THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
AND
THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY
WRIT PETITION No.20903 of 2021
ORDER: (Per the Hon'ble the Chief Justice Satish Chandra Sharma)
Learned counsel for the parties fairly state before this Court
that the matter stands concluded on account of judgment delivered
in W.P.No.24374 of 2021 dated 05.10.2021. The order is
reproduced as under:
"Smt. Vijaya Varma, the petitioner herein, has filed this
Habeas Corpus Petition on behalf of her husband, Vagmari
Nagesh Varma @ Toni, S/o. V. Ashok Varma (late), challenging
the detention order passed by the 2nd respondent, vide No.80
/PD-CELL/CYB/2021, dated 05.06.2021, 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 and While Collar of Financial Offenders, Cyber Crime Offenders and White Collar of Financial Offenders Act, 1986 (Act No.1 of 1986) (hereinafter referred to as 'the Act') and the consequential confirmation orders passed by the 1st respondent, vide G.O.Rt.No.1851, General Administration (SPL.(Law & Order) Department, dated 18.08.2021, approving the order of detention, vide G.O.Rt.No.1303, General Administration (SPL.(Law & Order) Department, dated 16.06.2021, as being arbitrary, illegal and unconstitutional and set aside the same and consequently direct the respondents to release the detenu forthwith.
Heard the learned Counsel for the parties and perused the impugned order and the material available on record.
The background of the case, in brief, is that basing on a solitary crime registered against the detenu viz., Crime No.357 of 2021 of Ramachandrapuram Police Station, Cyberabad, 2 registered for the offences punishable under Sections 467, 468, 471, 420, 120 (B) read with 109 of I.P.C., the respondent No.2 passed the impugned detention order, dated 04.06.2021. According to respondent No.2, the detenu is a 'Fake Document Offender', as he is indulging in creation of false documents such as Sale Deed of plot, Aadhar Card and Pan Card etc., and sold the plot to innocent people claiming as he is the owner of the said plot and cheating them and government officials; threaten them with dire consequences when they demand to return the money after knowing about cheating, and thereby acting in a manner prejudicial to maintenance of public order. With a view to prevent the detenu from acting in a manner prejudicial to the maintenance of public order, the impugned detention order, 05.06.2021, was passed, which was approved and confirmed by the 1st respondent.
Learned counsel for the petitioner would contend that the impugned detention order has been passed in a mechanical manner and without application of mind. Already criminal law was set into motion against the detenu. The detenu got conditional bail in the solitary crime relied upon by the detaining authority vide order, dated 02.06.2021, passed in Crl.M.P.No.702 of 2021 on the file of the Spl. Judicial Magistrate of First Class for Prohibition and Excise offences at Sangareddy. But he was again sent to jail by invoking the draconian preventive detention laws on the apprehension that there is imminent possibility of the detenu again indulging in similar prejudicial activities, which is unjustified. The alleged crime does not add up to "disturbing the public order" and it is confined within the ambit and scope of the word "law and order". Thus, there was no need for the detaining authority to invoke the draconian preventive detention law against the detenu. Hence, the impugned orders are legally unsustainable and ultimately, prayed to allow the Writ Petition, as prayed for.
On the other hand, the learned Additional Advocate General appearing for the respondents supported the impugned orders and submitted that the detenu is a 'Fake Document Offender. He has been indulging in creation of fake sale deed documents of open plots, fake Aadhar Cards and Pan Cards in respect of original plot owners embossing the photo of fake owner and using the said documents as genuine for cheating the innocent people. The detenu got conditional bail in the solitary crime relied upon by the detaining authority. Therefore, the apprehension of the detaining authority that there is imminent 3 possibility of the detenu indulging in similar prejudicial activities, which are detrimental to the public order, is not misconceived. Therefore, the detaining authority was legally justified in passing the impugned detention order. Further, the Advisory Board rendered its opinion that there is sufficient cause for detention of the detenu and on considering the same along with the entire material on record, the Government confirmed the impugned detention order vide G.O.Rt.No.1851, dated 18.08.2021. All the mandatory requirements were strictly followed by the detaining authority while passing the impugned detention order. The impugned orders are legally sustainable and ultimately, prayed to dismiss the Writ Petition.
In view of the submissions made by both the sides, the point that arises for consideration is "Whether the detention order, dated 05.06.2021, passed by the 2nd respondent, and the approval and confirmation orders, dated 16.06.2021 and 18.08.2021, passed by the 1st respondent are liable to be set aside or not?"
