Telangana High Court

Touphik vs The State Of Telangana And 3 Others on 28 April, 2021

Bench: A.Rajasheker Reddy, Shameem Akther

             THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
                                 AND
               THE HON'BLE DR. JUSTICE SHAMEEM AKTHER

                             W.P.NO.2234 OF 2021

             O R D E R (Per the Hon'ble Sri Justice A.Rajasheker Reddy)

The detenu is Vajib Kham s/o Jamshed Khan. The 2nd respondent -

Commissioner of Police, Hyderabad City, taking into consideration the four

crimes registered against detenu in Cr.Nos.535/2020, 877/2020, 943/2020

and 1047/2020 under Sections 66-C and 66-D of IT Act, and Sections 419

and 420 of IPC on the file of Cyber Crime Police Station, CCS, DD,

Hyderabad, and holding that he is satisfied that detenu is habitually cheating

people along with his associates in an organized manner, to acquire huge and

illegal money in the limits of Hyderabad Police Commissionerate by giving

false advertisements on OLX website indicating that vehicles were for sale by

misrepresenting that he was working with Indian Army; that he is a 'White

Collar Offender' as defined in Clause (x) of Section 2 of the Telangana

Prevention of Dangerous Activities of Bottleggers, Dacoits, Drug-Offenders,

Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed

Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration

Offenders, Fake Document Offenders, Sexual Offenders, Explosive

Substances Offenders, Arms Offenders, Cyber Crime Offenders and White

Collar or Financial Offenders Act, 1986 (Act No.1 of 1986); that he is acting

in a manner prejudicial to the maintenance of public order; and that ordinary

law under which he is booked is not sufficient to deal with his illegal

activities, unless he is detained under the detention laws; passed the

impugned order of detention vide SB(1)No.250/PD-7/HYD/2020 dated

24.11.2020 under sub-section 2 of Section 3 of the Act No.1 of 1986.

2. The said detention order has been approved by the Government

under sub-section 3 of Section 3 of Act 1 of 1986 vide G.O.Rt.No.1872

General Administration Spl. (Law and Order) Department dated 3.12.2020

and subsequently confirmed the 1st respondent vide G.O.Rt.No.264 General

Administration Spl. (Law and Order) Department dated 2.2.2021.

3. Assailing the same, the petitioner, who claims to be the brother-

in-law of the detenu, filed the present writ petition for a writ of Habeas

Corpus directing the 3rd respondent to produce the detenu, and to set aside

the detention order.

4. Learned counsel appearing for the petitioner submits that

2nd respondent passed the impugned order of detention without application of

mind. The four crimes, relied on by the detaining authority, are all foisted

cases, and there is no incriminating material available against the detenu and

based on the confessional statements recorded by the police, detention order

has been passed, and the same cannot be sustained.

5. That, the acts alleged against the detenu does not affect the public

order, and they are in no manner prejudicial to the maintenance of public

order, and ordinary law of the land would be sufficient to deal with them.

But the detaining authority by taking the 'law and order' problem, as 'public

order', passed the preventive detention order, and the same is illegal, and

arbitrary.

6. That, the cases registered against the detenu are still under

investigation and no charge sheets are filed, and the trial court granted

conditional bails in two cases and in other two cases, bail applications are

pending, and on release from jail, if the detenu violates any bail conditions or

indulges in similar activities, the prosecution can seek for cancellation of

bails, and there is no justification in invoking the preventive detention laws.

7. That, for arriving at the subjective satisfaction, the 2nd respondent

has not recorded any reasons, and this amounts to violation of principles of

natural justice. That the detaining authority has to carefully analyze the

material on record, and after considering the material in an objective

manner, has to invoke the preventive detention laws. In the present case,

there is no such objective assessment, and the impugned order has been

passed in a mechanical manner, thereby depriving the personal liberty

guaranteed to the detenu under Article 21 of the Constitution of India, and

hence the same is illegal, and liable to be interdicted by this court.

8. With these submissions, learned counsel for the petitioner seeks to

set aside the detention order, and the Government Orders confirming the

same. In support of his contentions, learned counsel relied on the Division

Bench judgment of this court in K.SUGUNA vs. THE STATE OF

TELANGANA1, RAM MANOHAR vs. STATE OF BIHAR2 and REKHA vs.

STATE OF TAMILNADU3.

