Telangana High Court
Kolipaka Swapna vs The State Of Telangana on 16 November, 2021
Bench: P Naveen Rao, P.Sree Sudha
HONOURABLE SRI JUSTICE P.NAVEEN RAO
&
HONOURABLE SMT JUSTICE P.SREE SUDHA
WRIT PETITION No.17056 of 2021
Date: 16.11.2021
Between:
Kolipaka Swapna, w/o. Ramesh,
Aged about 38 years, occu; Household,
r/o.1-71/1, Mallikarjuna Nagar,
Julapalle, Karimnagar district.
.....Petitioner
And
The State of Telangana,
Rep.by its Prl.Secretary,
Home Department,
Secretariat, Hyderabad and another.
.....Respondents
The Court made the following:
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HONOURABLE SRI JUSTICE P.NAVEEN RAO
&
HONOURABLE SMT JUSTICE P.SREE SUDHA
WRIT PETITION No.17056 of 2021
ORDER : (per Hon'ble Sri Justice P.Naveen Rao)
The Commissioner of Police & Additional District Magistrate
(Executive), Ramagundam, in exercise of power under Section 3(2)
of "The Telangana Prevention of Dangerous Activities of Boot-
leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic
Offenders, Land-Grabbers, Spurious Seed Offenders, Insecticide
Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake
Document Offenders, Gaming Offenders, Sexual Offenders,
Explosive Substances Offenders, Arms Offenders, Cyber Crime
Offenders and White Collar of Financial Offenders Act, 1986 (Act
No.1 of 1986), passed orders of detention dated 04.07.2021. The
Commissioner holds that the detenu has been committing series of
offences of theft of Solar Power Plant power cables and conveyor
belt of Coal Handling Plant belongs to Singareni Collieries
Company Limited (SCCL). He assesses that theft of power cables
and conveyor belt caused huge financial loss to the SCCL, which
may cause interruption to the Power Generation and supply of
power to the coal mines as well as cause interruption to the power
generation by NTPC, Ramagundam, which supplies power to the
States in South India, thereby adversely affecting the public order
and causing huge loss to the public property. The Government
accorded approval to the said detention order. Against the said
detention, the petitioner, who is the wife of the detenu filed this
Writ Petition.
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2. Heard Mr. V.Raghunath learned counsel for petitioner and
the learned Government Pleader appearing for learned Additional
Advocate General for respondents.
3. Learned counsel for petitioner contends that the offences
alleged against the detenu are only minor offences under Indian
Penal Code, and merely because three crimes were registered
against him and merely because he is categorized as 'goonda', is no
ground to resort to preventive detention. The offences alleged
against the detenu are crimes against the individuals. They are
only affecting the 'law and order' and in no manner they affect the
public order and, therefore, based on the alleged offences, the
Commissioner of Police ought not to have exercised the
extraordinary power of detention.
4. Per contra, learned Government Pleader appearing for
learned Additional Advocate General submits that the detenu is
habituated in committing crimes of theft and unless he is detained
there is every possibility of the detenu indulging in perpetrating
crimes causing hardship and suffering to public at large. He and
his associates are habituated to committing theft of materials
which are crucial for generation of electricity and their illegal
actions may result in disruption of power supply. He submits that
respondents have taken due diligence in assessing the conduct of
the detenu and he was detained in strict compliance of law. He
therefore submits that no cause is made out to set aside the order
of detention. Releasing the detenu would disturb public order.
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5. The issue for consideration is whether in the facts of the case
preventive detention of detenu is valid ?
6. Resort to preventively detain a person is made when the
detaining authority assumes that by allowing the person to be free
the detenu may adversely affect or is likely to adversely affect the
maintenance of public order. Preventive detention of a person is an
extreme measure impinging a citizen's right to life and liberty. Law
enforcing agency can resort to such extreme measure only when
the conduct of detenu affects or likely to affect maintenance of
public order and ordinary law enforcing mechanism is not
sufficient to prevent such person from indulging in illegal activities.
It being an extreme measure the law enabling such power has to
be strictly construed. The writ Court has to keep eternal vigilance
to ensure right to life and liberty is not affected by resort by the
State to illegal means. The Court is remanded of the fact that
resort to preventive detention is on the allegation of involvement in
alleged crime(s) as assessed by the detaining authority, which
is/are yet to be proved. It is in the realm of speculation. The
Court is required to see whether procedural safeguards are strictly
complied before detaining a person. What is paramount to note is
whether the offence(s) complained of against detenu is/are of a
nature which can be dealt with under the ordinary law of the land.
