THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
WRIT PETITION Nos.33464, 33475 and 33484 of 2021
COMMON ORDER: (Per Hon'ble Dr. Justice Shameem Akther)
Though the petitioners in these three Writ Petitions are
different, since the issue involved in these writ petitions is one and
the same and since the detenus in these writ petitions are the
accused in the same crime, all these Writ Petitions are being taken
up together and are being disposed of by way of this common
order.
2. W.P.No.33464 of 2021 is filed by Mrs. Shabana Kousar, who
is the wife of the detenu, namely Mohd.Azher Ali, W.P.No.33475 of
2021 is filed by Mrs. Shahana Begum, who is the wife of detenu,
namely Shaik Ashraf Pasha, and W.P.No.33484 of 2021 is filed by
Mrs. Ayesha Begum, who is the wife of the detenu, namely Mohd.
Mahzer Ali, challenging the separate detention orders of the even
date, dated 01.11.2021, passed by respondent No.1-Commissioner
of Police, Hyderabad, vide SB (I) No.328/PD-3/HYD/2021, SB(I) No.331/PD-3/HYD/2021 and SB(I) No.329/PD-3/HYD/2021 respectively, and the consequential confirmation orders of the even date, dated 28.01.2022, passed by the Principal Secretary to Government, General Administration (Spl. (Law & Order)) Dr.SA,J & JS,J WP Nos.33464/2021 & batch 2 Department, Government of Telangana, vide G.O.Rt.Nos.192, 195 and 193 respectively. Vide impugned detention orders, the respective detenus were detained under Section 3(2) of the Telangana Preventive Detention Act, 1986 (Act 1 of 1986).
3. We have heard the submissions of Sri Mohammed Abdul Wahab, learned counsel for the petitioners in all these writ petitions, Sri T.Srikanth Reddy, learned Government Pleader for Home appearing for the learned Additional Advocate General for the respondents and perused the record.
4. The background facts of the case, in brief, is that by relying on a solitary crime registered against the detenus in these writ petitions in Crime No.441 of 2021 of Chandrayangutta Police Station, Hyderabad Commissionerate, registered for the offence under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act'), the respondent No.1-Commissioner of Police, Hyderabad, passed the impugned detention orders of the even date, dated 01.11.2021. According to the respondent No.1, the detenus are 'drug offenders', as they have 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 Dr.SA,J & JS,J WP Nos.33464/2021 & batch 3 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 detenus from damaging the health of general public, especially youth, by supplying 'Ganja', which is prejudicial to maintenance of public order, the impugned detention orders of the even date, dated 01.11.2021 were passed, which were confirmed by the Government by the orders of the even date, dated 28.01.2022. Hence, these writ petitions before this Court.
5. The learned counsel for the petitioners in these writ petitions vehemently contended that the impugned detention orders are illegal, arbitrary, unconstitutional, improper, against the principles of natural justice and has been passed in a mechanical manner and without application of mind. The detenus are falsely implicated in the solitary crime relied by the detaining authority. The alleged criminal activities of the detenus, 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 orders. The bail petitions of the detenus in the solitary crime relied by the detaining authority are pending consideration before the Courts concerned. Thus, the Dr.SA,J & JS,J WP Nos.33464/2021 & batch 4 detenus continue to be in judicial custody as on the date of passing of the impugned detention orders. Under these circumstances, the apprehension of the detaining authority that the there is every possibility of grant of bail to the detenus and their release on bail from judicial remand soon and on such release, there is imminent possibility of the detenus committing similar offences, which would be detrimental to the public order, unless they are prevented from doing so by an appropriate order or detention, is highly misplaced. Further, the solitary crime relied by the detaining authority does not add up to "disturbing the public order" and it is confined within the ambit and scope of the word "law and order". Since the offence alleged is under the NDPS Act, the detenus can certainly be tried and convicted under the said special law. Thus, there was no need for the detaining authority to invoke the draconian preventive detention law against the detenus. Hence, the impugned orders tantamount to colourable exercise of power. The subjective satisfaction recorded by the detaining authority in detaining the detenus is tainted and illegal. 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 Dr.SA,J & JS,J WP Nos.33464/2021 & batch 5 Article 21 of the Constitution of India. Thus, the impugned detention orders are legally unsustainable and ultimately, prayed to set aside the same and allow the writ petitions as prayed for.
