', a narcotic drug, among the people in the limits of Hyderabad Police Commissionerate, duly endangering the lives of youth and innocent people, causing irreparable damage to their body organs, including the Central Nervous System and thereby, crippling the mental and physical health of the people addicted to drugs. With a view to prevent the detenu from damaging the health of general public, especially youth, by supplying 'Ganja', which is prejudicial to maintenance of public order, the impugned detention order, dated 29.10.2020, was passed, which was confirmed by the Government, by order, dated 12.01.2021. Hence, this Writ Petition before this Court.
4. The learned counsel for the petitioner vehemently contended that the impugned detention order is illegal, arbitrary, unconstitutional, improper, against the principles of natural justice and has been passed in a mechanical manner and without application of mind. The detenu is falsely implicated in the cases relied by the detaining authority. The alleged criminal activities of the detenu, in any event, would not satisfy the word 'drug offender'. The detaining authority has not applied its mind to the facts and circumstances of the case, while passing the impugned detention order. The detenu was granted conditional bail in both the crimes relied by the detaining ARR, J & Dr.SA, J WP No.2165/2021 3 authority. Hence, there was no need to invoke the draconian preventive detention laws against the detenu, since the detenu would be well within the surveillance of police. Further, the detenu has been complying the bail conditions. The conditions imposed in the bail orders were sufficient to prevent the detenu from fleeing from justice. Thus, the impugned detention order is vitiated by non- consideration of the bail conditions. In case the detenu had violated the bail conditions, the sponsoring authority could have taken steps for cancellation of bail. Instead, the sponsoring authority gave a requisition to the detaining authority for passing the detention order. Further, the subjective satisfaction recorded by the detaining authority for preventively detaining the detenu is vague and not based on any material. Further, the detaining authority failed to furnish the material relied upon by it to the detenu in the language known to him, i.e., Hindi, which deprived the detenu to exercise his constitutional right of making a representation to the authorities. Moreover, the cases alleged against the detenu do not add up 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 Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act'), the detenu can certainly be tried under the said special law. Thus, there was no need for the detaining authority to invoke the draconian preventive detention laws. Hence, the impugned detention order tantamounts to colourable exercise of power. Preventive detention cannot be made a substitute to punitive detention. The detaining authority has to be extremely careful while passing the detention order, since the detention ipso facto adversely affects the fundamental right of personal liberty enjoyed by the ARR, J & Dr.SA, J WP No.2165/2021 4 people under Article 21 of the Constitution of India. Thus, the detention order is legally unsustainable and ultimately, prayed to set aside the same and allow the writ petition as prayed for. In support of his contentions, the learned counsel had relied on the following decisions.
1. M.Ahamedkutty Vs. Union of India (UOI) and others1
2. Ramesh Yadav Vs. District Magistrate, Etah and others2
3. Binod Singh Vs. District Magistrate, Dhanbad and others3
4. Anitha Bai Vs. State of Telangana and others4
5. Santhosh Singh Vs. State of Telangana and others5
6. Smt. Sneha Singh Vs. State of Telangana and others6
7. Nakka Srinu Vs. State of Telangana and others7
8. Md.Naseem Vs. State of Telangana and others8
5. On the other hand, Sri T.Srikanth Reddy, the learned Government Pleader for Home, appearing for the respondents, supported the impugned detention order and submitted the detenu has been indulging in grave and dangerous activities of peddling 'Ganja', a narcotic substance, duly endangering the lives of youth and causing irreparable damage to their body organs including Central Nervous System and thereby, crippling the health of those who are addicted to drugs. The unlawful activities of the detenu were causing widespread danger to the public health and were detrimental to the public order. In the first crime, i.e., Crime No.316/2019, the police seized 21 Kgs of 'Ganja' and in the second crime, i.e., Crime No.70/2020, the police seized 22 Kgs of 'Ganja' from the possession of the detenu and his associate. Free sale of drugs not just impacts individuals and their health, but also adversely affects the society at large. If the youth gets caught in a 1 1990 (2) SCC 1 2 (1985) 4 SCC 232 3 (1986) 4 SCC 416 4 Decided on 12.04.2021 