HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE K. SUJANA
WRIT PETITION No.28680 of 2023
ORDER: (per Hon'ble Sri Justice K. Lakshman)
Heard Smt. B. Mohana Reddy, learned counsel for the petitioner
and Sri Mujib Kumar Sadasivuni, learned Special Government Pleader
representing learned Additional Advocate General appearing for the
respondents. Perused the record.
2. This Writ Petition is filed to direct the respondents to produce Sri Poreddy Thirupathi Reddy S/o. Keshava Reddy, now detained at Central Prison, Cherlapalli, Medchal District, before this Court and he may be ordered to be released forthwith/set at liberty after declaring his detention vide C.No.150/PDC/KNR/2023, dated 19.08.2023 passed by the 2nd respondent and the consequential confirmation order passed by the 1st respondent vide G.O.Rt.No.1357 dated 29.09.2023 as illegal.
3. The impugned detention order dated 19.08.2023 was passed by respondent No.2 relying on solitary crime i.e., Crime No.70 of 2023 pending on the file of P.S.Veenavanka, Karimnagar Police Commissionerate. The offences alleged against the detenu herein are under Sections 8(c) r/w 20 (b) (II) (B) of NDPS Act, 1985. The 2 allegation leveled against the detenu herein is that he has supplied 1000 grams of dry 'Ganja' to accused Nos.1 and 2. Detenu herein is accused No.3 and the said Ganja is recovered from accused Nos.1 and 2.
4. Thus, relying on aforesaid solitary crime, respondent No.2 has issued impugned detention order. There is no dispute that detention order can be passed 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. The Detaining Authority shall come to a subjective satisfaction while issuing the impugned detention order with regard to disturbance caused to the public order. In the present case, there is no consideration of the aforesaid aspects by the respondent No.2/Detaining Authority while issuing the impugned detention order. In fact, 1000 grams of dry 'Ganja' is not a commercial quantity. The only allegation against the detenu herein is that he has supplied the same to accused Nos.1 and 2 and the same was recovered from the accused Nos.1 and 2.
5. In the impugned detention order, there is specific mention about six (06) cases and Detaining Authority referred the same but not relied upon.
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6. Sri Mujib Kumar Sadasivuni, learned Special Government Pleader fairly submits that Commissioner of Police, Ramagundam/Detaining Authority therein has invoked Act 1 of 1986 and issued detention order dated 29.11.2019 relying on aforesaid six (06) cases. The same was under challenge in W.P.No.2375 of 2020 and this Court vide order dated 05.03.2020 set aside the said order. Therefore, respondent No.2/Detaining Authority cannot even refer the aforesaid six (06) cases in the impugned detention order. The aforesaid facts would reveal that the respondent No.2/Detaining Authority has issued the impugned detention order without considering the entire material on record and without application of mind. There is no subjective satisfaction while issuing the impugned detention order.
7. In Mallada K. Sri Ram v. The State of Telangana 1, the Apex Court held that 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". Referring to the principle laid down by it in Ram Manohar Lohia v. State of Bihar and Banka Sneha Sheela v. State of Telangana, the distinction between a disturbance to law and order and a disturbance to public order was discussed. 1 . 2022 SCC OnLine SC 424 4
8. It was observed by the Apex Court that for the last five years, the Apex Court has quashed over five detention orders under the Telangana Act of 1986 for inter alia incorrectly applying the standard for maintenance of public order and relying on stale materials while passing the orders of detention. At least ten detention orders under the Telangana Act of 1986 have been set aside by the Apex Court in the last one year itself. These numbers evince a callous exercise of the exceptional power of preventive detention by the detaining authorities and the respondent - State. Therefore, the Apex Court directed the respondents therein to take stock of challenges to detention orders pending before the Advisory Board, High Court and the Apex Court and evaluate the fairness of the detention order against lawful standards.
9. In Ameena Begum v. The State of Telangana & Others 2, the Apex Court held that "we could have ended our judgment here, but having regard to the arguments advanced at the Bar we wish to deal with the other issues too. This, we are persuaded to do, in order to remind the authorities in the State of Telangana that the drastic provisions of the Act are not to be invoked at the drop of a hat." 2
SLP (CRIMINAL) NO.8510 of 2023 5
10. This Court and Apex Court, time and again, categorically held that detention orders can be passed in rarest of rare cases, that too, to prevent the detenu from committing similar offences. In the present case, the detaining authority has issued impugned detention order without considering the aforesaid aspects.
11. In the light of the aforesaid discussion, according to this Court, impugned detention order dated 19.08.2023 is illegal. It is liable to be set aside and accordingly it is set aside.
12. Therefore, this writ petition is allowed and the detention order vide proceedings No.C.No.150/PDC/KNR/2023 dated 19.08.2023 passed by respondent No.2 is set aside. The respondents are directed to set the detenu viz., Mr. Poreddy Thirupathi Reddy S/o Keshava Reddy, free, if he is no longer required in any other criminal case.
13. The Apex Court in Mallada K. Sri Ram v. The State of Telangana, Ameena Begum v. The State of Telangana & Others and also this Court in Sk.Nafeesa v. The State of Telangana & Others 3 categorically held that respondents are invoking Act 1 of 1986 without application of mind, without consideration of entire material on record 3 W.P.Nos.8486 & batch decided on 14.06.2023 6 and also without coming to the subjective satisfaction as to the alleged acts committed by detenu are disturbing the public order. The Apex Court also warned the respondents herein. Even then, without application of mind, respondent No.2 has issued impugned detention order. Therefore, respondent No.2 is warned not to repeat such acts. 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 October 12, 2023 SSY 7 HON'BLE SRI JUSTICE K. LAKSHMAN AND HON'BLE SMT JUSTICE K. SUJANA W.P.No.28680 of 2023 (Order of a Division Bench delivered by Hon'ble Sri Justice K. Lakshman) October 12, 2023 SSY