6. On the other hand, the learned Government Pleader for Home appearing for the respondents, supported the impugned detention orders and submitted the detenus have 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 detenus were causing widespread danger to the public health and were detrimental to the public order. In the solitary crime relied by the detaining authority, i.e., Crime No.441 of 2021, the police seized a huge quantity of 400 kgs of ganja from the detenus. Free sale of drugs not just impacts individuals and their health, but also adversely affects the society at large and hence, it disturbs the maintenance of public order. With a view to prevent the detenus from indulging in similar prejudicial activities, the impugned detention orders were passed. The subjective satisfaction reached by the detaining authority in preventively detaining the detenus is not tainted or illegal. Further, the Advisory Board, upon hearing Dr.SA,J & JS,J WP Nos.33464/2021 & batch 6 the detenus 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 detenus. On considering the opinion of the Advisory Board and upon considering the entire material, the Government confirmed the impugned detention orders, vide orders of the even date, dated 28.01.2022. Therefore, the detaining authority was legally justified in passing the impugned detention orders. All the mandatory provisions and the safeguards envisaged under the law were strictly followed, while passing the impugned detention orders and hence, the impugned detention orders do not suffer from illegality or impropriety and ultimately, prayed to dismiss the Writ Petition.
7. In view of the submissions made by both sides, the point that arises for determination in these Writ Petitions is:
"Whether the impugned detention orders of the even date, dated 01.11.2021 passed by the respondent No.1 and the consequential conformation orders of the even date, dated 28.01.2022, passed by the Principal Secretary to Government (Spl. (Law & Order)) Department, Government of Telangana, are liable to be set aside?"
Dr.SA,J & JS,J WP Nos.33464/2021 & batch 7 POINT:-
8. In catena of cases, the Hon'ble Supreme Court had clearly opined that there is a vast difference between "law and order" and "public order". The offences committed against a particular individual fall within the ambit of "law and order" and when the public at large is adversely affected by the criminal activities of a person, such activities of that person are 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. Hence, according to the Hon'ble Apex Court, the detaining authority should be wary of invoking the immense power under the Act.
9. In Ram Manohar Lohia v. State of Bihar1, the Hon'ble Supreme Court has, in fact, deprecated the invoking of the preventive law in order to tackle a law and order problem. It was observed that every breach of public peace and every violation of law may create a 'law and order' problem, but does not necessarily create a problem of 'public order'. The distinction has to be borne in mind in view of what has been stated in the grounds of detention.
1 AIR 1966 SC 740 Dr.SA,J & JS,J WP Nos.33464/2021 & batch 8
10. In Kanu Biswas v. State of West Bengal2, the Hon'ble Apex Court, while discussing the meaning of word 'public order,' held that 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 extent of the reach of the act upon the Society.
11. In a recent judgment in Banka Sneha Sheela Vs. State of Telangana3, the Hon'ble Apex Court held as follows:
32. 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 Detenue, 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..."
12. In another recent judgment in Mallada K Sri Ram Vs. State of Telangana4, the Hon'ble Apex Court, while referring to its earlier decisions in Banka Sneha Sheela's case (1 supra), Sama Aruna Vs. State of Telangana5 and Ram Manohar Lohia Vs. State of Bihar6 held that a "A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the "maintenance of public order.... the personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding. The powers of preventive detention are exceptional and even draconian. Tracing their origin to the colonial era, they have been continued 2 (1972) 3 SCC 831 3 (2021) 2 Supreme Court Cases 415 4 2022 SCC Online SC 424 5 (2018) 12 Supreme Court Cases 150 6 AIR 1966 SC 740 Dr.SA,J & JS,J WP Nos.33464/2021 & batch 9 with strict constitutional safeguards against abuse. Article 22 of the Constitution was specifically inserted and extensively debated in the Constituent Assembly to ensure that the exceptional powers of preventive detention do not devolve into a draconian and arbitrary exercise of state authority. The case at hand is a clear example of non-application of mind to material circumstances having a bearing on the subjective satisfaction of the detaining authority. The two FIRs which were registered against the detenue are capable of being dealt by the ordinary course of criminal law."
13. In the instant cases, the detaining authority, basing on a solitary crime indicated above, has passed the impugned detention orders of the even date, dated 01.11.2021. We shall present it in a tabular form the date of occurrence, the date of registration of FIR, the offence complained of and its nature, such as bailable/non-bailable or cognizable/non-cognizable.
