Telangana High Court
Bodapati Laxmi vs The State Of Telangana on 5 June, 2024
Author: P.Sam Koshy
Bench: P. Sam Koshy
THE HON'BLE SRI JUSTICE P. SAM KOSHY
AND
THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU
WRIT PETITION No.12064 of 2024
ORDER:
(per the Hon'ble Sri Justice P.SAM KOSHY) Heard Ms. R. Sowmya Reddy, learned counsel for the petitioner and Mr. Swaroop Oorilla, learned Special Government Pleader on behalf of the learned Additional Advocate General, for the respondents.
2. The present writ petition has been filed by the petitioner aggrieved by the order passed by respondent No.2/The Collector and District Magistrate (Executive), Nalgonda, dated 30.06.2023 under Sub-Section (2) of Section 3 of "The Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Insecticide Offenders, Fertiliser 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 White Collar or Financial Offenders Act, 1986" (In short, the 'Act of 1986').
3. Invoking the said provision of law, the respondent No.2 vide the impugned order of preventive detention has detained the husband of Page 2 of 16 the petitioner, and have ordered to be lodged in Central Prison, Cherlapalli.
4. While passing the impugned preventive detention order, the respondent No.2 had taken into consideration the involvement of the petitioner along with his associates in crime No.67 of 2023 for the offence registered under Section 376(D), 394, 411 read with 34 of the Indian Penal Code, 1860 (for short, 'IPC') registered at Peedavora Police Station of Nalgonda District. Taking into consideration the alleged act on the part of the petitioner, the impugned preventive detention order has been passed.
5. The ground reality is that in respect of the said crime, the bail application moved by the petitioner before the Trial Court which has since been rejected, the petitioner as such is still languishing in jail. Though the co-accused in the same offence has already been released on bail and there was a similar preventive detention order passed by the same respondent No.2 passed on the same date i.e. on 30.06.2023 which has been quashed by the Hon'ble Supreme Court in the case of Vaddi Lakshmi vs. State of Telangana 1 decided on 20.03.2024. 1 Criminal Appeal No. 1723 of 2024 (Arising out of SLP (Crl. ) No. 14859 of 2023) Page 3 of 16
6. Relying upon the said decision of the Hon'ble Supreme Court in respect of the co-accused, the learned counsel for the petitioner contended that the impugned preventive detention order herein also deserves to be quashed on the ground of parity itself, as the Hon'ble Supreme Court on identical set of facts have quashed the impugned preventive detention order. Secondly, it was contended by the learned counsel for the petitioner that since the detenu was already languishing in jail and his bail application already got rejected, there was no occasion for respondent No.2, to have, at this juncture passed the impugned preventive detention order, as the detenue was already under judicial custody. Thirdly, it was contended by the learned counsel for the petitioner that plain reading of the impugned order itself would show that in fact there was only a solitary criminal case which has been relied upon by respondent No.2 while passing the impugned preventive detention order and only because the detenu is an accused in a solitary criminal case by itself is not sufficient enough to invoke the provisions of the Act of 1986 under which the impugned order has been passed.
7. It is the contention of the learned counsel for the petitioner that the crime which has been taken into account by respondent No.2 while passing the preventive detention order is totally insignificant so as to pass an order of preventive detention against the husband of the Page 4 of 16 petitioner. It was further contended that the impugned order is bad in law for the reason that the nature of crime said to have been taken into account by the Collector and District Magistrate was not in connection with the public order, but was offence which may otherwise fall under the law and order situation. Thus, in the given said circumstances, the order of detention is totally un-called for and is liable to be set- aside/quashed.
8. It was the further contention of the learned counsel for the petitioner that the impugned order is also bad in law for the reason that the mandatory requirement in law before passing the order of preventive detention was not available with the authority concerned, nor have the mandatory requirements complied with while passing the order. On this ground also, the impugned preventive detention order is liable to be quashed.
9. Lastly it was contended by the learned counsel for the petitioner that the impugned order per se is unsustainable in the light of the recent decision of the Hon'ble Supreme Court in the case of Nenavath Bujji Etc. vs. The State of Telangana and Ors. 2, and for all the aforesaid reasons, the impugned order may be interdicted. 2 Criminal Appeal Nos. 1738-39 of 2024 Page 5 of 16
10. On the other hand, according to the learned Special Government Pleader, the detenu has a series of criminal track record against him where he was involved in offences related to rape, criminal trespass, extortion, mischief and criminal intimidation and presently the detenu is in jail in respect of the aforesaid offences. However, in the event if he is released, there is all possibility of peace and tranquility so also the law and order and public order getting disturbed and there would also be a constant threat of the detenu repeating these very offences detrimental to the general public at large and the society in general.
