Shajahan vs The State Of Telangana And 3 Others
2021 Latest Caselaw 3484 Tel

     IN THE HIGH COURT OF JUDICATURE FOR THE STATE OF
                        TELANGANA
                           ********

WRIT PETITION NO.16921 OF 2021

Between:

Shajahan w/o. Shaik Ismail, Aged about 60 years, occu: Housewife, r/o. H.No.16-2-32, Opp: Badi Masjid, Barkas, Hyderabad.

.....Petitioner

And

The State of Telangana, rep.by its Prl.Secretary, General Administration Department, Secretariat, Hyderabad and others.

                                                       .....Respondents



DATE OF JUDGMENT PRONOUNCED                  :       16.11.2021



             THE HON'BLE SRI JUSTICE P.NAVEEN RAO
                               &
             THE HON'BLE SMT JUSTICE P.SREE SUDHA


1.      Whether Reporters of Local Newspapers :      No
         may be allowed to see the Judgments ?


2.      Whether the copies of judgment may be :      Yes
        marked to Law Reporters/Journals


3.     Whether Their Lordship wish to            :   No
       see the fair copy of the Judgment ?
                                                              PNR,J & PSS,J
                                                        WP No.16921 of 2021





            *THE HON'BLE SRI JUSTICE P.NAVEEN RAO
                             &
            THE HON'BLE SMT JUSTICE P.SREE SUDHA



+WRIT PETITION No.16921 of 2021


%16.11.2021


# Shajahan w/o. Shaik Ismail,
Aged about 60 years, occu: Housewife,
r/o. H.No.16-2-32, Opp: Badi Masjid,
Barkas, Hyderabad.

                                                         ...Petitioner

                      Vs.

$ The State of Telangana, rep.by its
Prl.Secretary, General Administration
Department, Secretariat, Hyderabad
and others.

                                                    .... Respondents


!Counsel for the petitioner           : Ms. Bibi Ayesha Mohammed

Counsel for the Respondents: Government Pleader appearing for learned Additional Advocate General for respondents.

<Gist :

>Head Note:

? Cases referred:

(2007) 2 SCC 1 (2011) 5 SCC 244 (1966) 1 SCR 709 2021 SCC Online SC 530 (Crl.A.No.733 of 2021) (1970) 3 SCC 746 (1984) 3 SCC 14 PNR,J & PSS,J WP No.16921 of 2021

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

WRIT PETITION No.16921 of 2021

ORDER : (per Hon'ble Sri Justice P.Naveen Rao)

The Commissioner of Police & Additional District Magistrate

(Executive), Hyderabad, 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 26.03.2021. The Commissioner

holds that the detenu has been committing series of offences of

theft of cell phones and cash from the passengers travelling in

sharing auto-rickshaws and theft of two wheeler vehicles in the

limits of Hyderabad and Cyberabad Police Commissionerate along

with his associates, in an organized manner, creating large scale

fear and panic among the general public affecting the public order.

The Government accorded approval to the said detention order.

The Advisory Board reviewed the case on 17.05.2021 and affirmed

the decision to detain. Based on the said report of the Advisory

Board, the Government passed orders of confirmation of detention

under Section 12(1) read with Section 13 of the Act No.1 of 1986,

valid for a period of 12 months from the date of detention i.e., PNR,J & PSS,J WP No.16921 of 2021

16.04.2021. Petitioner, who is the mother of the detenu, assails

the said order of detention.

2. Heard Ms. Bibi Ayesha Mohammed, 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 five 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.

Against his arrest, detenu approached the competent criminal

Court and on due assessment of material on record, criminal Court

granted bail. After release on bail, he was not involved in any

further crime and, therefore, based on the alleged offences the

Commissioner of Police ought not to have exercised the

extraordinary power of detention. He further submits that

detention order was passed against one Mr.Syed Sahil on the

ground of involvement in the crimes of kidnapping a baby girl,

theft of cell phones and cash from the passengers travelling in

sharing auto-rickshaws and two of the crimes are same. Against

the order of detention of Mr.Syed Sahil, W.P.No.14323 of 2021 was

filed and this Court allowed the said writ petition setting aside the

order of detention.

