HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE K. SUJANA
WRIT PETITION No.24082 OF 2023
ORDER: (Per Hon'ble Sri Justice K. Lakshman)
Heard Mr. Pothamshetti Manoj Kumar, learned counsel for the
petitioner and Mr. V.T. Kalyan, learned counsel representing Mr. Gadi
Praveen Kumar, learned Deputy Solicitor General of India appearing
on behalf of respondent Nos.2 and 3.
2. This writ petition is filed to issue a writ of habeas corpus directing the respondents to release the detenu viz.,, Mastyagiri Keesari alias Naresh S/o Maraiah Keesari, now detained in Central Prison, Cherlapalli, Medchal - Malkajgiri District, by setting aside the order of detention passed by respondent No.2 vide proceedings No.F.No.U-11011/27/2023-PITNDPS, dated 19.07.2023 declaring it as illegal.
3. Respondent No.2 passed the detention order dated 19.07.2023 against the detenu under the provisions of Section - 3 (1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic 2 KL,J & SKS,J W.P. No.24082 of 2023 Substances Act, 1988 (as amended) (for short 'Act,1988) under the category of 'illicit traffic' as defined in Section - 2 (e) .
4. The impugned detention order was passed by respondent No.2 - detaining authority relying on the solitary crime viz., F.No.DRI/HZU/48D/ENQ-48(INT-39)/2022 of Directorate of Revenue Intelligence (DRI), Hyderabad.
5. Mr. Pothamshetti Manoj Kumar, learned counsel for the petitioner, would submit that the impugned detention order was issued without application of mind. The detaining authority did not consider the entire material properly and basing on solitary crime, the detention order was passed which is illegal. As on the date of passing detention order, the detenu continues in judicial custody and, therefore, the apprehension of detaining authority that the detenu may commit similar offences and his acts would disturb 'public order' is baseless.
i) He would further submit that the detenu never involved in any other cases. He is doing private service and regularly transports essential commodities. The detenu is arraigned as accused No.3 in the aforesaid solitary crime, but respondent No.2 did not initiate any proceedings against accused Nos.1, 2 and 4 to 8 under the provisions 3 KL,J & SKS,J W.P. No.24082 of 2023 of the Act, 1988. Accused No.8 was already released on bail. Without considering all the said aspects, respondent No.2 passed the impugned order of detention which is illegal and, therefore, the same is liable to be set aside.
6. On the other hand, Mr. V.T. Kalyan, learned counsel representing learned Deputy Solicitor General of India appearing on behalf of respondent Nos.2 and 3, would submit that the allegations levelled against the detenu are serious and dangerous in nature and he engaged in illicit trafficking of narcotics drugs and psychotropic substances. To prevent him from doing so in future, respondent No.2 has passed the impugned order of detention. The detaining authority, considering the entire material available on record and after arriving at the subjective satisfaction only, passed the detention order in order to prevent the detenu from committing similar offences. Thus, there is no error in it.
7. Perusal of detention order as well as grounds of detention, both dated 19.07.2023 passed by respondent No.2 would reveal that as per the report of DRI, Hyderabad Zonal Unit, the detenu worked as Production Chemist in various companies. With the said experience and background, the detenu learnt the process of manufacturing 4 KL,J & SKS,J W.P. No.24082 of 2023 mephedrone and Ephedrine and he offered the said expertise to others for consideration and had also set up his own manufacturing unit of mephedrone.
8. It is further mentioned in the grounds of detention that the detenu and his associates were involved in the illicit manufacture and sale of mephedrone, a psychotropic substance specified under NDPS Act, 1985 in the premises at Plot No.6P, 7P, Chengicherla, Medipally Mandal, Medchal - Malkajgiri District, Telangana State 500 047. The Officers of DRI in the presence of independent witnesses searched the aforesaid premises and seized a total 24.08 kgs. of off-white/cream colour material in the form of lumps suspected to be 'mephedrone' (valued at Rs.2.00 Crores per kg. in the illicit market), a psychotropic substance specified under the NDPS Act, 1985 and 24.23 kgs. material in powder form and 87.16 kgs. material in paste form, respectively suspected to be semi-finished 'mephedrone'. The DRI also seized machinery/equipment, raw materials/chemicals which are meant for manufacture of mephedrone and a TVS Jupiter two-wheeler with registration No.TS 13EV 7618 suspected to be used for delivery of the said drug.