in W.P.No.1657 of 2021 by the High Court for the State of Telangana 5 Decided on 23.04.2021 in W.P.No.1691 of 2021 by the High Court for the State of Telangana 6 Decided on 18.02.2019 in W.P.No.38082 of 2018 by the High Court for the State of Telangana 7 Decided on 26.12.2019 in W.P.No.20904 of 2019 by the High Court for the State of Telangana 8 Decided on 09.11.2018 in W.P.No.32398 of 2018 by the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh ARR, J & Dr.SA, J WP No.2165/2021 5 trap of drug addiction, they slowly begin to disobey the law and commit petty crimes, in order to ensure constant supply of drugs to themselves and eventually become physically and financially, a burden to the society itself. Therefore, sale of drugs by drug offenders adversely affects a large segment of society and hence, it disturbs the maintenance of public order. Further, the detenu stated that he studied up to intermediate in English medium and requested the detaining authority to provide him English translated copies of the detention order, grounds of detention and the documents relied upon. Accordingly, the detenu was served with the English translated copies within the mandatory period and the detenu acknowledged the receipt of the same by signing each page in English. Further, the two crimes relied upon for detaining the detenu were committed by him in quick succession. In spite of his arrest and remand in the first crime, he did not mend his attitude and continued to commit similar offences after his release on bail. With a view to prevent the detenu from further indulging in such dangerous activities in the interest of the society, the impugned detention order was passed. The subjective satisfaction reached by the detaining authority in preventively detaining the detenu is not tainted or illegal. Further, the Advisory Board, in its review meeting held on 14.12.2020, upon hearing the detenu and the concerned investigating officials and upon considering the entire material placed before it, rendered its opinion that there is sufficient cause for detention of the detenu. On considering the opinion of the Advisory Board and upon considering the entire material, the Government confirmed the impugned detention order vide G.O.Rt.No.120, dated 12.01.2021. Therefore, the detaining authority was legally justified ARR, J & Dr.SA, J WP No.2165/2021 6 in passing the impugned detention order. All the mandatory provisions and the safeguards envisaged under the law were strictly followed, while passing the impugned detention order and hence, the impugned detention order does not suffer from illegality or impropriety and ultimately, prayed to dismiss the Writ Petition.
6. In view of the submissions made by both sides, the point that arises for determination in this Writ Petition is:
"Whether the impugned detention order, dated 29.10.2020, passed by respondent No.2 and the consequential confirmation order, dated 12.01.2021, passed by the Principal Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana, are liable to be set aside?"
7. POINT: Briefly, the facts of the case are that by relying on two criminal cases registered against the detenu in Crime Nos.316/2019 and 70/2020 of Mangalhat Police Station, Hyderabad, the respondent No.2-Commissioner of Police, Hyderabad City, passed the detention order, dated 29.10.2020. According to the respondent No.2, the detenu is a 'drug offender' and has been habitually indulging in illegal activities of peddling narcotic drugs, duly endangering the lives of youth and innocent people, causing irreparable damage to their body organs including the Central Nervous System and thereby, crippling the mental and physical health of the people addicted to drugs and acting in a manner prejudicial to the maintenance of public order and health as well. The detenu is a potential threat to the maintenance of public order in general and public health in particular. In the two cases relied upon by the detaining authority, the detenu was granted conditional bail by this Court. In order to prevent the detenu from ARR, J & Dr.SA, J WP No.2165/2021 7 indulging in such illegal activities, which are detrimental to the public order, the impugned detention order, dated 29.10.2020, was passed, which was confirmed by the Government by order, dated 12.01.2021.
8. The material placed on record reveals that the detenu-Ritesh Singh, S/o. late Sudheer Singh, who is alleged to be a 'drug offender', has been habitually indulging in procuring 'Ganja' to sell the same to youth and people addicted to drugs to make easy and illegal money and lead a lavish life in the limits of Hyderabad Police Commissionerate. His illegal activities have caused widespread danger to the public health. The detaining authority relied on two cases for preventively detaining the detenu. We shall present them 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.
