Telangana High Court
Bukhari Kishen Rahul Singh vs The State Of Telangana on 10 August, 2021
Bench: A.Rajasheker Reddy, Shameem Akther
THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY
AND
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
WRIT PETITION No.2165 of 2021
ORDER: (Per the Hon'ble Dr. Justice Shameem Akther)
Mr. Bukhari Kishen Rahul Singh, the petitioner, has filed this
Habeas Corpus petition on behalf of his brother, Ritesh Singh, S/o.
late Sudheer Singh, aged about 24 years, the detenu, challenging the
detention order vide SB (I)No.205/PD-2/HYD/2020, dated
29.10.2020, passed by the respondent No.2-Commissioner of Police,
Hyderabad City, wherein, the detenu was detained under Section
3(2) of the Telangana Prevention of Dangerous Activities of
Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic
Offenders, Land-Grabbers, Spurious Seed Offenders, Insecticide
Offenders, Fertilizer Offenders, Food Adulteration Offenders, Fake
Document offenders, Scheduled Commodities Offenders, Forest
Offenders, Gaming Offenders, Sexual Offenders, Explosive
Substances Offenders, Arms Offenders, Cyber Crime Offenders &
White Collar or Financial Offenders Act, 1986 (for short, "P.D. Act")
and the consequential confirmation order vide G.O.Rt.No.120,
General Administration (Spl. (Law & Order)) Department, dated
12.01.2021, passed by the Principal Secretary to Government,
General Administration (Spl. (Law & Order)) Department,
Government of Telangana.
2. Heard the submissions of Sri A.Prabhakar Rao, learned counsel
for the petitioner, Sri T.Srikanth Reddy, learned Government Pleader
for Home representing the learned Additional Advocate General for
the respondents and perused the record.
ARR, J & Dr.SA, J
WP No.2165/2021
3. The background of the case, in brief, is that by relying two
criminal cases registered against the detenu in Crime Nos.316/2019
and 70/2020 of Mangalhat Police Station, Hyderabad, the respondent
No.2-Commissioner of Police, Hyderabad, passed the impugned
detention order, dated 29.10.2020. According to the respondent
No.2, the detenu is a 'drug offender', as he has been indulging in
highly dangerous activities of peddling 'ganja', a narcotic drug,
among the people in the limits of Hyderabad Police Commissionerate,
duly endangering the lives of youth and innocent people, causing
irreparable damage to their body organs, including the Central
Nervous System and thereby, crippling the mental and physical
health of the people addicted to drugs. With a view to prevent the
detenu from damaging the health of general public, especially youth,
by supplying 'Ganja', which is prejudicial to maintenance of public
order, the impugned detention order, dated 29.10.2020, was passed,
which was confirmed by the Government, by order, dated
12.01.2021. Hence, this Writ Petition before this Court.
4. The learned counsel for the petitioner vehemently contended
that the impugned detention order is illegal, arbitrary,
unconstitutional, improper, against the principles of natural justice
and has been passed in a mechanical manner and without application
of mind. The detenu is falsely implicated in the cases relied by the
detaining authority. The alleged criminal activities of the detenu, in
any event, would not satisfy the word 'drug offender'. The detaining
authority has not applied its mind to the facts and circumstances of
the case, while passing the impugned detention order. The detenu
was granted conditional bail in both the crimes relied by the detaining
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WP No.2165/2021
authority. Hence, there was no need to invoke the draconian
preventive detention laws against the detenu, since the detenu would
be well within the surveillance of police. Further, the detenu has
been complying the bail conditions. The conditions imposed in the
bail orders were sufficient to prevent the detenu from fleeing from
justice. Thus, the impugned detention order is vitiated by non-
consideration of the bail conditions. In case the detenu had violated
the bail conditions, the sponsoring authority could have taken steps
for cancellation of bail. Instead, the sponsoring authority gave a
requisition to the detaining authority for passing the detention order.
Further, the subjective satisfaction recorded by the detaining
authority for preventively detaining the detenu is vague and not
based on any material. Further, the detaining authority failed to
furnish the material relied upon by it to the detenu in the language
known to him, i.e., Hindi, which deprived the detenu to exercise his
constitutional right of making a representation to the authorities.
