Telangana High Court

Mohammed Amjad 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.7161 of 2021

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



     Mr. Mohammed Amjad, the petitioner, has filed this Habeas

Corpus petition on behalf of his son, Mohd. Arbaaz @ Arbaz, aged

21 years, the detenu, challenging the detention order vide SB

(I)No.155/PD-3/HYD/2020,            dated      16.12.2020,     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.437, General Administration

(Spl. (Law & Order)) Department, dated 24.02.2021, passed by

respondent No.1.

2. Heard the submissions of Sri C.Sharan Reddy, 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.7161/2021

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

criminal cases registered against the detenu in Crime

Nos.202/2019 and 278/2020 of Falaknuma Police Station and

Crime No.174/2020 of Kalapathar Police Station, the respondent

No.2-Commissioner of Police, Hyderabad, passed the impugned

detention order, dated 16.12.2020. According to the respondent

No.2, the detenu is a 'Goonda'. He, acting as a leader of a criminal

gang, committed offences including brutal murder, attempt to

murder with rioting and criminal intimidation using lethal weapons,

along with your associates, in an organized manner in the limits of

Hyderabad Police Commissionerate, and thus created panic, terror

and fear in the minds of general public, thereby disturbing the

public order and peace and tranquility in the area. The unlawful

activities of the detenu have been causing a feeling of insecurity in

the minds of public on a regular basis, which is prejudicial to the

maintenance of public order. With a view to prevent the detenu

from acting in the manner which is prejudicial to the maintenance

of public order, the impugned detention order, dated 16.12.2020,

was passed, which was confirmed by the Government, by order,

dated 24.02.2021. Hence, this Writ Petition before this Court.

4. The learned counsel for the petitioner vehemently contended

that the impugned detention order is vague, irrelevant, 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 'goonda'. The detaining authority has not ARR, J & Dr.SA, J WP No.7161/2021

applied its mind to the facts and circumstances of the case, while

passing the impugned detention order. The detenu was granted

conditional bail in Crime Nos.202/2019 and 278/2020 and

statutory/mandatory bail in Crime No.174/2020 by the Courts

concerned. 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 and did not violate 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. Further, the subjective satisfaction recorded by

the detaining authority for preventively detaining the detenu is

based on insufficient material. 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 Indian Penal Code

and Indian Arms Act, the detenu can certainly be tried under the

Penal Code and 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 ARR, J & Dr.SA, J WP No.7161/2021

unsustainable and ultimately, prayed to set aside the same and

allow the writ petition as prayed for.

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, along with his associates, has been indulging in grave and

dangerous activities of murder, attempt to murder with rioting and

criminal intimidation using lethal weapons, in an organized

manner. The unlawful activities of the detenu were creating large

scale fear, terror and panic among the people and thereby,

adversely affecting the public order. In the first crime, i.e., Crime

No.202/2019, the detenu, along with his associates, attacked the

complainant therein with a sickle on his abdomen causing bleeding

injuries. In the second crime, i.e., Crime No.278/2020, the detenu

attacked the complainant therein and gave fist blows on his face

and pushed him down due to which, the complainant sustained

injury on his lips and right elbow. In the third crime, i.e., Crime

No.174/2020, the detenu, in order to avenge the murder of his

brother, attacked the complainant therein with coconut cutting

sickle on his head and other parts of body causing multiple chop

and stab injuries. The said person succumbed to injuries while

undergoing treatment. Further, the three crimes relied upon for

detaining the detenu were committed by him in quick succession.

In spite of his arrest and remand in two crimes, he did not mend

his attitude and continued to commit similar third offence after his

release on bail on conditions. With a view to prevent the detenu

from further indulging in such dangerous activities in the interest ARR, J & Dr.SA, J WP No.7161/2021

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 21.01.2021,

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.437, dated

24.02.2021. 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.

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 16.12.2020, passed by respondent No.2 and the consequential confirmation order, dated 24.02.2021, passed by the respondent No.1 are liable to be set aside?"

7. POINT: As per the record, by relying on three criminal cases

registered against the detenu in Crime Nos.202/2019 and

278/2020 of Falaknuma Police Station and Crime No.174/2020 of

Kalapathar Police Station, the respondent No.2-Commissioner of ARR, J & Dr.SA, J WP No.7161/2021

Police, Hyderabad City, passed the impugned detention order,

dated 16.12.2020. According to the respondent No.2, the detenu

is a 'goonda'. He, acting as a leader of a criminal gang, committed

offences including brutal murder, attempt to murder with rioting

and criminal intimidation using lethal weapons, along with your

associates, in an organized manner, in the limits of Hyderabad

Police Commissionerate, and thus created panic, terror and fear in

the minds of general public, thereby disturbing the public order

and peace and tranquility in the area. The detenu is a potential

threat to the maintenance of public order. In the three cases

relied upon by the detaining authority, the detenu was granted

conditional bail in two crimes and statutory/mandatory bail in one

crime 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 16.12.2020,

was passed, which was confirmed by the Government by order,

dated 24.02.2021.