If the answer is yes, the detention order is ex facie illegal.
7. It is apt to note the observations of the Hon'ble Supreme
Court in I.R. Coelho Vs State of Tamil Nadu1. They read as
under:
1
(2007) 2 SCC 1
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"49. Granville Austin has been extensively quoted and relied on in
Minerva Mills [(1980) 3 SCC 625] . Chandrachud, C.J. observed that to
destroy the guarantees given by Part III in order to purportedly achieve
the goals of Part IV is plainly to subvert the Constitution by destroying
its basic structure. Fundamental rights occupy a unique place in the
lives of civilised societies and have been described in judgments as
"transcendental", "inalienable" and "primordial". They constitute the ark
of the Constitution (Kesavananda Bharati [(1973) 4 SCC 225] at SCC pp.
991, 999). The learned Chief Justice held that Parts III and IV together
constitute the core of commitment to social revolution and they, together,
are the conscience of the Constitution. It is to be traced for a deep
understanding of the scheme of the Indian Constitution. The goals set
out in Part IV have, therefore, to be achieved without the abrogation of
the means provided for by Part III. It is in this sense that Parts III and IV
together constitute the core of our Constitution and combine to form its
conscience. "Anything that destroys the balance between the two parts
will ipso facto destroy an essential element of the basic structure of our
Constitution." (emphasis supplied) (Minerva Mills [(1980) 3 SCC 625] ,
SCC p. 654, para 57.) Further observes the learned Chief Justice, that
the matters have to be decided not by metaphysical subtlety, nor as a
matter of semantics, but by a broad and liberal approach. We must not
miss the wood for the trees. A total deprivation of fundamental rights,
even in a limited area, can amount to abrogation of a fundamental right
just as partial deprivation in every area can. The observations made in
the context of Article 31-C have equal and full force for deciding the
questions in these matters. Again the observations made in para 70 (SCC
p. 659) are very relevant for our purposes. It has been observed that
(Minerva Mills case [(1980) 3 SCC 625] , para 70, p. 659)
"[I]f by a constitutional amendment, the application of
Articles 14 and 19 is withdrawn from a defined field of
legislative activity, which is reasonably in public interest,
the basic framework of the Constitution may remain
unimpaired. But if the protection of those articles is
withdrawn in respect of an uncatalogued variety of laws,
fundamental freedoms will become a 'parchment in a
glass case' to be viewed as a matter of historical
curiosity."
These observations are very apt for deciding the extent and scope
of judicial review in cases wherein entire Part III, including Articles 14,
19, 20, 21 and 32, stand excluded without any yardstick.
.............
109. Dealing with Articles 14, 19 and 21 in Minerva Mills case [(1980) 3
SCC 625] it was said that these clearly form part of the basic structure of
the Constitution and cannot be abrogated. It was observed that three
articles of our Constitution, and only three, stand between the heaven of
freedom into which Tagore wanted his country to awake and the abyss of
unrestrained power. These articles stand on altogether different footing.
Can it be said, after the evolution of the basic structure doctrine, that
exclusion of these rights at Parliament's will without any standard,
cannot be subjected to judicial scrutiny as a result of the bar created by
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Article 31-B? The obvious answer has to be in the negative. If some of the
fundamental rights constitute a basic structure, it would not be open to
immunise those legislations from full judicial scrutiny either on the
ground that the fundamental rights are not part of the basic structure or
on the ground that Part III provisions are not available as a result of
immunity granted by Article 31-B. It cannot be held that essence of the
principle behind Article 14 is not part of the basic structure. In fact,
essence or principle of the right or nature of violation is more important
than the equality in the abstract or formal sense. The majority opinion in
Kesavananda Bharati case [(1973) 4 SCC 225] clearly is that the
principles behind fundamental rights are part of the basic structure of
the Constitution. It is necessary to always bear in mind that fundamental
rights have been considered to be heart and soul of the Constitution.
Rather these rights have been further defined and redefined through
various trials having regard to various experiences and some attempts to
invade and nullify these rights. The fundamental rights are deeply
interconnected. Each supports and strengthens the work of the others.
The Constitution is a living document, its interpretation may change as
the time and circumstances change to keep pace with it. This is the ratio
of the decision in Indira Gandhi case [1975 Supp SCC 1]."
