THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY
AND
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
WRIT PETITION No.7161 of 2021
ORDER: (Per the Hon'ble Dr. Justice Shameem Akther)
Mr. Mohammed Amjad, the petitioner, has filed this Habeas
Corpus petition on behalf of his son, Mohd. Arbaaz @ Arbaz, aged
21 years, the detenu, challenging the detention order vide SB
(I)No.155/PD-3/HYD/2020, dated 16.12.2020, 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.437, General Administration (Spl. (Law & Order)) Department, dated 24.02.2021, passed by respondent No.1.
2. Heard the submissions of Sri C.Sharan Reddy, 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.7161/2021 2
3. The background of the case, in brief, is that by relying three criminal cases registered against the detenu in Crime Nos.202/2019 and 278/2020 of Falaknuma Police Station and Crime No.174/2020 of Kalapathar Police Station, the respondent No.2-Commissioner of Police, Hyderabad, passed the impugned detention order, dated 16.12.2020. According to the respondent No.2, the detenu is a 'Goonda'. He, acting as a leader of a criminal gang, committed offences including brutal murder, attempt to murder with rioting and criminal intimidation using lethal weapons, along with your associates, in an organized manner in the limits of Hyderabad Police Commissionerate, and thus created panic, terror and fear in the minds of general public, thereby disturbing the public order and peace and tranquility in the area. The unlawful activities of the detenu have been causing a feeling of insecurity in the minds of public on a regular basis, which is prejudicial to the maintenance of public order. With a view to prevent the detenu from acting in the manner which is prejudicial to the maintenance of public order, the impugned detention order, dated 16.12.2020, was passed, which was confirmed by the Government, by order, dated 24.02.2021. Hence, this Writ Petition before this Court.
4. The learned counsel for the petitioner vehemently contended that the impugned detention order is vague, irrelevant, 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 'goonda'. The detaining authority has not ARR, J & Dr.SA, J WP No.7161/2021 3 applied its mind to the facts and circumstances of the case, while passing the impugned detention order. The detenu was granted conditional bail in Crime Nos.202/2019 and 278/2020 and statutory/mandatory bail in Crime No.174/2020 by the Courts concerned. 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 and did not violate 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. Further, the subjective satisfaction recorded by the detaining authority for preventively detaining the detenu is based on insufficient material. 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 Indian Penal Code and Indian Arms Act, the detenu can certainly be tried under the Penal Code and 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 people under Article 21 of the Constitution of India. Thus, the detention order is legally ARR, J & Dr.SA, J WP No.7161/2021 4 unsustainable and ultimately, prayed to set aside the same and allow the writ petition as prayed for.
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, along with his associates, has been indulging in grave and dangerous activities of murder, attempt to murder with rioting and criminal intimidation using lethal weapons, in an organized manner. The unlawful activities of the detenu were creating large scale fear, terror and panic among the people and thereby, adversely affecting the public order. In the first crime, i.e., Crime No.202/2019, the detenu, along with his associates, attacked the complainant therein with a sickle on his abdomen causing bleeding injuries. In the second crime, i.e., Crime No.278/2020, the detenu attacked the complainant therein and gave fist blows on his face and pushed him down due to which, the complainant sustained injury on his lips and right elbow. In the third crime, i.e., Crime No.174/2020, the detenu, in order to avenge the murder of his brother, attacked the complainant therein with coconut cutting sickle on his head and other parts of body causing multiple chop and stab injuries. The said person succumbed to injuries while undergoing treatment. Further, the three crimes relied upon for detaining the detenu were committed by him in quick succession. In spite of his arrest and remand in two crimes, he did not mend his attitude and continued to commit similar third offence after his release on bail on conditions. With a view to prevent the detenu from further indulging in such dangerous activities in the interest ARR, J & Dr.SA, J WP No.7161/2021 5 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 21.01.2021, 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.437, dated 24.02.2021. Therefore, the detaining authority was legally justified 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 16.12.2020, passed by respondent No.2 and the consequential confirmation order, dated 24.02.2021, passed by the respondent No.1 are liable to be set aside?"