Moreover, the cases alleged against the detenu do not add up to
"disturbing the public order". They are confined within the ambit and
scope of the word "law and order". Since the offences alleged are
under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for
short, 'NDPS Act'), the detenu can certainly be tried under the said
special law. Thus, there was no need for the detaining authority to
invoke the draconian preventive detention laws. Hence, the
impugned detention order tantamounts to colourable exercise of
power. Preventive detention cannot be made a substitute to punitive
detention. The detaining authority has to be extremely careful while
passing the detention order, since the detention ipso facto adversely
affects the fundamental right of personal liberty enjoyed by the
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people under Article 21 of the Constitution of India. Thus, the
detention order is legally unsustainable and ultimately, prayed to set
aside the same and allow the writ petition as prayed for. In support
of his contentions, the learned counsel had relied on the following
decisions.
1. M.Ahamedkutty Vs. Union of India (UOI) and others1
2. Ramesh Yadav Vs. District Magistrate, Etah and others2
3. Binod Singh Vs. District Magistrate, Dhanbad and others3
4. Anitha Bai Vs. State of Telangana and others4
5. Santhosh Singh Vs. State of Telangana and others5
6. Smt. Sneha Singh Vs. State of Telangana and others6
7. Nakka Srinu Vs. State of Telangana and others7
8. Md.Naseem Vs. State of Telangana and others8
5. On the other hand, Sri T.Srikanth Reddy, the learned
Government Pleader for Home, appearing for the respondents,
supported the impugned detention order and submitted the detenu
has been indulging in grave and dangerous activities of peddling
'Ganja', a narcotic substance, duly endangering the lives of youth
and causing irreparable damage to their body organs including
Central Nervous System and thereby, crippling the health of those
who are addicted to drugs. The unlawful activities of the detenu
were causing widespread danger to the public health and were
detrimental to the public order. In the first crime, i.e., Crime
No.316/2019, the police seized 21 Kgs of 'Ganja' and in the second
crime, i.e., Crime No.70/2020, the police seized 22 Kgs of 'Ganja'
from the possession of the detenu and his associate. Free sale of
drugs not just impacts individuals and their health, but also
adversely affects the society at large. If the youth gets caught in a
1990 (2) SCC 1
(1985) 4 SCC 232
(1986) 4 SCC 416
Decided on 12.04.2021 in W.P.No.1657 of 2021 by the High Court for the State of Telangana
Decided on 23.04.2021 in W.P.No.1691 of 2021 by the High Court for the State of Telangana
Decided on 18.02.2019 in W.P.No.38082 of 2018 by the High Court for the State of Telangana
Decided on 26.12.2019 in W.P.No.20904 of 2019 by the High Court for the State of Telangana
Decided on 09.11.2018 in W.P.No.32398 of 2018 by the High Court of Judicature at Hyderabad for the
State of Telangana and the State of Andhra Pradesh
ARR, J & Dr.SA, J
WP No.2165/2021
trap of drug addiction, they slowly begin to disobey the law and
commit petty crimes, in order to ensure constant supply of drugs to
themselves and eventually become physically and financially, a
burden to the society itself. Therefore, sale of drugs by drug
offenders adversely affects a large segment of society and hence, it
disturbs the maintenance of public order. Further, the detenu stated
that he studied up to intermediate in English medium and requested
the detaining authority to provide him English translated copies of
the detention order, grounds of detention and the documents relied
upon. Accordingly, the detenu was served with the English
translated copies within the mandatory period and the detenu
acknowledged the receipt of the same by signing each page in
English. Further, the two crimes relied upon for detaining the detenu
were committed by him in quick succession. In spite of his arrest
and remand in the first crime, he did not mend his attitude and
continued to commit similar offences after his release on bail. With a
view to prevent the detenu from further indulging in such dangerous
activities in the interest of the society, the impugned detention order
was passed. The subjective satisfaction reached by the detaining
authority in preventively detaining the detenu is not tainted or illegal.