11. Before we delve into the merits of the case, it would be relevant at this juncture, to refer to a three Judge Bench decision of the Hon'ble Supreme Court in the case of Nenavath Bujji (supra). The said judgment also arose from the State of Telangana whereby similar order had been passed by the District Magistrate in respect of the two appeals which were jointly heard by the Hon'ble Supreme Court and wherein also the nature of offences which were recorded against the detenu in the said appeals before the Hon'ble Supreme Court where of similar nature. The Hon'ble Supreme Court in the aforesaid judgment in paragraph Nos.30 to 32 has held as under:
"30. It is the duty of the Court to issue this writ to safeguard the freedom of the citizen against arbitrary and illegal detention. Habeas corpus is a remedy designed to facilitate the release of Page 6 of 16 persons detained unlawfully, not to punish the person detaining and it is not, therefore, issued after the detention complained of has come to an end. It is a remedy against unlawful detention. It is issued in the form of an order calling upon the person who has detained another, whether in prison or in private custody, to 'have the body' of that other before the Court in order to let the Court know on what ground the latter has been confined and thus to give the Court an opportunity of dealing with him as the law may require. By the writ of habeas corpus, the Court can cause any person who is imprisoned to be brought before the Court and obtain knowledge of the reason why he is imprisoned and then either set him free then and there if there is no legal justification for the imprisonment, or see that he is brought speedily to trial. Habeas Corpus is available against any person who is suspected of detaining another unlawfully and not merely against the police or other public officers whose duties normally include arrest and detention. The Court must issue it if it is shown that the person on whose behalf it is asked for is unlawfully deprived of his liberty. The writ may be addressed to any person whatsoever an official or a private individual-who has another in his custody. The claim (for habeas corpus) has been expressed and pressed in terms of concrete legal standards and procedures. Most notably, the right of personal liberty is connected in both the legal and popular sense with procedures upon the writ of habeas corpus. The writ is simply a judicial command directed to a specific jailer directing him or her to produce the named prisoner together with the legal cause of detention in order that this legal warrant of detention might be examined. The said detention may be legal or illegal. The right which is sought to be enforced by such a writ is a fundamental right of a citizen conferred under Article 21 of the Constitution of India, which provides:--"
"Article 21. Protection of life and personal liberty.-- No person shall be deprived of his life or personal liberty except according to the procedure established by law."
31. We are of the view that mere registration of the two FIRs for the alleged offences of robbery etc. could not have been made the basis to invoke the provisions of the Act 1986 for the purpose of preventively detaining the appellant herein on the assumption that he is a "GOONDA" as defined under Section 2(g) of the Act 1986. What has been alleged against the appellant detenu could be said to have raised the problems relating to law and order but we find it difficult to say that they impinged on public order. This Court has time and again, reiterated that in order to bring the activities of a person within the expression of "acting in any manner prejudicial to the maintenance of public order" the activities must be of such a nature that the ordinary laws cannot deal with them or prevent Page 7 of 16 subversive activities affecting society. Inability on the part of the state's police machinery to tackle the law and order situation should not be an excuse to invoke the jurisdiction of preventive detention.
32. The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression 'law and order' is wider in scope inasmuch as contravention of law always affects order, 'Public order' has a narrower ambit, and could be affected by only such contravention, which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of 'law and order' and 'public order' is one of degree and extent of the reach, of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only. In other words, the true distinction between the areas of law and order and public order lies not merely in the nature or quality of the act, but in the degree and extent of its reach upon society. Acts similar in nature, but committed in different contexts and circumstances, might cause different reactions. In one case it might affect specific individuals only, and therefore touches the problem of law and order only, while in another it might affect public order. The act by itself, therefore, is not determinant of its own gravity. In its quality it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very different. [See: Union of India v. Amrit Lal Manchanda, (2004) 3 SCC 75.]"
12. Further, the Hon'ble Supreme Court in paragraph Nos.35 and 36 has held as under:
i. Extraneous Considerations that weighed with the Detaining Authority thereby vitiating the Order of Preventive Detention.