7. POINT: As per the record, by relying on three criminal cases registered against the detenu in Crime Nos.202/2019 and 278/2020 of Falaknuma Police Station and Crime No.174/2020 of Kalapathar Police Station, the respondent No.2-Commissioner of ARR, J & Dr.SA, J WP No.7161/2021 6 Police, Hyderabad City, passed the impugned detention order, dated 16.12.2020. According to the respondent No.2, the detenu is a 'goonda'. He, acting as a leader of a criminal gang, committed offences including brutal murder, attempt to murder with rioting and criminal intimidation using lethal weapons, along with your associates, in an organized manner, in the limits of Hyderabad Police Commissionerate, and thus created panic, terror and fear in the minds of general public, thereby disturbing the public order and peace and tranquility in the area. The detenu is a potential threat to the maintenance of public order. In the three cases relied upon by the detaining authority, the detenu was granted conditional bail in two crimes and statutory/mandatory bail in one crime by the Courts concerned. In order to prevent the detenu from indulging in such illegal activities, which are detrimental to the public order, the impugned detention order, dated 16.12.2020, was passed, which was confirmed by the Government by order, dated 24.02.2021.
8. The material placed on record also reveals that the detenu- Mohd.Arbaaz @ Arbaz, S/o. Mohd. Amjad, is alleged to be a 'goonda' and has been habitually indulging in the acts of goondaism on a regular basis and has been causing a feeling of insecurity in the minds of public in the limits of Hyderabad Police Commissionerate and his illegal activities have been adversely affecting the maintenance of public order and peace in the area. The detaining authority relied on three 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 ARR, J & Dr.SA, J WP No.7161/2021 7 complained of and their nature, such as bailable/non-bailable or cognizable/non-cognizable.
Date of Date of
S. Crime Occurrence registration Offence Nature
No. No. of FIR
Section 147, 148 -
Cognizable/
202/2019 of Sections 147,
Bailable
1. Falaknuma 02.07.2019 03.07.2019 148, 452, 307
Sections 452, 307
Police Station r/w 149 of IPC
: Cognizable/
Non-Bailable
Section 323 : Non
Cognizable/
Bailable
Sections 323,
278/2020 of Section 506 :
506 of IPC and
2. Falaknuma 23.06.2020 24.06.2020 Cognizable/
Section 25(1-B)
Police Station Non-Bailable
of Arms Act
Section 25(1-B) of
Arms Act :
Cognizable/Bailable
Section 147, 148 -
Cognizable/
Bailable
Section 120B :
Sections 147, Non-Cognizable/
148, 120B, 302, Bailable
174/2020 of 506 r/w 149 Section 302 :
3. kalapathar 20.07.2020 20.07.2020 r/w 109 of IPC Cognizable/
Police Station and Section Non-Bailable
25(1-A) of Section 506 :
Arms Act Cognizable/
Non-Bailable
Section 25(1-A) of
Arms Act :
Cognizable/Bailable
9. In the first crime, i.e., Crime No.202 of 2019, it is alleged that on 02.07.2019, the detenu, in order to avenge the murder of his brother, attacked the complainant with a sickle, but the complainant managed to escape from the scene and ran towards his aunt's house. The detenu chased him and once again attacked the complainant in order to kill him, causing bleeding injuries. The complainant managed to get into his aunt's house and bolted the door from inside. The detenu and his associates tried to enter the house to kill the complainant, but when the aunt of the complainant confronted them, they fled away from the scene. In the second crime, i.e., Crime No.278 of 2020, while the complainant was closing his pan shop, the detenu and his ARR, J & Dr.SA, J WP No.7161/2021 8 associates went to the pan shop in drunken condition and asked for pan masala and cigarettes. When the complainant refused to give the same without payment of money, the detenu and his associate got angry and scattered the items in the pan shop. When the complainant tried to stop them, they gave blows on his face and pushed him down due to which, the complainant sustained injury on his lips and right elbow. The detenu and his associate threatened the complainant with dire consequences and ran away. In the third crime, i.e., Crime No.174 of 2020, the detenu, in order to avenge the murder of his brother, conspired with his associates to eliminate one Shanoor Ghazi. In furtherance of their plan, on the intervening night of 19/20.07.2020 at about 0020 hours, the detenu and his associates tried to surround Shanoor Ghazi by standing in the by-lanes. When Shanoor Ghazi noticed them and started running, one of the associates of the detenu chased him and poured chilli powder in the eyes of Shanoor Ghazi. Another associate of the detenu kicked Shanoor Ghazi from behind due to which, he fell down. Immediately the detenu attacked Shanoor Ghazi indiscriminately with a coconut cutting sickle on his head and other parts of body causing multiple chop and stab injuries. On seeing the brother of Shanoor Ghazi approaching the detenu and his associates, they fled from the scene on their two wheelers. Immediately, Shanoor Ghazi was shifted to Osmania General Hospital, where, he succumbed to injuries while undergoing treatment. The above incidents indicate that the detenu is a person of violent character and the criminal acts of the detenu had terrorized the local people and created panic.