In catena of decisions, the Apex Court as well as this Court has held that there is a vast difference between "law and order" and "public order". The offences which are committed against a particular individual fall within the ambit of "law and order". It is only when the public at large is adversely affected by the criminal activities of a person, the conduct of a person is said to disturb "the public order". Moreover, individual cases can be dealt with by the criminal justice system. Therefore, there is no need for the detaining authority to invoke the draconian preventive detention laws against an individual. The invoking of such law adversely affects the fundamental right of personal liberty which is guaranteed and protected by Article 21 of the Constitution of India. Hence, according to the Apex Court, the detaining authority should be wary of invoking the immense power under the Act.
The Apex Court in V.Shantha v. State of Telangana and Others1 while considering the various provisions of the Act has held as under:
"The detenu was the owner of Laxmi Bhargavi Seeds, district distributor of Jeeva Aggri Genetic Seeds.
Three FIRs were lodged against the detenu and others under Sections 420, 120-B, 34 IPC and Sections 19 and 21 of the Seeds Act, 1966. It was alleged that chilli seeds sold were spurious, as they did not yield sufficient crops, thus causing wrongful loss to the farmers, and illegal gains to the accused. Whether the seeds were genuine or 1 (2017) 4 SCC 577 4 not, the extent of the yield, are matters to be investigated in the FIRs. Section 19 of the Seeds Act provides for penalty by conviction and sentence also. Likewise, Section 20 provides for forfeiture. Sufficient remedies for the offence alleged were, therefore, available and had been invoked also under the ordinary laws of the land for the offence alleged. The order of preventive detention passed against the detenu states that his illegal activities were causing danger to poor and small farmers and their safety and financial wellbeing. Recourse to normal legal procedure would be time-consuming, and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the Preventive Detention Act as an extreme measure to insulate the society from his evil deeds. The rhetorical incantation of the words "goonda" or "prejudicial to maintenance of public order" cannot be sufficient justification to invoke the Draconian powers of preventive detention. To classify the detenu as a "goonda" affecting public order, because of inadequate yield from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of preventive detention. The grounds of detention are ex facie extraneous to the Act."
The Apex Court further held that preventive detention involves detaining of a person without trial in order to prevent him/her from committing 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 detenu 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 perpetual custody without trial.
It is also appropriate to refer to the decision of the Apex Court in Rekha Vs. State of Tamil Nadu2, wherein it is held as follows:
"23. ....criminal cases are already going on against the detenu under various provisions of the Indian Penal Code as well as under the Drugs and Cosmetics Act, 1940 and if he is found guilty, he will be convicted and given appropriate sentence. In our opinion, the ordinary law of the land was sufficient to deal with this situation, and hence, recourse to the preventive detention law was illegal."
30. Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal."
In the instant case, the detaining authority basing on a solitary crime i.e. Crime No.357 of 2021 of Ramachandrapuram Police Station, Cyberabad, registered for the offences punishable 2 (2011) 5 SCC 244 5 under Sections 467, 468, 471, 420, 120 (B) read with 109 of I.P.C., registered against the detenu for preventively detaining him.
In the Nine-Judge Constitution Bench decision in I.R. Coelho v. State of T.N.3 the Apex Court has observed as follows:
"109. ......It is necessary to always bear in mind that fundamental rights have been considered to be (the) heart and soul of the Constitution.
49. ..... Fundamental rights occupy a unique place in the lives of civilized societies and have been described in judgments as "transcendental", "inalienable", and primordial."
As seen from the material placed on record, the detaining authority relied upon the aforesaid solitary crime for preventively detaining the detenu. Further, the detenu was arrested in connection with the said crime and subsequently, he was granted conditional bail. Under these circumstances, the apprehension of the detaining authority that since the detenu was released on bail, there is imminent possibility of his indulging in similar prejudicial activities, unless he is prevented from doing so by an appropriate order of detention, is highly misconceived. If the detenu is enlarged on bail and violates the conditions of bail or indulges in similar crimes while on bail, the concerned authority/Public Prosecutor is free to move the concerned Court for getting the bail cancelled. If the police are vigilant enough to collect the data relating to the alleged offences and to furnish the relevant information to the learned Public Prosecutor, the same could be placed by the learned Public Prosecutor before the concerned Court. Moreover, criminal law was already set into motion against the detenu. Since the detenu has allegedly committed offences punishable under the Indian Penal Code, the said crime can be effectively dealt with under the provisions of the Penal Code and there was no need for the detaining authority to invoke draconian preventive detention laws. The detaining authority cannot be permitted to subvert, supplant or substitute the punitive law of land, by ready resort to preventive detention.