W.P.No.24441 of 2019 dated 23.1.2020

AIR 1966 SC 740

(2011)5 SCC 244

9. On the other hand, learned Assistant Government Pleader for

Home, appearing for learned Advocate General submits that detenu is in the

habit of cheating gullible people by giving advertisement in OLX for sale of

two and four vehicles, falsely claiming that he is an Army personnel and after

receipt of money from prospective purchasers through different modes viz.,

Google Pay, phone pay, paytm, Fino bank etc., used to switch off the phones.

The people who lost the money and were cheated, made complaints and thus

four crimes have been registered in a short span of time, all under

Section 66-C 66-D of IT Act, and Sections 419 and 420 of IPC, and the four

crimes are under investigation, and the detenu was granted conditional bail

in two cases, and in other two cases, there is every likelihood of granting

bail. The activities of the detenu fall under the category of 'While Collar

Offender' under clause (x) of Section 2 of Act 1 of 1986. As there is every

possibility of detenu coming out from jail on being granted bail, and as seen

from his past history, there is every likelihood of committing such offences,

which are detrimental to the public order, the 2nd respondent considering the

material on record and in compliance with the statutory procedure, and also

in compliance with all the principles of natural justice, passed the impugned

order of detention by categorically recording his subjective satisfaction.

10. That when the detaining authority records his satisfaction based

on the material available before him, this court cannot substitute its opinion

for that of the detaining authority, except in exceptional cases and that the

present case is not one of exceptional nature, therefore, this court may not

interfere with the impugned order of detention. In support of his contention,

learned Assistant Government Pleader relied on the judgments of Apex Court

in SUBRAHMANIAH vs. STATE OF TAMIL NADU4 and STATE OF

PUNJAB vs. SUKHPAL SINGH5.

11. With these submissions, learned Assistant Government Pleader

seeks to dismiss the writ petition.

12. Heard both the counsel and perused the material on record.

13. Since the arguments of both the counsel mainly revolved around

the issue, whether the alleged acts committed by the detenu fall within the

ambit of 'public order' or 'law and order', it is necessary to look into the law

laid down by Apex Court in this regard.

14. It is to be seen that if the criminal acts alleged against the detenu

disturbs the current life of the community, leading to disturbance of the

public order, or the potential of the act disturbs even the tempo of life of the

community, which makes it prejudicial to the maintenance of 'public order',

then the authority is justified in passing the order of detention under the

provisions of Act 1 of 1986. On the other hand, if the criminal activities

alleged against the detenu merely affects an individual, leaving the

tranquility of the society undisturbed, or that the contravention alleged

against the detenu, is confined only to a few individuals directly involved, as

distinct from a wide spectrum of public, it has to be considered only as 'law

and order' problem. {See Arun Ghosh v. State of Bengal (1970)1 SCC 98

and Commr. Of Police v. C.Anita (2004)7 SCC 467}. Since same is also the

(2012)4 SCC 699

(1990)1 SCC 35

view expressed in the judgments 2 and 3, relied on by the learned counsel

for the petitioner, they are not being referred to, to avoid repetition.

15. Coming to the facts of the present case, from the material on

record, it could be seen that the modus operandi of the detenu, is that he

along with his associates placed an advertisement on OLX, which is an online

social media advertisement platform, for selling of two and four wheelers.

When the prospective purchasers contacted them on the given phone

number, they falsely introduce themselves as army personnel, and after

gaining confidence, they used to fix sale price of the vehicle. Initially, the

detenu would request the victim to send advance amount. Thereafter, on

one or the other pretext, they extract money, more than the agreed sale

price through google pay and bank transfers etc., and after receiving

substantial amounts, they used to switch off their mobile phones, thus

cheating the people who transferred the amounts.

16. The victims of this fraud, filed four complaints bearing

Cr.Nos.535/2020, 877/2020, 943 of 2020 and 1047 of 2020, all under

Section 66-C and 66-D of IT Act, and Sections 419 and 420 on the file of

Cyber Crime P.S. CCS, DD, Hyderabad, and they are stated to be at the

stage of investigation.

17. All these crimes are registered against the detenu during the year

2020 within a short span of time.

18. In the counter affidavit, the efforts made by the police for

arresting the detenu and his associates who are residents of Chulhera, and

Kalyanpur, Bharatpur Districts of Rajasthan State, are stated.