"35. We take notice of the fact that in the case on hand, the Detaining Authority has laid much stress on the fact that in the year 2023 in quick succession four FIRs came to be registered against the appellant for the offence of theft, robbery etc. However, the Detaining Authority took into consideration only two FIRs registered for the offences said to have committed within his Page 8 of 16 territorial jurisdiction. The Detaining Authority in its order of detention has clearly stated that he has taken into consideration only the two FIRs registered for the alleged offence committed within his territorial jurisdiction. The Detaining Authority in clear terms has stated that he could not have made the other two FIRs referred to in the order of detention as the basis for arriving at the subjective satisfaction that the activities of the appellant detenu are prejudicial to the maintenance of the public order. However, after saying so, the Detaining Authority has in so many words stated that the other two FIRs have been considered to look into the criminal history of the appellant detenu.
36. We are of the view that in the aforesaid context, the Detaining Authority is not correct and he could be said to have taken into consideration something extraneous."
13. In the case of Ameena Begum vs. State of Telangana and Others 3 poised with similar circumstances and situation, the Hon'ble Supreme Court in paragraph Nos.50 to 53 has held as under:
"50. Considering past criminal history, which is proximate, by itself would not render an order illegal. The Commissioner in the detention order made pointed reference to the detenu being a habitual offender by listing 10 (ten) criminal proceedings in which the detenu was involved during the years 2019-2020, consequent to which the detenu was preventively detained under the Act vide order of detention dated 4-3-2021, since quashed by the High Court by its order dated 16-8-2021 [Hakeem Khan v. State of Telangana, 2021 SCC OnLine TS 3663]. It is then stated therein that the detenu had committed 9 (nine) offences in the years 2022- 2023, and these offences are again listed out in detail. However, the Commissioner states that the present order of detention is based only on 5 (five) out of these 9 (nine) crimes, which are alleged to show that the detenu's activities are "prejudicial to the maintenance of public order, apart from disturbing peace and tranquillity in the area".
51. Interestingly, even in Para 9-E of his counter-affidavit, the Commissioner has extracted a portion of the detention order which we have set out in para 4. The reiteration of considering past 3 (2023) 9 SCC 587 Page 9 of 16 criminal history of the detenu is not without its effect, as we shall presently discuss.
52. In Khudiram Das [Khudiram Das v. State of W.B., (1975) 2 SCC 81 : 1975 SCC (Cri) 435] , while examining the "history sheet" of the detenu, this Court had, in express terms, clarified that a generalisation could not be made that the detenu was in the habit of committing those offences. Merely because the detenu was charged for multiple offences, it could not be said that he was in the habit of committing such offences. Further, habituality of committing offences cannot, in isolation, be taken as a basis of any detention order; rather it has to be tested on the metrics of "public order", as discussed above. Therefore, cases where such habituality has created any "public disorder" could qualify as a ground to order detention.
53. Although the Commissioner sought to project that he ordered detention based on the said 5 (five) FIRs, indication of the past offences allegedly committed by the detenu in the detention order having influenced his thought process is clear. With the quashing of the order of detention dated 4-3-2021 by the High Court and such direction having attained finality, it defies logic why the Commissioner embarked on an elaborate narration of past offences, which are not relevant to the grounds of the present order of detention. This is exactly what this Court in Khaja Bilal Ahmed [Khaja Bilal Ahmed v. State of Telangana, (2020) 13 SCC 632 : (2020) 4 SCC (Cri) 629] deprecated. Also, as noted above, this Court in Shibban Lal Saksena [Shibban Lal Saksena v. State of U.P., (1953) 2 SCC 617 : AIR 1954 SC 179] held that such an order would be a bad order, the reason being that it could not be said in what manner and to what extent the valid and invalid grounds operated on the mind of the authority concerned and contributed to his subjective satisfaction forming the basis of the order."
(Emphasis supplied)
14. In yet another case of similar nature which arose from the State of Telangana in Shaikh Nazeen vs. State of Telangana and others 4, the Hon'ble Supreme Court in paragraph Nos.11 and 19 has held as under:
4
(2023) 9 SCC 633 Page 10 of 16 "11. The detention order was challenged by the wife of the detenu in a habeas corpus petition before the Division Bench of the Telangana High Court. The ground taken by the petitioner before the High Court was that reliance has been taken by the Authority of four cases of chain snatching, as already mentioned above. The admitted position is that in all these four cases the detenu has been released on bail by the Magistrate. Moreover, in any case, the nature of crime as alleged against the petitioner can at best be said to be a law and order situation and not the public order situation, which would have justified invoking the powers under the preventive detention law.
