Md.Nazim Hashmi vs The State Of Telangana And 2 Others
2021 Latest Caselaw 4170 Tel

            HONOURABLE SRI JUSTICE P.NAVEEN RAO
                             &
            HONOURABLE SMT JUSTICE P.SREE SUDHA


               WRIT PETITION NO.22140 OF 2021

                        Date: 07.12.2021

Between:

Md.Nazim Hashmi s/o. Md.Hashmi,
Aged 32 years, r/o.H.No.44, Madarsa Road,
Ishipur Barahat, Bhagalpur district,
Bihar State.

                                                ..... Petitioner
      And

The State of Telangana, rep.by its
Prl.Secretary to the Govt. (Political),
GAD Department, Telangana Secretariat,
Hyderabad and two others.
                                            .....Respondents




The Court made the following:
                                                                          PNR,J &PSS,J
                                                                  W.P.No.22140 of 2021
                                       2


            HONOURABLE SRI JUSTICE P.NAVEEN RAO
                             &
            HONOURABLE SMT JUSTICE P.SREE SUDHA

                 WRIT PETITION NO.22140 OF 2021

ORDER:

This Writ Petition is filed praying to grant the following relief:

" to issue a Writ of Habeas Corpus under Article 226 of the Constitution of India directing the respondents to produce Sri Khazim Hashmi S/o. Md.Hashmi, now detained at Central Prison, Cherlapalli, Medchal District, before this Honourable Court and he may be ordered to be released forthwith/set at liberty after declaring his detention vide No.72/PDCELL/CYB/2021, dated 04.06.2021 passed by the 2nd respondent and consequential confirmation orders passed by the 1st respondent as illegal, unconstitutional and void."

2. Heard Ms. B.Mohana Reddy, learned counsel for the petitioner,

and the learned Assistant Government Pleader for Home, representing

the learned Advocate General, appearing for the respondents 1 to 3.

3. Crime No.239 of 2021 is registered against petitioner in Cyber

Crime Police Station, Cyberabad, for the offences punishable under

Section 420 of I.P.C. and Sections 66C and 66D of the Information

Technology Act. He is shown as accused no.2. Taking note of his

involvement in the above crime, the respondent No.2 passed the order

of detention, dated 04.06.2021. According to respondent No.2, the

detenu is a 'Cyber Crime Offender'; that he has been indulging in the

acts of drawing amount from the NIRD account hacking PFMS system

through Digital Signature Mode using ID proof of his customer

fraudulently; and trying to siphon of public money in an organized

way in the limits of Cyberabad Police Commissionerate. By such acts,

detenue is creating large scale fear and insecurity among the public,

which are prejudicial to the maintenance of public order. The

decision to resort to preventive detention was confirmed by

respondent No.1.

PNR,J &PSS,J W.P.No.22140 of 2021

4. The issue for determination is "Whether the impugned

detention order vide No.72/PD-CELL/CYB/2021, dated 4.6.2021,

passed by the respondent No.2, and the consequential confirmation

order passed by respondent No.1, are liable to be set aside?"

5. Learned counsel for petitioner contends that based on

involvement in one crime, it was wholly illegal to resort to preventive

detention. She further submits that in the same crime, Mr. Rambhu

Prasad is accused No.1. Against him also, detention order was

passed. Challenging the detention order, he filed W.P.No.23035 of

2021. This Court sets aside the detention order. She has circulated

copy of the judgment in W.P.No.23035 of 2021 and prayed to grant

same relief.

6. In W.P.No.23035 of 2021, this Court held that, "As held in

Vijay Narain Singh vs. State of Bihar1 case, a single act or omission

cannot be characterized as a habitual act because, the idea of 'habit'

involves an element of persistence and a tendency to commit or repeat

similar offences, which is patently not present in the instant case.

Since the detenu has allegedly committed offences punishable under

I.P.C. and the said special laws, the said crime can be effectively dealt

with under the provisions of the Penal Code and the said special law

and there was no need for the detaining authority to invoke the

draconian preventive detention law. The detaining authority cannot

be permitted to subvert, supplant or substitute the punitive law of

land, by ready resort to preventive detention."

7. This Court further held, "The subject single case can certainly

be tried under the normal criminal law/special law and, if convicted,

can certainly be punished by the Court of law. Thus, the instant

(1984) 3 SCC 14 PNR,J &PSS,J W.P.No.22140 of 2021

single case does not fall within the ambit of the words "public order"

or "disturbance of public order". Instead, it falls within the scope of

the words "law and order". Hence, there was no need for the detaining

authority to pass the impugned detention order. For the foregoing

reasons, the impugned orders are legally unsustainable and are liable

to be set aside."

8. The petitioner in W.P.no.23035 of 2021 and this petitioner are

involved in the same crime on the allegation of committing Cyber

Crime and so far both are involved in solitary crime. This petitioner is

accused No.2 and the petitioner in W.P.No.23035 of 2021 is accused

No.1. This petitioner was also granted conditional bail. In the facts of

this case, we are in agreement with the view expressed by the Division

Bench in W.P.No.23035 of 2021.

9. In the result, the Writ Petition is allowed. The impugned

detention order vide No.72/PD-CELL/CYB/2021, dated 4.06.2021,

passed by the respondent No.2, and the consequential confirmation

order passed by respondent No.1 are hereby set aside. The

respondents are directed to set the detenu, namely Khazim Hashmi

s/o. Md.Hashmi, at liberty forthwith, if he is no longer required in any

other criminal case. Pending Miscellaneous Petitions, if any, shall

stand closed.

___________________________ JUSTICE P.NAVEEN RAO

___________________________ JUSTICE P.SREE SUDHA Date: 07.12.2021

Note: Issue C.C. forthwith.

(b/o.) kkm PNR,J &PSS,J W.P.No.22140 of 2021

HONOURABLE SRI JUSTICE P.NAVEEN RAO & HONOURABLE SMT JUSTICE P.SREE SUDHA

WRIT PETITION NO.22140 OF 2021

Date: 07.12.2021 kkm