HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE K. SUJANA
WRIT PETITION No.24896 of 2023
ORDER: (per Hon'ble Sri Justice K. Lakshman)
Heard Sri Pasham Trivikram Reddy, learned counsel for the
petitioner and Sri G.Mallesham, learned Assistant Government
Pleader representing learned Additional Advocate General
appearing for the respondents. Perused the record.
2. The impugned detention order dated 28.07.2023 was passed by respondent No.2 relying on solitary crime i.e., Crime No.289 of 2023 registered against the detenu for the alleged offences punishable under Sections 8(c) r/w 20 (b) (II) (B) and Section 27 of NDPS Act, 1985 by Police, Kushaiguda Police Station, Medchal Malkajgiri District. The allegation leveled against the detenu is that he has possessed 20 grams of 'Methamphetamine Drug' illegally. He was arrested on 05.03.2023. The bail application filed by him was dismissed on 27.06.2023.
3. In the impugned detention order, though there is specific mention about Crime No.95 of 2022 for the offence under Section 2 20 (B) (II) of NDPS Act, 1985, it was not relied upon. The allegation leveled against the detenu is that he has possessed 500 grams of 'Ganja' illegally. The said quantity is not a commercial quantity.
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. In the present case, there is no consideration of the said aspects by the respondent No.2/Detaining Authority while issuing the impugned detention order.
5. 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 1 . 2022 SCC OnLine SC 424 3 Sneha Sheela v. State of Telangana, the distinction between a disturbance to law and order and a disturbance to public order was discussed.
6. 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.
7. In Ameena Begum v. The State of Telangana & Others 2, the Apex Court held that "we could have ended our judgment here, 2 SLP (CRIMINAL) NO.8510 of 2023 4 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."
8. 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.
9. In the light of the aforesaid discussion, according to this Court, impugned detention order dated 28.07.2023 is illegal. It is liable to be set aside and accordingly it is set aside.
10. Therefore, this writ petition is allowed and the detention order vide proceedings No.35/PD-CELL/RCKD/2023 dated 28.07.2023 passed by respondent No.2 is set aside. The respondents are directed to release the detenu viz., Mr. Varikuppula Rithwik Raj S/o V.Anand on production of copy 5 of the bail order in crime No.289 of 2023 on the file of PS Kushaiguda. 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 September 08, 2023 SSY 6 HON'BLE SRI JUSTICE K. LAKSHMAN AND HON'BLE SMT JUSTICE K. SUJANA W.P.No.24896 of 2023 (Order of a Division Bench delivered by Hon'ble Sri Justice K. Lakshman) September 08, 2023 SSY