8. The material placed on record also reveals that the detenu-

Mohd.Arbaaz @ Arbaz, S/o. Mohd. Amjad, is alleged to be a

'goonda' and has been habitually indulging in the acts of

goondaism on a regular basis and has been causing a feeling of

insecurity in the minds of public in the limits of Hyderabad Police

Commissionerate and his illegal activities have been adversely

affecting the maintenance of public order and peace in the area.

The detaining authority relied on three 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 ARR, J & Dr.SA, J WP No.7161/2021

complained of and their nature, such as bailable/non-bailable or

cognizable/non-cognizable.

                         Date of       Date of
S.        Crime        Occurrence    registration       Offence           Nature
No.         No.                         of FIR
                                                                    Section 147, 148 -
                                                                        Cognizable/
      202/2019 of                                     Sections 147,
                                                                          Bailable
1.    Falaknuma        02.07.2019    03.07.2019      148, 452, 307
                                                                     Sections 452, 307
      Police Station                                 r/w 149 of IPC
                                                                       : Cognizable/
                                                                       Non-Bailable
                                                                     Section 323 : Non
                                                                        Cognizable/
                                                                          Bailable
                                                      Sections 323,
      278/2020 of                                                      Section 506 :
                                                     506 of IPC and
2.    Falaknuma        23.06.2020    24.06.2020                         Cognizable/
                                                    Section 25(1-B)
      Police Station                                                   Non-Bailable
                                                       of Arms Act
                                                                    Section 25(1-B) of
                                                                         Arms Act :
                                                                    Cognizable/Bailable
                                                                    Section 147, 148 -
                                                                        Cognizable/
                                                                          Bailable
                                                                      Section 120B :
                                                      Sections 147, Non-Cognizable/
                                                    148, 120B, 302,       Bailable
      174/2020 of                                     506 r/w 149      Section 302 :
3.    kalapathar       20.07.2020    20.07.2020      r/w 109 of IPC     Cognizable/
      Police Station                                   and Section     Non-Bailable
                                                        25(1-A) of     Section 506 :
                                                         Arms Act       Cognizable/
                                                                       Non-Bailable
                                                                    Section 25(1-A) of
                                                                         Arms Act :
                                                                    Cognizable/Bailable

9. In the first crime, i.e., Crime No.202 of 2019, it is alleged

that on 02.07.2019, the detenu, in order to avenge the murder of

his brother, attacked the complainant with a sickle, but the

complainant managed to escape from the scene and ran towards

his aunt's house. The detenu chased him and once again attacked

the complainant in order to kill him, causing bleeding injuries. The

complainant managed to get into his aunt's house and bolted the

door from inside. The detenu and his associates tried to enter the

house to kill the complainant, but when the aunt of the

complainant confronted them, they fled away from the scene. In

the second crime, i.e., Crime No.278 of 2020, while the

complainant was closing his pan shop, the detenu and his ARR, J & Dr.SA, J WP No.7161/2021

associates went to the pan shop in drunken condition and asked for

pan masala and cigarettes. When the complainant refused to give

the same without payment of money, the detenu and his associate

got angry and scattered the items in the pan shop. When the

complainant tried to stop them, they gave blows on his face and

pushed him down due to which, the complainant sustained injury

on his lips and right elbow. The detenu and his associate

threatened the complainant with dire consequences and ran away.

In the third crime, i.e., Crime No.174 of 2020, the detenu, in order

to avenge the murder of his brother, conspired with his associates

to eliminate one Shanoor Ghazi. In furtherance of their plan, on

the intervening night of 19/20.07.2020 at about 0020 hours, the

detenu and his associates tried to surround Shanoor Ghazi by

standing in the by-lanes. When Shanoor Ghazi noticed them and

started running, one of the associates of the detenu chased him

and poured chilli powder in the eyes of Shanoor Ghazi. Another

associate of the detenu kicked Shanoor Ghazi from behind due to

which, he fell down. Immediately the detenu attacked Shanoor

Ghazi indiscriminately with a coconut cutting sickle on his head and

other parts of body causing multiple chop and stab injuries. On

seeing the brother of Shanoor Ghazi approaching the detenu and

his associates, they fled from the scene on their two wheelers.

Immediately, Shanoor Ghazi was shifted to Osmania General

Hospital, where, he succumbed to injuries while undergoing

treatment. The above incidents indicate that the detenu is a

person of violent character and the criminal acts of the detenu had

terrorized the local people and created panic.