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9. During the investigation, the detenu confessed that he supplied raw material required for the manufacture of mephedrone. Pursuant to the said confession, the DRI Officials also searched the residential premises of the detenu at H.No.1-118-7/3, 1st floor, Arya Residency, Mallikarjuna Nagar, Boduppal, Medipally Mandal, Telangana State in the presence of independent witnesses and seized a cash of Rs.17,00,000/- of Indian currency, part received from Mr.Santosh Singh (A-1) through hawala and part from sale proceeds of narcotics substances manufactured/traded by the detenu.
10. The detenu in his voluntary statement made to the DRI Officials on 21.12.2022 under Section - 67 of the NDPS Act, 1985 stated that he met one Mr. Brij Bhushan Pandey and Shashi Bhushan Pandey in the Court premises in one murder case and instructed the detenu to meet them in Mumbai. When the detenu met them in Mumbai in the month of September, 2022, they informed him that they wanted to manufacture mephedrone in Hyderabad and requested the detenu to arrange raw materials for the same. Accordingly, Accused No.1 paid certain amount for travelling expenses and also gave a SIM Card for contacting him. After receiving indent from Accused No.1, the detenu arranged the required raw material. 6
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11. Perusal of the record would further reveal that officials of DRI seized the raw material and the premises, where the illicit acts are going on and also incriminating documents in the presence of independent witnesses and thereafter, the detenu and his associates were arrested and they were sent to judicial remand on 22.12.2022. The sample of seized contraband was sent to the Central Forensic Science Laboratory, Directorate of Forensic Science Services, Hyderabad, who in turn, vide its letter dated 14.03.2023, reported that the mephedrone has been detected in the seized samples. After receipt of the said report, the DRI Officials laid the charge sheet before the I Additional District and Sessions Judge - cum - Metropolitan Sessions Judge at Malkajgiri, for the offences punishable under Sections - 22, 23, 27-A, 28 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985, and the same was taken on file as S.C.NDPS No.71 of 2023.
12. Perusal of the record would also reveal that the acts committed by the detenu are serious and grave in nature. During searches in the solitary crime, the DRI Officials seized 136.275 kgs. of mephedrone from the premises where the detenu started his illegal acts. Even cash of Rs.17,00,000/- was also seized and part of it 7 KL,J & SKS,J W.P. No.24082 of 2023 received through hawala and remaining from sale proceeds of narcotic substances manufactured/traded by the detenu. The bail applications filed by the detenu were dismissed considering the seriousness and graveness of the acts committed by him. The detenu has been in judicial remand since 22.12.2022.
13. The detenu is a habitual offender and was involved in the illicit trafficking of psychotropic substances and even successfully brought the substances into the market without being apprehended until the seizure of 136.27 kgs. of mephedrone and he set up an R&D Unit with accused No.1. The detenu was a mastermind by financing and arranging the equipment and raw materials in setting up factory for manufacture of psychotropic substances. He himself set up a separate mephedrone manufacturing unit in Uppal, Hyderabad. Considering all the said aspects, the detaining authority arrived at the conclusion that the acts of detenu would certainly disturb 'public order' and accordingly passed the detention order. In view of the same, the acts of the detenu come under the category of 'illicit traffic' as defined under Section - 2 (e) of the Act, 1988. 8
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14. It is apt to refer to Section - 2 (e) of the Act, 1988 and the same is as under:
"(e) "illicit traffic", in relation to narcotic drugs and psychotropic substances, means--
i) cultivating any coca plant or gathering any portion of coca plant;
ii) cultivating the opium poppy or any cannabis plant;
iii) engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter-State, export inter-State, import into India, export from India or transhipment, of narcotic drugs or psychotropic substances;
iv) dealing in any activities in narcotic drugs or psychotropic substances other than those provided in sub-clauses (i) to
(iii); or
v) handling or letting any premises for the carrying on of any of the activities referred to in sub-clauses (i) to (iv), other than those permitted under the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), or any rule or order made, or any condition of any licence, term or authorisation issued, thereunder and includes--
1) financing, directly or indirectly, any of the aforementioned activities;
2) abetting or conspiring in the furtherance of or in support of doing any of the aforementioned activities; and
3) harbouring persons engaged in any of the aforementioned activities;"
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15. While passing the detention order, the detaining authority not only considered the modus operandi of the detenu in commission of offences, but also considered the allegations levelled against the detenu which are grave and serious in nature. Therefore, in order to prevent the detenu from committing similar offences, the impugned detention order was passed.