ARR, J & Dr.SA, J WP No.7161/2021 9
10. In the first crime, i.e., Crime No.202/2019, the detenu was arrested on 06.07.2019. Immediately, the detenu moved bail petition on 15.07.2019 and he was granted conditional bail by the Court concerned on 22.07.2019 and he was released from jail vide Release Order Dis.No.1242/XVI ACMM/HYD/2019, dated 23.07.2019. In the second crime, i.e., Crime No.278/2020, the detenu was arrested on 24.06.2020. The detenu moved bail petition on 25.06.2020 and he was granted conditional bail by the Court concerned on 27.06.2020 and he was released from jail vide Release Order Dis.No.53/Online/XVIACMMHyderabad/2020, dated 29.06.2020. In the third crime, i.e., Crime No.174/2020, the detenu was arrested on 24.07.2020. The detenu moved bail petition on 23.10.2020 and he was granted bail statutory/mandatory bail by the Court concerned on 28.10.2020 and he was released on bail vide Release Order Dis.No.476/SPL.JFCM/Excise/HYD/2020, dated 29.10.2020.
11. The learned counsel for the petitioner 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 Court in Muppidi Swapna Vs. State of Telangana and others1. However, those were rejected by this Court holding 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 1 2016 SCC Online Hyd 551 ARR, J & Dr.SA, J WP No.7161/2021 10 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.
12. 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 in the first two cases 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. It is apt to state that the detenu, after release on conditional bail in first crime, committed the second crime; and after release on conditional bail in second crime, committed the third crime. It establishes that the conditions imposed in the bail orders of the first two crimes did not deter him from committing third grave offence of murder. Further, in Kamarunnissa v. Union of India2, the Hon'ble Apex Court 2 (1991) 1 Supreme Court Cases 128 ARR, J & Dr.SA, J WP No.7161/2021 11 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.
13. The learned counsel for the petitioner further contended 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 others3, 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 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."3
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.7161/2021 12
14. 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.
15. 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'.
16. In the case of Madhu Limaye Vs. Sub-Divisional Magistrate4. 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 a liberal interpretation. For the expression 'in the interest of public order' is very wide amplitude."
17. In the case of Commissioner of Police & Others Vs. C.Anita (Smt.)5, 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 4 (1970) 3 SCC 746 5 (2004) 7 SCC 467 ARR, J & Dr.SA, J WP No.7161/2021 13 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."
18. As per the clause (g) of Section 2 of the P.D.Act, a "goonda" means a person, who either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code.
19. 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 despite grant of conditional bails by the Courts concerned in the first two cases, he did not mend his attitude and committed third crime, which is more grievous in nature. So it is imperative upon the officers concerned to pass the order of detention, since the acts of the detenu created terror and panic in the locality, which is prejudicial to the maintenance of public order. Therefore, the contention raised on behalf of the detenu that the three criminal cases registered ARR, J & Dr.SA, J WP No.7161/2021 14 against the detenu should be seen as 'law and order problem' only and the conditions imposed while granting bail in the first two crimes were not considered by the detaining authority, are unsustainable. Further, it is evident from the record that the detenu committed the three crimes relied upon by the detaining authority in quick succession. Here, it is apt to refer to the decision of the Hon'ble Apex Court in Subrahmanian Vs. State of Tamil Nadu6, wherein, it was held as follows:
It is well settled that the court does not interfere with the subjective satisfaction reached by the detaining authority except in exceptional and extremely limited grounds. The court cannot substitute its own opinion for that of the detaining authority when the grounds of detention are precise, pertinent, proximate and relevant, that sufficiency of grounds is not for the court but for the detaining authority for the formation of subjective satisfaction that the detention of a person with a view to preventing him from acting in any manner prejudicial to public order is required and that such satisfaction is subjective and not objective. The object of the law of preventive detention is not punitive but only preventive and further that the action of the executive in detaining a person being only precautionary, normally, the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct in an exhaustive manner. The satisfaction of the detaining authority, therefore, is considered to be of primary importance with certain latitude in the exercise of its discretion.
20. In the instant case, 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 pertinent, proximate, relevant and in tune with the provisions of the P.D. Act. In view of the facts and circumstances of the case, even the grant of conditional bail to the detenu in the first two crimes and statutory bail in the third crime would not make the detention order unsustainable on any 6 2012 (4) SCC 699 ARR, J & Dr.SA, J WP No.7161/2021 15 score. 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 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 the provisions of Indian Penal Code and the special law.
21. 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.
22. 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