This, however did not find favour with the Division Bench of the High Court, which dismissed the petition, upholding the validity of the detention order.
xxx xxx xxx
19. In any case, the State is not without a remedy, as in case the detenu is much a menace to the society as is being alleged, then the prosecution should seek for the cancellation of his bail and/or move an appeal to the Higher Court. But definitely seeking shelter under the preventive detention law is not the proper remedy under the facts and circumstances of the case."
(Emphasis supplied)
15. The Hon'ble Supreme Court elaborately considering the matters referring to preventive detention in the case of Shaikh Nazeen (supra) has summarized and concluded by observing as under:
ii. Summary of the Findings.
"43. We summarize our conclusions as under: -
(i) The Detaining Authority should have taken into
consideration only relevant and vital material to arrive at the requisite subjective satisfaction,
(ii) It is an unwritten law, constitutional and administrative, that wherever a decision-making function is entrusted to the subjective satisfaction of the statutory functionary, there is an implicit duty to apply his mind to the pertinent and proximate matters and eschew those which are irrelevant & remote,
(iii) There can be no dispute about the settled proposition that the detention order requires subjective satisfaction of the detaining Page 11 of 16 authority, which ordinarily, cannot be questioned by the court for insufficiency of material. Nonetheless, if the detaining authority does not consider relevant circumstances or considers wholly unnecessary, immaterial and irrelevant circumstances, then such subjective satisfaction would be vitiated,
(iv) In quashing the order of detention, the Court does not sit in judgment over the correctness of the subjective satisfaction. The anxiety of the Court should be to ascertain as to whether the decision-making process for reaching the subjective satisfaction is based on objective facts or influenced by any caprice, malice or irrelevant considerations or non-application of mind,
(v) While making a detention order, the authority should arrive at a proper satisfaction which should be reflected clearly, and in categorical terms, in the order of detention,
(vi) The satisfaction cannot be interfered by mere statement in the order that "it was necessary to prevent the detenu from acting in a manner prejudicial to the maintenance of public order". Rather the detaining authority will have to justify the detention order from the material that existed before him and the process of considering the said material should be reflected in the order of detention while expressing its satisfaction,
(vii) Inability on the part of the state's police machinery to tackle the law and order situation should not be an excuse to invoke the jurisdiction of preventive detention,
(viii) Justification for such an order should exist in the ground(s) furnished to the detenu to reinforce the order of detention. It cannot be explained by reason(s) / ground(s) not furnished to the detenu. The decision of the authority must be the natural culmination of the application of mind to the relevant and material facts available on the record, and
(ix) To arrive at a proper satisfaction warranting an order of preventive detention, the detaining authority must first examine the material adduced against the prospective detenu to satisfy itself whether his conduct or antecendent(s) reflect that he has been acting in a manner prejudicial to the maintenance of public order and, second, if the aforesaid satisfaction is arrived at, it must further consider whether it is likely that the said person would act in a manner prejudicial to the public order in near future unless he is prevented from doing so by passing an order of detention. For passing a detention order based on subjective satisfaction, the answer of the aforesaid aspects and points must be against the prospective detenu. The absence of application of mind to the Page 12 of 16 pertinent and proximate material and vital materials would show lack of statutory satisfaction on the part of the detaining authority."
16. Lastly, while closing the matter, the Hon'ble Supreme Court came down heavily on the State of Telangana in respect of rising orders of preventive detention being passed by the authorities in the State of Telangana. The Hon'ble Supreme Court in Shaikh Nazeen (supra) in paragraph Nos.44 to 48 has held as under:
"iii. The Saga Continues
44. We are dealing with a litigation arising from an order of preventive detention passed by the State of Telangana under the provisions of the Act 1986.
45. This is one more litigation going against the State of Telangana. We remind the State of Telangana of what has been observed by this Court in Mallada K Sri Ram v. State of Telangana reported in (2023) 13 SCC 537 in para 17:
"17. It is also relevant to note, that in the last five years, this 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 High Court of Telangana in the last year itself. These numbers evince a callous exercise of the exceptional power of preventive detention by the detaining authorities and the respondent-state. We direct the respondents to take stock of challenges to detention orders passing before the Advisory Board, High Court and Supreme Court and evaluate the fairness of the detention order against lawful standards."