16. It is not in dispute that the detaining authority can pass detention order relying on solitary crime. At the same time, the detaining authority shall consider the nature of offence and the manner in which it was committed. He has to consider the entire material on record and come to a subjective satisfaction while issuing detention order. The detaining authority shall consider distinction between 'law and order' and 'public order' and disturbance to the public order due to the acts committed by detenu. In the present case, the detaining authority on consideration of entire material arrived at the subjective satisfaction with regard to disturbance to 'public order' due to the acts committed by the detenu.
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17. The Hon'ble Supreme Court in Ashok Kumar v. Delhi Administration 1 observed that preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing.
18. In Ram Manohar Lohia v. State of Bihar 2, the Apex Court held as under:
"...Does the expression "public order" take in every kind of disorder or only some? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder.
When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The 1 . (1982) 2 SCC 403 2 . AIR 1966 SC 740 11 KL,J & SKS,J W.P. No.24082 of 2023 contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances. It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting public order". One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State."
19. In Banka Sneha Sheela v. State of Telangana 3, the Apex Court held as under:
3 . (2021) 9 SCC 415 12 KL,J & SKS,J W.P. No.24082 of 2023 "13. There can be no doubt that for 'public order' to be disturbed, there must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects 'law and order' but before it can be said to affect 'public order', it must affect the community or the public at large."
"24. 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.
Consequently, it is unnecessary to go into any of the other grounds argued by the learned counsel on behalf of the Petitioner. The impugned judgment is set aside and the Detenu is ordered to be freed forthwith. Accordingly, the appeal is allowed."
20. The detaining authority also considered the modus operandi adopted by the detenu in commission of offence. The detaining authority while invoking the powers under Section - 3 (1) of the Act, 13 KL,J & SKS,J W.P. No.24082 of 2023 1988, has to consider the entire material on record and come to a subjective satisfaction that due to the acts committed by the detenu, nature of offence and the manner in which the same was committed would disturb the public order. To prevent the detenu from committing similar offences, the detaining authority shall issue preventive detention order against the detenu. The Apex Court and this Court has to consider facts and circumstances of each case on case to case basis.
21. As discussed above, the facts of the present case would reveal that the detenu is a habitual offender and was involved in the illicit manufacturing and trafficking of psychotropic substances multiple times and had even successfully brought the substances into the market without being apprehended till he was arrested in the subject crime. Further, the detenu was always acts behind the scene by financing and arranging the equipment and raw material in setting up factory for the manufacture of psychotropic substances. The detenu involved in commission of offences punishable under NDPS Act, 1985 and the DRI Officials seized 136.275 kilograms of mephedrone from the possession of the detenu and his associates. Thus, the acts committed by the detenu are prejudicial activities of 14 KL,J & SKS,J W.P. No.24082 of 2023 illicit traffic of narcotics and psychotropic substances, which poses serious threat to the health and welfare of not only to the citizens of this Country, but also to every citizen in the World, besides deleterious effect on the National Economy. Therefore, the acts of the detenu are interlinked and continuous in character and are of such nature that the same affect security and health of the Nation.