Date of Date of
S. Occurrence registration
Crime No. Offence Nature
No. of FIR
Section 8 (c) read
with 20 (b) (ii)
316/2019 of
(C) of NDPS Act Cognizable/
1. Mangalhat Police 28.12.2019 28.12.2019
Non-bailable
Station
Qty: 21 kgs
of Ganja
Section 8 (c) read
with 20 (b) (ii)
70/2020 of
(C) of NDPS Act Cognizable/
2. Mangalhat Police 23.03.2020 23.03.2020
Non-bailable
Station
Qty: 22 kgs of
Ganja
9. As seen from the material placed on record, in Crime No.316/2019, 21 kilograms of Ganja was seized from the possession of the detenu and his associate. In Crime No.70/2020, 22 kgs of ganja was seized from the possession of the detenu and his associate. In Crime No.316/2019, the detenu voluntarily confessed to be in possession of Ganja and has been selling Ganja at higher ARR, J & Dr.SA, J WP No.2165/2021 8 price to the needy and prospective customers to earn easy illegal money. In Crime No.70/2020, the detenu voluntarily confessed that he and his associate purchased 22 kilograms of Ganja @ Rs.6,000/- per kilogram on 17.03.2020 from their associate Ramana, resident of Visakhapatnam, Andhra Pradesh, and were carrying the same in two travel bags to sell the same to the needy/prospective customers to make easy money. In Crime No.316/2019, the detenu was arrested on 28.12.2019. He moved first bail petition on 02.01.2020, which was dismissed by the Court concerned. Then, he moved second bail petition before this Court on 21.01.2020 and this Court granted conditional bail to him vide order, dated 29.01.2020, passed in Criminal Petition No.441 of 2020, and he was released from jail vide Release Order Dis No.424/2020, dated 31.01.2020. After his release on conditional bail in Crime No.316/2019, the detenu was again caught possessing Ganja and was arrested on 23.03.2020 and a second case in Crime No.70/2020 was registered against him. He moved first bail petition in the said crime on 23.04.2020, which was dismissed by the Court concerned. He moved second bail petition before this Court on 07.05.2020 and this Court granted conditional bail to him vide order, dated 21.05.2020, passed in Criminal Petition No.2183 of 2020 and he was released from jail vide Release Order Elec.Dis.No.15/2020, on 27.05.2020.
10. The learned counsel for the petitioner, placing reliance on M.Ahamedkutty's case (1 supra), vehemently argued that non- consideration of the conditional bail orders granted to the detenu vitiates the detention order and that the conditions imposed while granting bail are sufficient to prevent the detenu from fleeing from justice. Similar contention was raised before a Division Bench of this ARR, J & Dr.SA, J WP No.2165/2021 9 Court in Muppidi Swapna Vs. State of Telangana and others9, wherein, it was held as follows:
The learned counsel for the detenu argued with lot of emphasis that some of the bail orders are conditional and therefore the nature of the conditions was very much relevant for respondent No.2 to consider whether they were sufficient to prevent the detenu from fleeing from justice and that non-consideration of the conditional bail orders has vitiated the detention order. We are afraid, we cannot accept this submission because irrespective of whether the bail orders contained conditions or not, respondent No.2 has arrived at the subjective satisfaction that in spite of his arrest in connection with the criminal cases, the detenu is repeating his activities after being released on bail. This necessarily means that the detaining authority was not only aware of the fact that the detenu was released on bail in all the cases, but also the fact that the ordinary laws set in motion have proved inefficacious. Even the learned counsel for the detenu has not placed before the Court the bail orders which purportedly contained conditions. In any event, the facts of the case, reveal that irrespective of the alleged conditions of bail, the detenu continued his alleged illegal activities which is manifest from the fact that as many as seven criminal cases were registered against him in succession, clearly showing that the alleged conditions of bail did not deter the detenu from repeating his alleged illegal activities.
11. In the instant case also, grant of conditional bail to the detenu was specifically referred in the detention order and a copy of the conditional bail order along with other relevant material were supplied to the detenu. When the detaining authority had noticed grant of bail on conditions and a copy of the said orders have been served on the detenu to make a representation before the authorities concerned, it cannot be said that the detaining authority had not taken into consideration the conditions imposed while grating bail to the detenu. The detaining authority, having examined the material against the detenu including grant of conditional bail, was pleased to pass the impugned detention order. Further, the material placed on record reveal that the detenu committed first crime, i.e., Crime No.316 of 2019 on 28.12.2019 and he was granted conditional bail by this Court on 29.01.2020 vide Criminal Petition No.441 of 2020 and he was released from jail on 31.01.2020. In the said bail order, one 9 2016 SCC Online Hyd 551 ARR, J & Dr.SA, J WP No.2165/2021 10 of the conditions is that the detenu shall not indulge in similar activities in future. But after release from jail, the petitioner committed similar second crime, i.e., Crime No.70 of 2020 on 23.03.2020. It establishes that the detenu had patently violated the bail conditions imposed in the first crime and those conditions did not deter him from committing second similar crime, wherein, substantial quantity of ganja was seized from the possession of the detenu and his associate. Further, in Kamarunnissa v. Union of India10, the Hon'ble Apex Court held that if an authority passes an order after recording its satisfaction, such an order cannot be struck down ostensibly on the ground that the proper course for the authority was to oppose the bail and seek cancellation of bail.