Further, the Advisory Board, in its review meeting held on
14.12.2020, upon hearing the detenu and the concerned
investigating officials and upon considering the entire material placed
before it, rendered its opinion that there is sufficient cause for
detention of the detenu. On considering the opinion of the Advisory
Board and upon considering the entire material, the Government
confirmed the impugned detention order vide G.O.Rt.No.120, dated
12.01.2021. Therefore, the detaining authority was legally justified
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WP No.2165/2021
in passing the impugned detention order. All the mandatory
provisions and the safeguards envisaged under the law were strictly
followed, while passing the impugned detention order and hence, the
impugned detention order does not suffer from illegality or
impropriety and ultimately, prayed to dismiss the Writ Petition.
6. In view of the submissions made by both sides, the point that
arises for determination in this Writ Petition is:
"Whether the impugned detention order, dated
29.10.2020, passed by respondent No.2 and the
consequential confirmation order, dated
12.01.2021, passed by the Principal Secretary to
Government, General Administration (Spl. (Law &
Order)) Department, Government of Telangana, are
liable to be set aside?"
7. POINT: Briefly, the facts of the case are that by relying on two
criminal cases registered against the detenu in Crime Nos.316/2019
and 70/2020 of Mangalhat Police Station, Hyderabad, the respondent
No.2-Commissioner of Police, Hyderabad City, passed the detention
order, dated 29.10.2020. According to the respondent No.2, the
detenu is a 'drug offender' and has been habitually indulging in illegal
activities of peddling narcotic drugs, duly endangering the lives of
youth and innocent people, causing irreparable damage to their body
organs including the Central Nervous System and thereby, crippling
the mental and physical health of the people addicted to drugs and
acting in a manner prejudicial to the maintenance of public order and
health as well. The detenu is a potential threat to the maintenance
of public order in general and public health in particular. In the two
cases relied upon by the detaining authority, the detenu was granted
conditional bail by this Court. In order to prevent the detenu from
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indulging in such illegal activities, which are detrimental to the public
order, the impugned detention order, dated 29.10.2020, was passed,
which was confirmed by the Government by order, dated
12.01.2021.
8. The material placed on record reveals that the detenu-Ritesh
Singh, S/o. late Sudheer Singh, who is alleged to be a 'drug
offender', has been habitually indulging in procuring 'Ganja' to sell
the same to youth and people addicted to drugs to make easy and
illegal money and lead a lavish life in the limits of Hyderabad Police
Commissionerate. His illegal activities have caused widespread
danger to the public health. The detaining authority relied on two
cases for preventively detaining the detenu. We shall present them
in a tabular column the date of occurrence, the date of registration of
FIR, the offences complained of and their nature, such as
bailable/non-bailable or cognizable/non-cognizable.
Date of Date of
S. Occurrence registration
Crime No. Offence Nature
No. of FIR
Section 8 (c) read
with 20 (b) (ii)
316/2019 of
(C) of NDPS Act Cognizable/
1. Mangalhat Police 28.12.2019 28.12.2019
Non-bailable
Station
Qty: 21 kgs
of Ganja
Section 8 (c) read
with 20 (b) (ii)
70/2020 of
(C) of NDPS Act Cognizable/
2. Mangalhat Police 23.03.2020 23.03.2020
Non-bailable
Station
Qty: 22 kgs of
Ganja
9. As seen from the material placed on record, in Crime
No.316/2019, 21 kilograms of Ganja was seized from the possession
of the detenu and his associate. In Crime No.70/2020, 22 kgs of
ganja was seized from the possession of the detenu and his
associate. In Crime No.316/2019, the detenu voluntarily confessed
to be in possession of Ganja and has been selling Ganja at higher
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WP No.2165/2021
price to the needy and prospective customers to earn easy illegal
money. In Crime No.70/2020, the detenu voluntarily confessed that
he and his associate purchased 22 kilograms of Ganja @ Rs.6,000/-
per kilogram on 17.03.2020 from their associate Ramana, resident of
Visakhapatnam, Andhra Pradesh, and were carrying the same in two
travel bags to sell the same to the needy/prospective customers to
make easy money. In Crime No.316/2019, the detenu was arrested
on 28.12.2019. He moved first bail petition on 02.01.2020, which
was dismissed by the Court concerned. Then, he moved second bail
petition before this Court on 21.01.2020 and this Court granted
conditional bail to him vide order, dated 29.01.2020, passed in
Criminal Petition No.441 of 2020, and he was released from jail vide
Release Order Dis No.424/2020, dated 31.01.2020. After his release
on conditional bail in Crime No.316/2019, the detenu was again
caught possessing Ganja and was arrested on 23.03.2020 and a
second case in Crime No.70/2020 was registered against him. He
moved first bail petition in the said crime on 23.04.2020, which was
dismissed by the Court concerned. He moved second bail petition
before this Court on 07.05.2020 and this Court granted conditional
bail to him vide order, dated 21.05.2020, passed in Criminal Petition
No.2183 of 2020 and he was released from jail vide Release Order
Elec.Dis.No.15/2020, on 27.05.2020.