Grave as the offences may be, they relate to "cheating". So, no inference of disturbance of public order can be drawn. These types of cases can certainly be tried under the normal criminal justice system. And, if convicted, can certainly be punished by the Court of law. Hence, there was no need for the detaining authority to pass the detention order.
32007 (2) SCC 1 6 In Yumman Ongbi Lembi Leima v. State of Manipur4, the Supreme Court, after referring to the case-law on the subject, held as under:-
""23. Having carefully considered the submissions made on behalf of the respective parties, we are inclined to hold that the (sic exercise of) extraordinary powers of detaining an individual in contravention of the provisions of Article 22 (2) of the Constitution was not warranted in the instant case, where the grounds of detention do not disclose any material which was before the detaining authority, other than the fact that there was every likelihood of Yumman Somendro being released on bail in connection with the cases in respect of which he had been arrested, to support the order of detention.
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. An individual incident of an offence under the Penal Code, however heinous, is insufficient to make out a case for issuance of an order of preventive detention."
In Mungala Yadamma v. State of Andhra Pradesh5 the Apex Court held as under:-
"7. Having considered the submissions made on behalf of the respective parties, we are unable to accept the submissions made on behalf of the State in view of the fact that the decision in Rekha's case (supra), in our view, clearly covers the facts of this case as well. The offences complained of against the appellant are of a nature which can be dealt with under the ordinary law of the land. Taking recourse to the provisions of preventive detention is contrary to the constitutional guarantees enshrined in Articles 19 and 21 of the Constitution and sufficient grounds have to be made out by the detaining authorities to invoke such provisions.
9. Preventive detention involves detaining of a person without trial in order to prevent him/her from committing 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 detenu 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 perpetual custody without trial."4
(2012) 2 SCC 176 5 (2012) 2 SCC 386 7 Relying upon the law laid down in Yumman Ongbi Lembi Leima v. State of Manipur (4 supra), recently, the Apex Court in Banka Sneha Suseela v. State of Telangana and others6 held as under:-
"On the facts of this case, as has been pointed out by us, it is clear that at the highest, a possible apprehension of breach of law and order can be said to be made out if it is apprehended that the Detenu, if set free, will continue to cheat gullible persons. This may be a good ground to appeal against the bail orders granted and/or to cancel bail but certainly cannot provide the springboard to move under a preventive detention statute. We, therefore, quash the detention order on this ground."
Having regard to the principles of law laid down by the Apex Court in the judgments referred to above and for the aforesaid reasons, we are of the opinion that the impugned detention order is legally unsustainable.
In the result, the Writ Petition is allowed and the detention order passed by the 2nd respondent, vide No.80 /PD- CELL/CYB/2021, dated 05.06.2021, and the consequential confirmation order of the 1st respondent approving the detention vide G.O.Rt.No.1303, General Administration (SPL. (Law & Order)), Department, dated 16.06.2021 and confirmation order issued in G.O.Rt.No.1851, General Administration (SPL. (Law & Order)), Department, dated 18.08.2021 are hereby set aside. The respondents are directed to set the detenue, namely Vagmari Nagesh Varma @ Toni S./o. V. Ashok Varma (late), at liberty forthwith, if he is no longer required in any other criminal case.
The Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed. There shall be no order as to costs."
In the light of the aforesaid order, the Writ Petition is allowed and the order of detention passed by the 2nd respondent, vide PD Act No.73/PD-CELL/CYB/2021 dated 04.06.2021 and the consequential confirmation order of the 1st respondent approving the detention vide G.O.Rt.No.1657, dated 24.07.2021 are hereby set aside. The respondents are directed to set the detenu, namely Irfan @ Md. Wasi Uzzaman, S/o. Md. Jameeluzzaman, at liberty forthwith, if he is no longer required in any other criminal case.
6Crl.A.No.733 of 2021, SC, dt. 02.08.2021 8 The miscellaneous petitions, if any, pending in this Writ Petition shall stand closed. There shall be no order as to costs.
__________________________________ SATISH CHANDRA SHARMA, CJ ______________________________ A. RAJASHEKER REDDY, J 20.10.2021 ES Note: Issue CC today.