12. The learned counsel for the petitioner placed strong reliance over the judgment in M.Ahmedkutty's case (1 supra) in support of his contention that non-consideration of bail order would amount to non-application of mind. Similar contention was raised before a Division Bench of this Court in Naresh Singh Vs. State of Telangana and others11, wherein, it was held as follows:
"But a close scrutiny of the judgment in M.Ahmedkutty (supras) goes to show that the issue before the Hon'ble Supreme Court was whether the detaining authority considered the Supreme Court's interim order in pending appeal against High Court's quashing of a previous order of detention against the same detenu was considered or not. While dealing with the said issue, the Hon'ble Supreme Court held as under:
"25. Non-consideration of the bail order would have therefore, in this case, amounted to non- application of mind. In Union of India v. Manoharlal Narang [(1987) 2 SCC 241] the Supreme Court's interim order in pending appeal against High Court's quashing of a previous order of detention against the same detenu was not considered by the detaining authority while making the impugned subsequent order against him. It was held that non-
consideration of the interim order which constituted a relevant and important material was fatal to the subsequent detention order on ground of non-application of mind. If the detaining authority considered that order one could not state 10 (1991) 1 Supreme Court Cases 128 11 Decided on 05.03.2020 in W.P.No.502 of 2020 by the High Court for the State of Telangana ARR, J & Dr.SA, J WP No.2165/2021 11 with definiteness which way his subjective satisfaction would have reacted and it could have persuaded the detaining authority to desist from passing the order of detention."
Thus, in the aforementioned case, the Hon'ble Supreme Court was not dealing with the issue regarding consideration of conditions imposed in the bail order by the detaining authority, but that aspect was not brought to the notice of the Division Bench in WP No.38082 of 2018, wherein the said order was passed basing on the order in W.P.No.32398 of 2018, dated 09.11.2018. The said distinction was not noticed by the Division Bench in W.P.No.32398 of 2018. In the instant case, as stated supra, conditional bail orders passed in favour of the detenu were considered by the detaining authority. When bail orders were considered, it cannot be said that the conditions imposed in the said order were not considered."
13. In the instant case, in view of the facts and circumstances and specific mention of grant of conditional bails to the detenu in the impugned detention order, it cannot be said that the detaining authority did not consider the conditions imposed while granting bail orders in favour of the detenu. So, the contention of the petitioner that the impugned detention order is vitiated by non-consideration of the bail conditions cannot be accepted.
14. Further, it is apt to state that preventive detention is different from punitive detention. While punitive detention could be enforced under ordinary criminal law, the law of preventive detention can be enforced against habitual offenders to prevent them from committing the future similar offences, which are detrimental to the public interest, disturbing the even tempo of life and causing damage to public health. The legal parameters for testing the validity of 'preventive detention' fundamentally vary from that of 'punitive detention'.
15. In the case of Madhu Limaye Vs. Sub-Divisional Magistrate12. The Hon'ble Apex Court held as follows:
"The acts which disturb public tranquility or are breaches of the peace should not be given a narrow meaning, but should be given 12 (1970) 3 SCC 746 ARR, J & Dr.SA, J WP No.2165/2021 12 a liberal interpretation. For the expression 'in the interest of public order' is very wide amplitude."
16. In the case of Commissioner of Police & Others Vs. C.Anita (Smt.)13, the Hon'ble Apex Court examined the issue of "public order" and "law and order" and observed as follows:
"The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression "law and order" is wider in scope inasmuch as contravention of law always affects order, "public order" has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of "law and order" and "public order" is one of the degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of the public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting "public order" from that concerning "law and order". The question to ask is: "Does it lead to disturbance of the current 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?" This question has to be faced in every case on its facts."