Date of Date of
Sl. Occurrence registration
Crime No. Offence Nature
No. of FIR
Section 20 (b)
(ii) (C) of NDPS
441/2021 of
Act Cognizable/
1. Chandrayanguta 02.09.2021 02.09.2021
Non-bailable
Police Station
Qty: 400 kgs of
Ganja
14. As seen from the material placed on record, the solitary crime relied upon by the detaining authority for preventively detaining the detenus relate to peddling of ganja. The detenus were arrested in connection with the said crime on 02.09.2021 and remanded to judicial custody. Subsequently, the detenus moved three bail petitions in the subject crime, which were dismissed by the Court concerned and their fourth bail petition is pending consideration before the Courts concerned, as on the date of Dr.SA,J & JS,J WP Nos.33464/2021 & batch 10 passing impugned detention order. Under these circumstances, the apprehension that there is every possibility of granting bail to the detenus and their release from judicial custody and on such release, there is imminent possibility of committing similar offences, which would be detrimental to public order unless they are prevented from doing so by an appropriate order of detention, is highly misplaced. It is the bounden duty of the Police to inform the learned Public Prosecutor about the conduct of the detenus and to handover the entire case record available against the detenus. The police are supposed to be vigilant in collecting the whole data against the detenus and furnish the same to the Public Prosecutor/Additional Public Prosecutor to defeat the bail applications of the detenus. Further, a mere apprehension of 'breach of law and order' is not sufficient to meet the standard of adversely affecting the 'maintenance of public order'. In the instant case, if it is apprehended that the detenus, if set free, would continue to indulge in similar offences, that 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 the preventive detention statute. Moreover, criminal law was already set into motion against the detenus. Since the detenus have allegedly committed offence punishable under the NDPS Act, Dr.SA,J & JS,J WP Nos.33464/2021 & batch 11 the said crime can be effectively dealt with under the provisions of the said Special law and there was no need for the detaining authority to invoke draconian preventive detention laws. The subject cases do not fall within the ambit of the words "public order" or "disturbance of public order". Instead, they fall within the scope of the words "law and order". Hence, there was no need for the detaining authority to pass the impugned detention order. Under these circumstances, the subjective satisfaction recorded by the detaining authority in detaining the detenus can be said to be tainted with malice. The personal liberty of an accused cannot be sacrificed on the altar of preventive detention, merely because a person is implicated in a criminal proceeding. Article 22 of the Constitution was specifically inserted and extensively debated in the Constituent Assembly to ensure that the exceptional powers of preventive detention do not devolve into a draconian and arbitrary exercise of state authority. 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 detenu under Article 21 of the Constitution of India. The detaining authority cannot be permitted to subvert, supplant, or substitute the punitive law of land, by ready resort to preventive detention. Further, as held in Vijay Dr.SA,J & JS,J WP Nos.33464/2021 & batch 12 Narain Singh v. State of Bihar7, a single act or omission cannot be characterized as a habitual act because, the idea of 'habit' involves an element of persistence and a tendency to commit or repeat similar offences, which is patently not present in the instant case. In view of the facts and circumstances of the case, it is not a fit case to apply the preventive detention laws and detain the detenus, curtailing the liberty guaranteed under Article 21 of the Constitution of India.
15. Even while passing the confirmation order, dated 28.01.2022, the Principal Secretary to Government, General Administration (Spl. (Law & Order)), Government of Telangana, has failed to notice that the detenus continue to languish as under-trial in the jail. Once the detenus were already confined, the question of confirming the detention orders would not even arise.
16. For the foregoing reasons, the impugned orders are legally unsustainable and are liable to be set aside.
17. In the result, the Writ Petitions are allowed. The impugned detention orders of the even date, dated 01.11.2021, passed by respondent No.1-Commissioner of Police, Hyderabad, vide SB(I) No.328/PD-3/HYD/2021, SB(I) No.331/PD-3/HYD/2021 and SB(I) 7 (1984) 3 SCC 14 Dr.SA,J & JS,J WP Nos.33464/2021 & batch 13 No.329/PD-3/HYD/2021 respectively, and the consequential confirmation orders of the even date, dated 28.01.2022, passed by the Principal Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana, vide G.O.Rt.Nos.192, 195 and 193 respectively, are hereby set aside. The respondents are directed to set the detenus, namely, Mohd.Azher Ali, S/o. Mohd.Qasim; Shaik Ashraf Pasha, S/o. Mahaboob Pasha; and Mohd.Mahzer Ali, S/o. Mohd.Qasim Ali, at liberty forthwith, if they are no longer required in any criminal case.
Miscellaneous Petitions, if any, pending in these writ petitions, shall stand closed. There shall be no order as to costs.
____________________ Dr. SHAMEEM AKTHER, J _________________ JUVVADI SRIDEVI, J 13th September, 2022 Bvv