46. Again, in one of the recent pronouncements of this Court in Ameena Begum (supra), this Court referring to Mallada K. Sri Ram (supra) observed in para 65 as under:
"65. Interference by this Court with orders of detention, routinely issued under the Act, seems to continue unabated. Even after Mallada K. Sri Ram [Mallada K. Sri Page 13 of 16 Ram v. State of Telangana, (2023) 13 SCC 537 : 2022 SCC OnLine SC 424] , in another decision of fairly recent origin in Sk. Nazeen v. State of Telangana [Sk. Nazeen v. State of Telangana, (2023) 9 SCC 633] , this Court set aside the impugned order of detention dated 28-10-2021 holding that seeking shelter under preventive detention law was not the proper remedy."
47. We hope that the State of Telangana takes what has fallen from this Court very seriously and sees to it that the orders of preventive detention are not passed in a routine manner without any application of mind.
48. We hope that the State of Telangana does not give any good reason once again to this Court to observe anything further."
17. Though the learned Special Government Pleader referring to the Counter filed by the respondents highlighted the gravity of the nature of offence in crime No.67 of 2023 registered at Peedavora Police Station for the offence under Section 376(D), 394, 411 read with 34 of the IPC, but what needs appreciation is that, there was only one case which was registered against the detenu and which has been taken into consideration by respondent No.2 while passing the impugned preventive detention order. Registering the detenu for a criminal offence in a solitary case and where the trial is yet to be adjudicated coupled with the fact that the detenu is already languishing in jail, the question to be considered is, was it justified on the part of respondent No.2 in passing the impugned preventive detention order. Page 14 of 16
18. Yet another fact which falls in favour of the petitioner is the very recent decision of the Hon'ble Supreme Court in the case of Vaddi Lakshmi (supra) wherein the Hon'ble Supreme Court in respect of the co-accused in the criminal case in which the petitioner is also being prosecuted, has in paragraph Nos.7 to 9 has held as under:
"7. We have considered the matter in detail. We are of the opinion that invocation of Section 3 of the 1986 Act is not justified as mere involvement in a sexual offence, including one under Section 376D, by itself will not be sufficient to invoke Section 3 of the 1986 Act. This is for the reason that the offence must be integrally connected 'with a view to prevent him from acting in a manner prejudicial to the maintenance of public order'. It is not decipherable from the order of Detaining Authority coupled with the grounds of detention, or from the Confirmation Order dated 09.08.2023, how the offence is connected to prevent the detenu from acting in a manner prejudicial to the maintenance of public order.
8. Apart from the fact that there is no justification for invoking the provisions of the 1986 Act, we are also of the opinion that these are solitary instances. In fact, the allegation of rape on 01.05.2023 was only in addition to the earlier allegation of extortion dated 27.04.2023. These are solitary instances of allegations of extortion and rape. There is no material before the Detaining Authority to indicate that the detenu is in the habit of committing the same offence yet again. In the absence of any material of this nature, there is absolutely no justification for the order dated 30.06.2023. Having considered the matter in detail, we are of the opinion that the order of detention dated 30.06.2023, coupled with its confirmation, are not sustainable.
9. In view of the above, we allow the appeal and set aside the judgment & order of the High Court dated 17.10.2023 passed in Writ Petition (Civil) No. 25767 of 2023 and quash the orders of detention dated 30.06.2023 and its confirmation dated 09.08.2023 respectively."Page 15 of 16
19. Thus, in an identical set of facts, the Hon'ble Supreme Court has already quashed the impugned order issued by respondent No.2 in connection with the same offence in respect of another co-accused person. Therefore, on the ground of parity, the impugned preventive detention order in the instant case also is not sustainable and deserves to be set-aside.
20. According to the Hon'ble Supreme Court an order of preventive detention is a draconian measure and if such orders are passed capriciously or as a matter of routine, such exercise must be forthwith interdicted. The Hon'ble Supreme Court had clearly indicated that the Advisory Board was expected to conduct a robust scrutiny and examine whether the order of detention was justified or not.
21. In the instant case also there is a solitary case which has been relied upon by respondent No.2 while passing of the impugned preventive detention order. Merely being involved in a solitary case by itself cannot be said to be a case of habitual offender. Likewise, merely getting involved in one criminal case also cannot be considered to be a ground for treating the detenu as a potential threat to the breach of public order.
Page 16 of 16
22. For all the aforesaid reasons, we are of the considered opinion that the impugned order of preventive detention dated 30.06.2023 is not sustainable and the same deserves to be and is accordingly set- aside/quashed. Accordingly, the present writ petition stands allowed. No costs.
23. As a sequel, miscellaneous petitions pending if any, shall stand closed.
__________________ P. SAM KOSHY, J ___________________________ SAMBASIVARAO NAIDU, J Date: 05.06.2024 GSD