8. In Rekha Vs State of Tamil Nadu2, the Hon'ble Supreme
Court guides the High Courts on how to deal with cases of
preventive detention. The Supreme Court held:
"30. Whenever an order under a preventive detention law is challenged
one of the questions the court must ask in deciding its legality is: was
the ordinary law of the land sufficient to deal with the situation? If the
answer is in the affirmative, the detention order will be illegal. In the
present case, the charge against the detenu was of selling expired drugs
after changing their labels. Surely the relevant provisions in the Penal
Code and the Drugs and Cosmetics Act were sufficient to deal with this
situation. Hence, in our opinion, for this reason also the detention order
in question was illegal."
9. In catena of decisions, the Hon'ble Supreme court and this
Court considered what is meant by 'law and order', 'public order'
and 'security of State'. Leading case on the subject is Ram
Manohar Lohia vs. State of Bihar3. It was a case of detention
under the Defense of India Rules. Hon'ble Supreme Court held as
under:
(2011) 5 SCC 244
(1966) 1 SCR 709
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"54. ...... Does the expression "public order" take in every kind of disorders
or only some of them? The answer to this serves to distinguish "public
order" from "law and order" because the latter undoubtedly takes in all of
them. Public order if disturbed, must lead to public disorder. Every breach
of the peace does not lead to public disorder. When two drunkards quarrel
and fight there is disorder but not public disorder. They can be dealt with
under the powers to maintain law and order but cannot be detained on the
ground that they were disturbing public order. Suppose that the two
fighters were of rival communities and one of them tried to raise communal
passions. The problem is still one of law and order but it raises the
apprehension of public disorder. Other examples can be imagined. The
contravention of law always affects order but before if can be said to affect
public order, it must affect the community or the public at large. A mere
disturbance of law and order leading to disorder is thus not necessarily
sufficient for action under the Defence of India Act but disturbances which
subvert the public order are. A District Magistrate is entitled to take action
under Rule 30(1)(b) to prevent subversion of public order but not in aid of
maintenance of law and order under ordinary circumstances.
55. It will thus appear that just as "public order" in the rulings of this
Court (earlier cited) was said to comprehend disorders of less gravity than
those affecting "security of State", "law and order" also comprehends
disorders of less gravity than those affecting "public order". One has to
imagine three concentric circles. Law and order represents the largest circle
within which is the next circle representing public order and the smallest
circle represents security of State. It is then easy to see that an act may
affect law and order but not public order just as an act may affect public
order but not security of the State. By using the expression "maintenance of
law and order" the District Magistrate was widening his own field of action
and was adding a clause to the Defence of India Rules."
10. In Banka Sneha Sheela vs. The State of Telangana and
others4 (Crl.A.No.733 of 2021), the detenu was detained on
28.09.2020 alleging that he was involved in five crimes committed
between October, 2017 to December, 2019 attracting Sections
420, 406 and 506 of IPC. It was alleged that he was luring general
public to invest money with an assurance of 100% return within a
short period.
2021 SCC Online SC 530
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10.1. After taking note of law declared by the Hon'ble Supreme
Court in Ram Manohar Lohia (supra), the Hon'ble Supreme Court
held,
"15. There can be no doubt that for 'public order' to be disturbed, there
must in turn be public disorder. Mere contravention of law such as
indulging in cheating or criminal breach of trust certainly affects 'law and
order' but before it can be said to affect 'public order', it must affect the
community or the public at large.
16. There can be no doubt that what is alleged in the five FIRs pertain to
the realm of 'law and order' in that various acts of cheating are ascribed to
the Detenu which are punishable under the three sections of the Penal
Code, 1860 set out in the five FIRs. A close reading of the Detention Order
would make it clear that the reason for the said Order is not any
apprehension of widespread public harm, danger or alarm but is only
because the Detenu was successful in obtaining anticipatory bail/bail from
the Courts in each of the five FIRs. If a person is granted anticipatory
bail/bail wrongly, there are well-known remedies in the ordinary law to take
care of the situation. The State can always appeal against the bail order
granted and/or apply for cancellation of bail. The mere successful obtaining
of anticipatory bail/bail orders being the real ground for detaining the
Detenu, there can be no doubt that the harm, danger or alarm or feeling of
security among the general public spoken of in Section 2(a) of the
Telangana Prevention of Dangerous Activities Act is make believe and totally
absent in the facts of the present case."