4. Though learned Government Pleader does not dispute the

judgment rendered by this Court in W.P.No.14323 of 2021 setting PNR,J & PSS,J WP No.16921 of 2021

aside the detention, he submits that said detenu was involved in

three crimes, whereas the detenue herein involved in five crimes

and is classified as 'goonda'. Therefore, detenu is not entitled to the

same relief as granted in W.P.No.14323 of 2021. As the detenu is

habituated in committing crimes of theft of mobile phones, cash

and two wheelers, causing lot of hardship and suffering to the

innocents, his enlargement would affect the public order.

5. From the detention order, it is clear that Crime No.31 of

2020 registered in Raidurgam Police Station, Crime No.8 of 2020

registered in Kachiguda Police Station and Crime No.1157 of 2020

registered in Rajendranagar Police Station are under Section 379

IPC alleging theft of two wheeler motorcycles. In Crime No.11 of

2021 registered in Mailardevpally Police Station under Sections

379 and 411 IPC, it is alleged that detenu boarded an auto-

rickshaw at Aramghar cross roads and on the way detenu and his

associates committed theft of cell phone and cash of Rs.2,000/-

from the complainant by diverting his attention under the guise of

seat adjustment; in Crime No.2 of 2021 was registered in Langer

House Police Station under Sections 379 and 420 IPC, it is alleged

that detenu along with his associates were travelling in sharing

auto-rickshaw and cheated the passenger boarded at Kishanbagh,

committed theft of cell phone by diverting his attention under the

guise of seat adjustment.

6. The issue for consideration is whether in the facts of the

case preventive detention of detenu is valid ?

7. Resort to preventively detain a person is made when the

detaining authority assumes that allowing the person to be free PNR,J & PSS,J WP No.16921 of 2021

keeping the detenu may adversely affect or 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 is 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 State resorting to illegal means. The Court is reminded

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.

8. 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:

"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

(2007) 2 SCC 1 PNR,J & PSS,J WP No.16921 of 2021

"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 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 PNR,J & PSS,J WP No.16921 of 2021

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]."

9. 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."

10. 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:

"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

(2011) 5 SCC 244

(1966) 1 SCR 709 PNR,J & PSS,J WP No.16921 of 2021

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."

11. In Banka Sneha Sheela Vs. The State of Telangana4, 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.

11.1. 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

2021 SCC Online SC 530 (Crl.A.No.733 of 2021), PNR,J & PSS,J WP No.16921 of 2021

- 10 -

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."

11.2. 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 feeling of insecurity among the general public or any section thereof at large." (emphasis supplied)

11.3. 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

(1970) 3 SCC 746 PNR,J & PSS,J WP No.16921 of 2021

- 11 -

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. ......"

12. 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)

13. In the case on hand, out of five crimes, three crimes relate to

theft of two wheeler motorcycles and two crimes relate to theft of

cell phones, in addition, in one crime theft of cash is also alleged.

These are normal law and order crimes, which require

investigation, filing of final report and to prosecute them before the

jurisdictional criminal Court. 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]. By very nature committing

of such crimes does not affect in any manner the public order.

14. If the detaining authority apprehends that since the detenu

was released on bail, there would be imminent possibility of his

committing similar offences, nothing prevented the detaining

(1984) 3 SCC 14 PNR,J & PSS,J WP No.16921 of 2021

- 12 -

authority in seeking cancellation of the bail. Since criminal law is

set in motion against the detenu, the same shall be taken to logical

end. No justification is made out to resort to extraordinary power

of preventive detention.

15. This Court allowed the Writ Petition No.14323 of 2021

setting aside the detention of co-accused in two out of the five

crimes registered against this detenu. Those two crimes relate to

theft of mobile phones in shared auto-rickshaws.

16. For the aforesaid reasons, the order of detention is not

sustainable and the same is accordingly set aside. Writ Petition is

allowed and the respondents are directed to set the detenu,

namely, Shaik Mahamood @ Guddu s/o. Shaik Ismail, r/o.near

Osmania Hotel, Wade-e-Mahabooba, Shaheen Nagar, Saroornagar,

Ranga Reddy district, n/o. Maharashtra State, 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 PNR,J & PSS,J WP No.16921 of 2021

- 13 -

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

WRIT PETITION No.16921 of 2021

Date: 16.11.2021 KKM