10. The learned counsel for the petitioner, placing reliance on
M.Ahamedkutty's case (1 supra), vehemently argued that non-
consideration of the conditional bail orders granted to the detenu
vitiates the detention order and that the conditions imposed while
granting bail are sufficient to prevent the detenu from fleeing from
justice. Similar contention was raised before a Division Bench of this
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WP No.2165/2021
Court in Muppidi Swapna Vs. State of Telangana and others9,
wherein, it was held as follows:
The learned counsel for the detenu argued with lot of emphasis that
some of the bail orders are conditional and therefore the nature of
the conditions was very much relevant for respondent No.2 to
consider whether they were sufficient to prevent the detenu from
fleeing from justice and that non-consideration of the conditional
bail orders has vitiated the detention order. We are afraid, we
cannot accept this submission because irrespective of whether the
bail orders contained conditions or not, respondent No.2 has arrived
at the subjective satisfaction that in spite of his arrest in connection
with the criminal cases, the detenu is repeating his activities after
being released on bail. This necessarily means that the detaining
authority was not only aware of the fact that the detenu was
released on bail in all the cases, but also the fact that the ordinary
laws set in motion have proved inefficacious. Even the learned
counsel for the detenu has not placed before the Court the bail
orders which purportedly contained conditions. In any event, the
facts of the case, reveal that irrespective of the alleged conditions of
bail, the detenu continued his alleged illegal activities which is
manifest from the fact that as many as seven criminal cases were
registered against him in succession, clearly showing that the
alleged conditions of bail did not deter the detenu from repeating
his alleged illegal activities.
11. In the instant case also, grant of conditional bail to the detenu
was specifically referred in the detention order and a copy of the
conditional bail order along with other relevant material were
supplied to the detenu. When the detaining authority had noticed
grant of bail on conditions and a copy of the said orders have been
served on the detenu to make a representation before the authorities
concerned, it cannot be said that the detaining authority had not
taken into consideration the conditions imposed while grating bail to
the detenu. The detaining authority, having examined the material
against the detenu including grant of conditional bail, was pleased to
pass the impugned detention order. Further, the material placed on
record reveal that the detenu committed first crime, i.e., Crime
No.316 of 2019 on 28.12.2019 and he was granted conditional bail by
this Court on 29.01.2020 vide Criminal Petition No.441 of 2020 and
he was released from jail on 31.01.2020. In the said bail order, one
2016 SCC Online Hyd 551
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WP No.2165/2021
of the conditions is that the detenu shall not indulge in similar
activities in future. But after release from jail, the petitioner
committed similar second crime, i.e., Crime No.70 of 2020 on
23.03.2020. It establishes that the detenu had patently violated the
bail conditions imposed in the first crime and those conditions did not
deter him from committing second similar crime, wherein, substantial
quantity of ganja was seized from the possession of the detenu and
his associate. Further, in Kamarunnissa v. Union of India10,
the Hon'ble Apex Court held that if an authority passes an order after
recording its satisfaction, such an order cannot be struck down
ostensibly on the ground that the proper course for the authority was
to oppose the bail and seek cancellation of bail.