22. Apart from the subject solitary crime, the detenu also involved in Crime No.700 of 2017 registered by Kukatpally Police Station, Cyberabad for the offences punishable under Sections - 147, 148, 364, 302, 201, 109, 114 and 120B read with 149 of IPC and Section - 3 (2) (v) and 3 (2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015. In the said crime, the police after completion of investigation laid the charge sheet and the same was numbered as S.C. 216 of 2021. The detaining authority also referred to the said case in the impugned detention order. The detenu herein is arraigned as accused No.3 in the said S.C. The allegations levelled against him are that the deceased therein i.e., Nerella Chandra Shekhar, who hails from 'SC-Mala' Community is running a glass business under the name and style 'M/s. Shekar Lab Glass works' at Prashanthnagar, Kukatpally. He also 15 KL,J & SKS,J W.P. No.24082 of 2023 deals with drug raw material business and supplies to various companies. He used to purchase raw materials from the accused therein and supply the finished raw material to his customers including one Sohail of Navi Mumbai.
23. As the DRI raided the drugs company of accused Nos.2, 4 and 5 at the premises of M/s. Impress Chemicals, 332, Sector-1, Industrial Area, Pithampur District, Dhar, Madhya Pradesh and seized white crystalline substances bags purported to be 'ephedrine' totally weighing 192.910 kgs. valued at around Rs.38.60 Crores and sealed the said premises and sent them to judicial remand in C.C. No.42 of 2016 of Directorate of Revenue Intelligence, Indore Regional Unit, Indore, Madhya Pradesh, thereby resulted in a huge monetary loss for seizure of narcotic drugs in a bulk. Therefore, accused Nos.4 and 5 therein strongly suspected the role of the deceased and Sohail of Navi Mumbai behind the raid of Narcotic Control Bureau and bore grudge against the deceased and said person. Accordingly determined to eliminate them at any cost, for which accused Nos.2, 4 and 5 formed a gang along with their associates i.e., the detenu herein (accused No.3 therein) and accused Nos.1 and 6 to 12, hatched a plan by offering a big bounty to pay all the gang members. They all conspired together 16 KL,J & SKS,J W.P. No.24082 of 2023 and abetted to kill the deceased and accordingly, killed the deceased brutally and indiscriminately. Perusal of the said charge sheet would also reveal that the detenu and his associates are all hard core professional inter-state dacoits, drug mafia and criminal gang and also having past criminal record of attacking police and escaping from lawful police custody.
24. 'Mephedrone', a Psychotropic Substance, can cause various unintended side effects including dilated pupils, poor concentration, teeth grinding, problems focusing visually, poor short-term memory, hallucinations, delusions and erratic behavior. Injecting the same is dangerous and can lead to overdose or infections, and it can increase chances of heart attack or stroke. Therefore, the said substance was included under the NDPS Act, 1985. The commercial quantity for the said drug is fixed at 50 grams, whereas in the present case, the DRI Officials have seized huge quantity of 136.275 kgs. of mephedrone. Considering the aforesaid past history of the detenu and also the seriousness and graveness of the offence committed by the detenu in the present solitary crime under NDPS Act, 1985, certainly, the acts of the detenu in commission of the aforesaid offence disturb the 'public order' and the same would pose serious threat to the health and 17 KL,J & SKS,J W.P. No.24082 of 2023 welfare of the citizens of the Country. The bail applications filed by the detenu were dismissed by the Designated Court considering the gravity of the offence committed by him. The DRI Officials seized huge quantity of 136.275 kgs. of mephedrone. The detaining authority having considered all the said aspects arrived at the subjective satisfaction and passed the impugned detention order. Therefore, viewed from any angle, we are of the considered view that there is no error in the impugned detention order dated 19.07.2023 passed by respondent No.2. Thus, the writ petition fails and the same is liable to be dismissed.
25. The present writ petition is accordingly dismissed. In the circumstances of the cases, there shall be no order as to costs.
As a sequel, the miscellaneous petitions, if any, pending in the writ petition shall stand closed.
_________________ K. LAKSHMAN, J _________________ K. SUJANA, J 12th October, 2023 Mgr