19. A careful analysis of the acts committed by the detenu and his

associates, would show that not only the individual victims of the crime are

affected, but the people who resort to making purchases through online

advertisement platforms, will be affected, since by coming to know these

fraudulent activities, they will be under terrific fear and panic, thinking that

whether the online advertisement firm chosen by them for making any

purchase, is genuine or not, and whether they will receive the products for

which they have transferred the amounts. In the present era of internet and

globalization, due to lack of time for shopping personally, traffic and other

problems, availability of variety of items of national and international make

on social media, better pricing options, facility to transfer money through

different modes viz., account transfer, google-pay, phone-pay etc., people

prefer online advertisement platforms, for making purchases of different

items. If the people come to know the alleged fraudulent activities of the

people like the detenu, then they may not go for such online purchases,

which results in affecting the business activities of genuine firms and this will

have an adverse impact on the e-commerce of our economy. In the decision

reported in STATE OF GUJARAT vs. MOHANLAL JITAMALJI PORWAL6,

a Division Bench of the Apex Court, speaking through M.P.Thakker, J (as His

Lordship then was) observed as under:

(1987) 2 SCC 364

"The entire community is aggrieved, if the economic offenders, who ruin the economy of the State, are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design, with an eye on personal profit, regardless of the consequences of the community. A disregard for the interest of the community can be manifestly only at the cost of forfeiting the trust and faith of the community on the system to administer justice in an even-handed manner without fear of criticism from the quarters, which view white-collar crimes with a permissive eye, unmindful of the damage done to the national economy and national interest."

20. Having regard to the mode of operation of the detenu and his

associates and the four crimes registered in quick succession, the

2nd respondent, in our considered view, has rightly held that detenu is a

'while collar offender' under clause (x) of Section 2 of Act 1 of 1986, and

recorded his satisfaction that the activities of the detenu are prejudicial to

the maintenance of public order, and that ordinary law will not be sufficient

to deal with such illegal activities.

21. From the material on record, it could be seen that out of the four

crimes, detenu was granted bail in two cases and he is making efforts for

getting bail in other two cases. The detenu is a non-local and in the counter

affidavit, the ordeals of the police in tracing the detenu and his associates,

and apprehending them, are described. Considering these facts and

circumstances, the 2nd respondent held that the there is every possibility of

detenu being released from jail on bail, and on such release, there is

imminent possibility of his violating the bail condition and go absconding, as

he is a non-local, and committing similar offences by evading his

apprehension, which would be detrimental to the public order, unless he is

prevented from doing so by an order of preventive detention.

22. The Apex Court in the decision reported in Subrahmaniah vs.

STATE OF TAMILNADU (4 supra), held that the subjective satisfaction

reached by the detaining authority, cannot be interfered with by this court,

except in exceptional and extremely limited grounds, and that this court

cannot substitute its own opinion for that of the detaining authority, and that

the sufficient or otherwise of the grounds, is not for this court to determine,

and it is for the detaining authority to form subjective satisfaction.

23. In an other decision of the Apex Court in State of Punjab vs.

Sukhpal Singh (5 supra), also expressed similar view. For better

appreciation, the relevant portion of the order is as under:

"Preventive order 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 so doing. The justification of such detention is suspicious or reasonable probability and not criminal conviction which can only be warranted by legal evidence. Thus, any preventive measures even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the State. . . . . When power is given to an authority to act on certain facts and if that authority acts on relevant facts and arrives at a decision, which cannot be described as either irrational or unreasonable, then the order is not bad and the court cannot substitute the decision or opinion in place of the decision of the authority concerned on the necessity of passing the order."

24. Having regard to the facts and circumstances of the case, we are

of the considered view, that the 2nd respondent, in order to prevent the

detenu from indulging in similar activities and to protect the society, passed

the impugned order of preventive detention by recording his subjective

satisfaction, and no grounds are made out for interfering with the same.

Hence, in view of the judgments of the Apex Court referred to above (4 and

5 supra), the impugned order of detention cannot be interfered with.

25. The facts in the judgment of the Division Bench of this court in

K.Suguna vs. State of Telangana (1 supra), relied on by the learned counsel

for the petitioner shows that the allegations therein pertain to theft, which

may affect the individual concerned, and it will not normally have bearing on

the public order, and in those circumstances, the Division Bench held that the