ARR, J & Dr.SA, J WP No.7161/2021

10. In the first crime, i.e., Crime No.202/2019, the detenu was

arrested on 06.07.2019. Immediately, the detenu moved bail

petition on 15.07.2019 and he was granted conditional bail by the

Court concerned on 22.07.2019 and he was released from jail vide

Release Order Dis.No.1242/XVI ACMM/HYD/2019, dated

23.07.2019. In the second crime, i.e., Crime No.278/2020, the

detenu was arrested on 24.06.2020. The detenu moved bail

petition on 25.06.2020 and he was granted conditional bail by the

Court concerned on 27.06.2020 and he was released from jail vide

Release Order Dis.No.53/Online/XVIACMMHyderabad/2020, dated

29.06.2020. In the third crime, i.e., Crime No.174/2020, the

detenu was arrested on 24.07.2020. The detenu moved bail

petition on 23.10.2020 and he was granted bail

statutory/mandatory bail by the Court concerned on 28.10.2020

and he was released on bail vide Release Order

Dis.No.476/SPL.JFCM/Excise/HYD/2020, dated 29.10.2020.

11. The learned counsel for the petitioner 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 Court in Muppidi Swapna Vs. State of

Telangana and others1. However, those were rejected by this

Court holding 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

2016 SCC Online Hyd 551 ARR, J & Dr.SA, J WP No.7161/2021

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.

12. 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 in the first two cases 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. It is apt to state that the detenu, after

release on conditional bail in first crime, committed the second

crime; and after release on conditional bail in second crime,

committed the third crime. It establishes that the conditions

imposed in the bail orders of the first two crimes did not deter him

from committing third grave offence of murder. Further, in

Kamarunnissa v. Union of India2, the Hon'ble Apex Court

(1991) 1 Supreme Court Cases 128 ARR, J & Dr.SA, J WP No.7161/2021

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.

13. The learned counsel for the petitioner further contended 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

others3, 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 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."

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.7161/2021

14. 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.

15. 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'.

16. In the case of Madhu Limaye Vs. Sub-Divisional

Magistrate4. 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."

17. In the case of Commissioner of Police & Others Vs.

C.Anita (Smt.)5, 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

(1970) 3 SCC 746

(2004) 7 SCC 467 ARR, J & Dr.SA, J WP No.7161/2021

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."

18. As per the clause (g) of Section 2 of the P.D.Act, a "goonda"

means a person, who either by himself or as a member of or leader

of a gang, habitually commits, or attempts to commit or abets the

commission of offences punishable under Chapter XVI or Chapter

XVII or Chapter XXII of the Indian Penal Code.

19. 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 despite grant of

conditional bails by the Courts concerned in the first two cases, he

did not mend his attitude and committed third crime, which is more

grievous in nature. So it is imperative upon the officers concerned

to pass the order of detention, since the acts of the detenu created

terror and panic in the locality, which is prejudicial to the

maintenance of public order. Therefore, the contention raised on

behalf of the detenu that the three criminal cases registered ARR, J & Dr.SA, J WP No.7161/2021

against the detenu should be seen as 'law and order problem' only

and the conditions imposed while granting bail in the first two

crimes were not considered by the detaining authority, are

unsustainable. Further, it is evident from the record that the

detenu committed the three crimes relied upon by the detaining

authority in quick succession. Here, it is apt to refer to the

decision of the Hon'ble Apex Court in Subrahmanian Vs. State of

Tamil Nadu6, wherein, it was held as follows:

It is well settled that the court does not interfere with the subjective satisfaction reached by the detaining authority except in exceptional and extremely limited grounds. The court cannot substitute its own opinion for that of the detaining authority when the grounds of detention are precise, pertinent, proximate and relevant, that sufficiency of grounds is not for the court but for the detaining authority for the formation of subjective satisfaction that the detention of a person with a view to preventing him from acting in any manner prejudicial to public order is required and that such satisfaction is subjective and not objective. The object of the law of preventive detention is not punitive but only preventive and further that the action of the executive in detaining a person being only precautionary, normally, the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct in an exhaustive manner. The satisfaction of the detaining authority, therefore, is considered to be of primary importance with certain latitude in the exercise of its discretion.

20. In the instant case, 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 pertinent, proximate, relevant

and in tune with the provisions of the P.D. Act. In view of the facts

and circumstances of the case, even the grant of conditional bail to

the detenu in the first two crimes and statutory bail in the third

crime would not make the detention order unsustainable on any

2012 (4) SCC 699 ARR, J & Dr.SA, J WP No.7161/2021

score. There is nothing wrong on the part of the detaining