12. The learned counsel for the petitioner placed strong reliance
over the judgment in M.Ahmedkutty's case (1 supra) in support of
his contention that non-consideration of bail order would amount to
non-application of mind. Similar contention was raised before a
Division Bench of this Court in Naresh Singh Vs. State of
Telangana and others11, wherein, it was held as follows:
"But a close scrutiny of the judgment in M.Ahmedkutty (supras)
goes to show that the issue before the Hon'ble Supreme Court was
whether the detaining authority considered the Supreme Court's
interim order in pending appeal against High Court's quashing of a
previous order of detention against the same detenu was considered
or not. While dealing with the said issue, the Hon'ble Supreme
Court held as under:
"25. Non-consideration of the bail order would have
therefore, in this case, amounted to non- application of mind.
In Union of India v. Manoharlal Narang [(1987) 2 SCC
241] the Supreme Court's interim order in pending appeal
against High Court's quashing of a previous order of
detention against the same detenu was not considered
by the detaining authority while making the impugned
subsequent order against him. It was held that non-
consideration of the interim order which constituted a
relevant and important material was fatal to the subsequent
detention order on ground of non-application of mind. If the
detaining authority considered that order one could not state
(1991) 1 Supreme Court Cases 128
Decided on 05.03.2020 in W.P.No.502 of 2020 by the High Court for the State of Telangana
ARR, J & Dr.SA, J
WP No.2165/2021
with definiteness which way his subjective satisfaction would
have reacted and it could have persuaded the detaining
authority to desist from passing the order of detention."
Thus, in the aforementioned case, the Hon'ble Supreme Court was
not dealing with the issue regarding consideration of conditions
imposed in the bail order by the detaining authority, but that aspect
was not brought to the notice of the Division Bench in WP No.38082
of 2018, wherein the said order was passed basing on the order in
W.P.No.32398 of 2018, dated 09.11.2018. The said distinction was
not noticed by the Division Bench in W.P.No.32398 of 2018. In the
instant case, as stated supra, conditional bail orders passed in
favour of the detenu were considered by the detaining authority.
When bail orders were considered, it cannot be said that the
conditions imposed in the said order were not considered."
13. In the instant case, in view of the facts and circumstances and
specific mention of grant of conditional bails to the detenu in the
impugned detention order, it cannot be said that the detaining
authority did not consider the conditions imposed while granting bail
orders in favour of the detenu. So, the contention of the petitioner
that the impugned detention order is vitiated by non-consideration of
the bail conditions cannot be accepted.
14. Further, it is apt to state that preventive detention is different
from punitive detention. While punitive detention could be enforced
under ordinary criminal law, the law of preventive detention can be
enforced against habitual offenders to prevent them from committing
the future similar offences, which are detrimental to the public
interest, disturbing the even tempo of life and causing damage to
public health. The legal parameters for testing the validity of
'preventive detention' fundamentally vary from that of 'punitive
detention'.
15. In the case of Madhu Limaye Vs. Sub-Divisional
Magistrate12. The Hon'ble Apex Court held as follows:
"The acts which disturb public tranquility or are breaches of the
peace should not be given a narrow meaning, but should be given
(1970) 3 SCC 746
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a liberal interpretation. For the expression 'in the interest of public
order' is very wide amplitude."
16. In the case of Commissioner of Police & Others Vs. C.Anita
(Smt.)13, the Hon'ble Apex Court examined the issue of "public
order" and "law and order" and observed as follows:
"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 public order 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 the 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 the public, it
could raise problem of law and order only. It is the length,
magnitude and intensity of the terror wave unleashed by a
particular eruption of disorder that helps to distinguish it as an act
affecting "public order" from that concerning "law and order". The
question to ask is: "Does it lead to disturbance of the current life of
the community so as to amount to a disturbance of the public
order or does it affect merely an individual leaving the tranquility
of the society undisturbed?" This question has to be faced in every
case on its facts."