17. As per the clause (f) of Section 2 of the P.D.Act, a "drug offender" means a person, who manufactures, stocks, imports, exports, sells or distributes any drug or cultivates any plant or does any other thing in contravention of any of the provisions of the Drugs and Cosmetics Act, 1940 (Central Act XXIII of 1940), or the Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985) and the rules, notification and orders made under either Act, or in contravention of any other Law for the time being in force, or who knowingly expends or applies any money in furtherance or support of the doing of any of the above mentioned things by himself or through any other person, or who abets in any other manner the doing of any such thing.
13
(2004) 7 SCC 467 ARR, J & Dr.SA, J WP No.2165/2021 13
18. The personal liberty of an individual, which the law preserves and protects, can also be taken away by following the procedure established by law, when it is used to jeopardize the public good. In the instant case, the commission of alleged offences as indicated in the above table clearly demonstrates that the detenu, along with his associate, clandestinely indulging in procuring 'Ganja' to sell the same to youth and people addicted to drugs to make easy money and lead a lavish life, which would certainly disturb the public peace and tranquility. As mentioned above, the detenu, instead of mending himself, committed similar offence after his release on conditional bail in the first crime. So it is imperative upon the officers concerned to pass the order of detention, since the acts of the detenu are prejudicial to the maintenance of public order. The detaining authority had sufficient material to record subjective satisfaction that the detention of the detenu was necessary to maintain public order and even tempo of life of the community. The order of detention does not suffer from any illegality. The grounds of detention, as indicated in the impugned order, are found to be relevant and in tune with the provisions of the P.D. Act. Since the detenu was granted conditional bail in both the cases relied by the detaining authority, there is nothing wrong on the part of the detaining authority in raising an apprehension that there is possibility of the detenu committing similar offences, which would again certainly affect the public health at large. Though the learned counsel for the petitioner contended that the detenu was not supplied with the documents relied upon by the detaining authority in the language known to him, i.e., Hindi, the said contention has been refuted by the respondents in the counter contending that the detenu studied up to intermediate ARR, J & Dr.SA, J WP No.2165/2021 14 in English medium and he requested the detaining authority to provide him English translated copies of the detention order, grounds of detention and the documents relied upon and accordingly, the detenu was served with the English translated copies within the mandatory period and the detenu acknowledged the receipt of the same by signing each page in English. There is no reply by the petitioner disputing the said contention. Moreover, in the course of submissions, the learned counsel for the petitioner has not pressed this point. Therefore, it is deemed that the detenu has been supplied with the copies of the documents relied by the detaining authority in the language known to him, i.e., English. Moreover, the said contention cannot be a ground to set aside the impugned detention order. The subjective satisfaction reached by the detaining authority is not tainted or illegal on any account. The acts of the detenu cannot be effectively dealt with under special law.
19. Before parting, as righty observed by this Court in Naresh Singh's case (11 supra), the menace of drug abuse and proliferation of drug trade is an open secret. Drug abuse is not only confined to the urban centres, but has even spread to rural areas. It is common knowledge that drug problems are rampant amongst the youth. The easy availability of drugs has distorted the lives of the many young men and women in our society. In order to ensure a steady supply of drugs for themselves, these young men and women are prone to commit petty offences. The illegal money earned in this activity fuels the other nefarious activities. Therefore, what may patently appear to be a "law and order" problem, on a deeper analysis, emerges as a "public order" problem. Hence, while dealing with preventive detention cases qua offences committed under the NDPS Act, the ARR, J & Dr.SA, J WP No.2165/2021 15 Courts have to be vigilant with regard to the impact of such offences on the society at large. Thus, the learned counsel for the petitioner is unjustified in claiming that the two cases registered against the detenu should be seen as "law and order" problem and not as a "public order" problem.
20. Under these circumstances, the detaining authority is justified in passing the impugned detention order. We do not see any merit in this Writ Petition and as such, it is liable to be dismissed.
21. The Writ Petition is, accordingly, dismissed. There shall be no order as to costs.
Miscellaneous petitions pending, if any, in this Writ Petition, shall stand closed.
____________________ A.RAJASHEKER REDDY, J ____________________ Dr. SHAMEEM AKTHER, J 10th August, 2021 Bvv