10.2. Taking note of the judgment in Madhu Limaye vs. Sub-
Divisional Magistrate5, the Hon'ble Supreme Court held,
" 20. To tear these observations out of context would be fraught with great
danger when it comes to the liberty of a citizen under Article 21 of the
Constitution of India. The reason for not adopting a narrow meaning of
'public order' in that case was because of the expression "in the interests of"
which occurs to Article 19(2) to 19(4) and which is pressed into service only
when a law is challenged as being unconstitutional for being violative of
Article 19 of the Constitution. When a person is preventively detained, it is
Article 21 and 22 that are attracted and not Article 19. Further, preventive
detention must fall within the four corners of Article 21 read with Article 22
and the statute in question. To therefore argue that a liberal meaning must
be given to the expression 'public order' in the context of a preventive
detention statute is wholly inapposite and incorrect. On the contrary,
considering that preventive detention is a necessary evil only to
prevent public disorder, the Court must ensure that the facts brought
before it directly and inevitably lead to a harm, danger or alarm or
(1970) 3 SCC 746
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feeling of insecurity among the general public or any section thereof
at large." (emphasis supplied)
10.3. On reviewing the precedent decisions, the Hon'ble Supreme
Court further held,
"34. ....... a possible apprehension of breach of law and order can be said
to be made out if it is apprehended that the detenu, if set free, will
continue to cheat gullible persons. This may be a good ground to appeal
against the bail orders granted and/or to cancel bail, but certainly cannot
provide springboard to move under a preventive detention statue. ......"
11. In Vijay Narin Singh vs State of Bihar6, the Hon'ble
Supreme Court held,
"32. ...It is well settled that the law of preventive detention is a hard law
and therefore it should be strictly construed. Care should be taken that the
liberty of a person is not jeopardized unless his case falls squarely within
the four corners of the relevant law. The law of preventive detention should
not be used merely to clip the wings of an accused who is involved in a
criminal prosecution. It is not intended for the purpose of keeping a
man under detention when under ordinary criminal law it may not be
possible to resist the issue of orders of bail, unless the material
available is such as would satisfy the requirements of the legal
provisions authorizing such detention. When a person is enlarged on
bail by a competent criminal court, great caution should be exercised
in scrutinizing the validity of an order of preventive detention which
is based on the very same charge which is to be tried by the criminal
court."
(emphasis supplied)
12. Allegations against detenu is involvement in three crimes,
i.e., (1) theft of copper cable from SCCL Solar Power Plant on the
night of 04.06.2021; (2) theft of aluminum live power cable from
SCCL Solar Power Plant on the night of 12.06.2021; and (3) theft of
conveyor of coal handling plant of SCCL on the night of
17.06.2021. It is the case of the detaining authority that based on
the confession of co-accused, the detenu was arrested on
20.06.2021 and parts of the alleged stolen items were recovered
(1984) 3 SCC 14
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from him. It is the case of prosecution that by such actions the
detenu and his associates caused huge loss of public money and
their actions would have resulted in break down of power
generated by NTPC and supplied to Southern States. According to
the Commissioner of Police, detenu's actions are prejudicial to the
maintenance of public order and should be prevented from
committing such offences.
13. However, it is seen that all the crimes reported against the
detenu are under Section 379 IPC. From the assessment of
material considered by the Commissioner of Police, it is seen that
detenu was involved in three crimes earlier, but reason for
detention is involvement in three crimes alleged to have been
committed within a span of about two weeks in the month of June,
2021.
14. Thus, what is alleged against the detenu are offences of
theft, that are normal 'law and order' crimes, which require
investigation, filing of final report and to prosecute before the
jurisdictional criminal Court. By very nature of alleged crimes,
they do not affect in any manner the public order. In the facts of
this case, it cannot be said that the crimes registered against
petitioner inevitably lead to a harm, danger or alarm or feeling of
insecurity among the general public or any section thereof [Banka
Sneha Sheela vs. State of Telangana and others]. It cannot be
said the Police have no clue if the detenu continues to indulge in
such crimes.
15. In the facts of this case, we are of the opinion on that, the
order of detention is not sustainable and the same is accordingly
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set aside. Though several other grounds are raised by the
petitioner, we have not expressed opinion on those grounds of
challenge to the detention order as we are satisfied that prima facie
resort to power under Section 3(2) of the Act No.1 of 1986 is not
warranted. Writ Petition is allowed and the respondents are
directed to set the detenu, namely, Kolipaka Ramesh @ Rambabu,
s/o.Rayamallu, Aged 42 years, r/o.Mallikarjuna Nagar, Julapalli
village of Kamanpur Mandal, Peddapalli district, 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: 16.11.2021
Note: Issue C.C. forthwith.
(b/o.)
kkm
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HONOURABLE SRI JUSTICE P.NAVEEN RAO
&
HONOURABLE SMT JUSTICE P.SREE SUDHA
WRIT PETITION No.17056 of 2021
Date: 16.11.2021
KKM
