Smt. Sneha Singh vs The State Of Telangana And 2 Others
2021 Latest Caselaw 2318 Tel

      THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY
                                       AND

         THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER


                  WRIT PETITION No.1826 of 2021

ORDER:   (Per the Hon'ble Dr. Justice Shameem Akther)



     Smt. Sneha Singh, the petitioner, has filed this Habeas Corpus

petition on behalf of her son, Pavan Singh, S/o. Kishore Singh, aged

about 22 years, the detenu, challenging the detention order vide SB

(I)No.206/PD-2/HYD/2020,           dated     29.10.2020,        passed     by    the

respondent No.2-Commissioner of Police, Hyderabad, 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.121, General Administration (Spl. (Law & Order))

Department, dated 12.01.2021, passed by the respondent No.1.

2. Heard the submissions of Sri Challa Dhanamjaya, learned

counsel for the petitioner, Sri T.Srikanth Reddy, learned Government

Pleader for Home representing the learned Advocate General for the

respondents and perused the record.

3. The background of the case, in brief, is that by relying two

criminal cases registered against the detenu in Crime Nos.279/2019 ARR, J & Dr.SA, J WP No.1826/2021

and 136/2020 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 as well as referred as his criminal antecedent

history. 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

authority. Hence, there was no need to invoke the draconian ARR, J & Dr.SA, J WP No.1826/2021

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. After release on bail, the detenu

has not involved in any crime or criminal activity. Further, the

detaining authority failed to furnish the material relied upon by it to

the detenu, within the mandatory period of five days from the date of

execution of the impugned detention order. 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 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. Kattuboina Siva Vs. The Collector and District Magistrate, East Godavari District, Kakinada and others1

2. M.Ahamedkutty Vs. Union of India (UOI) and others2

MANU/AP/0710/2011 ARR, J & Dr.SA, J WP No.1826/2021

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.279/2019, the police seized 1.1 kgs of 'Ganja' and in the second

crime, i.e., Crime No.136/2020, the police seized 44 Kgs of 'Ganja'

from the possession of the detenu. 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 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 becomes 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 was served with

the detention order, grounds of detention and the documents relied

upon by the detaining authority, both in English and Hindi languages

and the detenu acknowledged the receipt of the same. 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

MANU/SC/0427/1990 ARR, J & Dr.SA, J WP No.1826/2021

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.121, dated 12.01.2021. Therefore,

the detaining authority was legally justified 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. In support of his contentions, the

learned Government Pleader had relied on the following decisions.

1. State of Tamilnadu and another Vs. Kadal Kani3

2. Muppidi Swapna Vs. State of Telangana and others4

3. Banoth Deepla Vs. State of Telangana and another5

4. State of Tamilnadu and another 6Vs. Nabila and another

5. Naresh Singh Vs. State of Telangana and others7

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

(2002) 9 Supreme Court Cases 611

2016 SCC Online Hyd 551

2019 SCC Online TS 3441

(2015) 12 Supreme Court Cases 127

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.1826/2021

consequential confirmation order, dated 12.01.2021, passed by respondent No.1, 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.279/2019

and 136/2020 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 the Courts concerned. In order to prevent the detenu from

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-Pavan

Singh, S/o. Kishore 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 ARR, J & Dr.SA, J WP No.1826/2021

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)
       279/2019 of
                                                            (B) of NDPS Act Cognizable/
1.     Mangalhat Police   01.11.2019      01.11.2019
                                                                              Non-bailable
       Station
                                                              Qty: 1.1 kgs
                                                                of Ganja
                                                           Section 8 (c) read
                                                             with 20 (b) (ii)
       136/2020 of
                                                            (C) of NDPS Act Cognizable/
2.     Mangalhat Police   16.06.2020      16.06.2020
                                                                              Non-bailable
       Station
                                                             Qty: 44 kgs of
                                                                 Ganja

9. As seen from the material placed on record, in Crime

No.279/2019, 1100 grams/1.1 kg of Ganja was seized from the

possession of the detenu. In Crime No.136/2020, a huge quantity of

44 kgs of ganja was seized from the possession of the detenu. In

both the crimes, the detenu voluntarily admitted to be in possession

of Ganja. He further disclosed that his father Kishore Singh procures

Ganja in bulk quantity from his sources and every week, they sell the

same at higher price to the needy and prospective customers and

earn Rs.40,000/- to Rs.50,000/- and spend the sale proceeds

lavishly. In Crime No.279/2019, the detenu was arrested on

01.11.2019. He moved first bail petition on 05.11.2019, which was

dismissed by the Court concerned. Then, he moved second bail

petition on 25.11.2019 and the Court concerned granted conditional

bail to him vide Crl.M.P.No.4255/2019, dated 03.12.2019, and he

was released from jail on 04.12.2019. After his release on ARR, J & Dr.SA, J WP No.1826/2021

conditional bail in Crime No.279/2019, the detenu was again caught

possessing Ganja and was arrested on 16.06.2020 and a second case

in Crime No.136/2020 was registered against him. He moved two

bail petitions in the said crime, which were dismissed by the Court

concerned. He moved third bail petition before this Court on

05.08.2020 and this Court granted conditional bail to him vide order,

dated 05.10.2020, passed in Criminal Petition No.3381/2020 and he

was released from jail on 08.10.2020.

10. The learned counsel for the petitioner, placing reliance on

Kattuboina Siva's case (1 supra) and M.Ahamedkutty's case (2

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 in Muppidi Swapna's case (2 supra) relied by the

respondents, wherein, a Division Bench of this Court 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 ARR, J & Dr.SA, J WP No.1826/2021

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 order has 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.279 of 2019 on 01.11.2019 and he was granted conditional bail by

the Court concerned on 03.12.2019 vide Crl.M.P.No.4255/2019 and

he was released from jail on 04.12.2019. After release from jail, the

petitioner committed similar second crime, i.e., Crime No.136 of 2020

on 16.06.2020. 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 where huge

quantity of ganja was seized from the possession of the detenu.

Further, in Kamarunnissa v. Union of India8, 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 also placed strong

reliance over the judgment in M.Ahmedkutty's case (2 supra) in

support of his contention that non-consideration of bail order would

(1991) 1 Supreme Court Cases 128 ARR, J & Dr.SA, J WP No.1826/2021

amount to non-application of mind. Similar contention was raised in

Naresh Singh's case (7 supra) relied by the learned Government

Pleader for Home appearing for the respondents, wherein, a Division

Bench of this Court 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 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. Moreover, the said

contention with regard to non-consideration of conditions mentioned ARR, J & Dr.SA, J WP No.1826/2021

in the bail order was adequately dealt in Naresh Singh's case (7

supra) by this Court and was negated.

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

Magistrate9. 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 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.)10, 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,

(1970) 3 SCC 746

(2004) 7 SCC 467 ARR, J & Dr.SA, J WP No.1826/2021

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.

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

associates, 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 ARR, J & Dr.SA, J WP No.1826/2021

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. The material placed on record reveals that the

detenu was supplied with the documents relied upon by the detaining

authority in the language known to him, i.e., Hindi, besides English.

Therefore, the contention of the petitioner that the impugned

detention order was passed without serving complete material papers

to the detenu is unsustainable. 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 (7 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 ARR, J & Dr.SA, J WP No.1826/2021

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

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