17. As per the clause (f) of Section 2 of the P.D.Act, a "drug
offender" means a person, who manufactures, stocks, imports,
exports, sells or distributes any drug or cultivates any plant or does
any other thing in contravention of any of the provisions of the Drugs
and Cosmetics Act, 1940 (Central Act XXIII of 1940), or the Narcotic
Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of
1985) and the rules, notification and orders made under either Act, or
in contravention of any other Law for the time being in force, or who
knowingly expends or applies any money in furtherance or support of
the doing of any of the above mentioned things by himself or through
any other person, or who abets in any other manner the doing of any
such thing.
(2004) 7 SCC 467
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18. The personal liberty of an individual, which the law preserves
and protects, can also be taken away by following the procedure
established by law, when it is used to jeopardize the public good. In
the instant case, the commission of alleged offences as indicated in
the above table clearly demonstrates that the detenu, along with his
associate, clandestinely indulging in procuring 'Ganja' to sell the
same to youth and people addicted to drugs to make easy money and
lead a lavish life, which would certainly disturb the public peace and
tranquility. As mentioned above, the detenu, instead of mending
himself, committed similar offence after his release on conditional bail
in the first crime. So it is imperative upon the officers concerned to
pass the order of detention, since the acts of the detenu are
prejudicial to the maintenance of public order. The detaining
authority had sufficient material to record subjective satisfaction that
the detention of the detenu was necessary to maintain public order
and even tempo of life of the community. The order of detention
does not suffer from any illegality. The grounds of detention, as
indicated in the impugned order, are found to be relevant and in tune
with the provisions of the P.D. Act. Since the detenu was granted
conditional bail in both the cases relied by the detaining authority,
there is nothing wrong on the part of the detaining authority in
raising an apprehension that there is possibility of the detenu
committing similar offences, which would again certainly affect the
public health at large. Though the learned counsel for the petitioner
contended that the detenu was not supplied with the documents
relied upon by the detaining authority in the language known to him,
i.e., Hindi, the said contention has been refuted by the respondents
in the counter contending that the detenu studied up to intermediate
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in English medium and he requested the detaining authority to
provide him English translated copies of the detention order, grounds
of detention and the documents relied upon and accordingly, the
detenu was served with the English translated copies within the
mandatory period and the detenu acknowledged the receipt of the
same by signing each page in English. There is no reply by the
petitioner disputing the said contention. Moreover, in the course of
submissions, the learned counsel for the petitioner has not pressed
this point. Therefore, it is deemed that the detenu has been supplied
with the copies of the documents relied by the detaining authority in
the language known to him, i.e., English. Moreover, the said
contention cannot be a ground to set aside the impugned detention
order. The subjective satisfaction reached by the detaining authority
is not tainted or illegal on any account. The acts of the detenu
cannot be effectively dealt with under special law.
19. Before parting, as righty observed by this Court in Naresh
Singh's case (11 supra), the menace of drug abuse and proliferation
of drug trade is an open secret. Drug abuse is not only confined to
the urban centres, but has even spread to rural areas. It is common
knowledge that drug problems are rampant amongst the youth. The
easy availability of drugs has distorted the lives of the many young
men and women in our society. In order to ensure a steady supply of
drugs for themselves, these young men and women are prone to
commit petty offences. The illegal money earned in this activity fuels
the other nefarious activities. Therefore, what may patently appear
to be a "law and order" problem, on a deeper analysis, emerges as a
"public order" problem. Hence, while dealing with preventive
detention cases qua offences committed under the NDPS Act, the
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Courts have to be vigilant with regard to the impact of such offences
on the society at large. Thus, the learned counsel for the petitioner is
unjustified in claiming that the two cases registered against the
detenu should be seen as "law and order" problem and not as a
"public order" problem.
20. Under these circumstances, the detaining authority is justified
in passing the impugned detention order. We do not see any merit in
this Writ Petition and as such, it is liable to be dismissed.
21. The Writ Petition is, accordingly, dismissed. There shall be no
order as to costs.
Miscellaneous petitions pending, if any, in this Writ Petition,
shall stand closed.
____________________
A.RAJASHEKER REDDY, J
____________________
Dr. SHAMEEM AKTHER, J
10th August, 2021
Bvv
