Telangana High Court

Mahjabeen Begum vs The State Of Telangana And 2 Others on 1 October, 2021

Bench: A.Rajasheker Reddy, G Sri Devi

           THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
                               AND
                 THE HON'BLE JUSTICE G. SRI DEVI

                         WRIT PETITION No. 14323 of 2021


ORDER: (Per Hon'ble Justice G. Sri Devi)

      Smt. Mahjabeen Begum, the petitioner herein, has filed this Habeas

Corpus Petition on behalf of her husband, Syed Sahil @ Shooter, S/o. Syed

Akbar, aged about 20 years, the detenu, challenging the detention order passed

by the 2nd respondent-Commissioner of Police, Hyderabad City, vide SB (I)

No.83/PD-2/HYD/2021, dated 12.05.2021, 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 and While Collar of Financial Offenders, Cyber Crime Offenders and

White Collar of Financial Offenders Act, 1986 (Act No.1 of 1986) (hereinafter

referred to as 'the Act') and the consequential confirmation order passed by the

1st respondent approving the detention vide G.O.Rt.No.1126, General

Administration (SPL.(Law & Order) Department, dated 20.05.2021, as being

illegal, arbitrary, unconstitutional and violative of Article 21 and 22 of the

Constitution of India.

Heard the learned Counsel for the parties and perused the impugned

order and the material available on record.

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

cases registered against the detenu in Crime No.410 of 2020 of Falaknuma

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Police Station; Crime No.2 of 2021 of Langer House Police Station, and Crime

No.11 of 2021 of Mailardevpally Police Station, Cyberabad, the 2nd respondent

passed the impugned detention order, dated 12.05.2021. According to the 2nd

respondent, the detenu is a habitual offender and has committed the offences of

kidnapping a baby girl and theft of cell phones and cash from the passengers

traveling in sharing auto-rickshaws in the limits of Hyderabad and Cyberabad

Police Commissionerates, along with his associates in an organized manner,

and caused fear in the minds of the general public and as such the activities of

the detenu fall within the meaning of "Goonda" as defined under clause (g) of

Section 2 of the Act. With a view to prevent the detenu from acting in a manner

prejudicial to the maintenance of public order, the impugned detention order,

dated 12.05.2021, was passed, which was confirmed by the 1st respondent.

Learned Counsel for the petitioner submits that the crimes alleged to

have been committed by the detenu, which are relied upon by the detaining

authority, are within the realm of 'law and order' and they do not affect the

public order. He further submits that the detenu was released on 12.03.2021,

and the detention order was passed on 12.05.2021 and during this period, he

did not commit any offence, and this fact was not taken into consideration by

the detaining authority. He submits that the detenu has also not violated any

conditions of bail, and if there are any such violations, it is always open to the

prosecution to seek for cancellation of the bail orders, but there is no

justification on the part of the detaining authority to invoke the draconian

preventive laws, defeating the bail granted by the competent Court and also

affecting the liberty guaranteed under Article 21 of the Constitution of India.

On the other hand, learned Assistant Government Pleader submits that

the detenu was involved in kidnapping a baby girl and he is in the habit of

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committing offences, and after release on bail, he was again committed

offences, and in such a manner, he has committed three offences and thus he is

a habitual offender. He further submits that there is no requirement to file a

petition for cancellation of bail and based on the criminal activities of the

detenu, and if they are prejudicial to the maintenance of public order, detention

order can be passed under the preventive detention laws. In support of his

contentions, learned Assistant Government Pleader for Home, relied on the

order passed by this Court in W.P.No.1826 of 2021 dated 10.08.2021. He also

submits that the detaining authority considering the material available on

record, by recording his subjective satisfaction, passed the impugned order of

detention and the same may not be interfered with by this Court.

In view of the submissions made by both the sides, the point that arises

for consideration is "Whether the detention order, dated 12.05.2021, passed by

the 2nd respondent, and the confirmation order, dated 20.05.2021, passed by the

1st respondent are liable to be set aside or not?"

In catena of decisions, the Apex Court as well as this Court has held that

there is a vast difference between "law and order" and "public order". The

offences which are committed against a particular individual fall within the

ambit of "law and order". It is only when the public at large is adversely

affected by the criminal activities of a person, the conduct of a person is said to

disturb "the public order". Moreover, individual cases can be dealt with by the

criminal justice system. Therefore, there is no need for the detaining authority

to invoke the draconian preventive detention laws against an individual. The

invoking of such law adversely affects the fundamental right of personal liberty

which is guaranteed and protected by Article 21 of the Constitution of India.

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Hence, according to the Apex Court, the detaining authority should be wary of

invoking the immense power under the Act.

The Apex Court in V.Shantha v. State of Telangana and Others1 while

considering the various provisions of the Act has held as under:

"The detenu was the owner of Laxmi Bhargavi Seeds, district distributor of Jeeva Aggri Genetic Seeds. Three FIRs were lodged against the detenu and others under Sections 420, 120-B, 34 IPC and Sections 19 and 21 of the Seeds Act, 1966. It was alleged that chilli seeds sold were spurious, as they did not yield sufficient crops, thus causing wrongful loss to the farmers, and illegal gains to the accused. Whether the seeds were genuine or not, the extent of the yield, are matters to be investigated in the FIRs. Section 19 of the Seeds Act provides for penalty by conviction and sentence also. Likewise, Section 20 provides for forfeiture. Sufficient remedies for the offence alleged were, therefore, available and had been invoked also under the ordinary laws of the land for the offence alleged. The order of preventive detention passed against the detenu states that his illegal activities were causing danger to poor and small farmers and their safety and financial wellbeing. Recourse to normal legal procedure would be time-consuming, and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the Preventive Detention Act as an extreme measure to insulate the society from his evil deeds. The rhetorical incantation of the words "goonda" or "prejudicial to maintenance of public order" cannot be sufficient justification to invoke the Draconian powers of preventive detention. To classify the detenu as a "goonda" affecting public order, because of inadequate yield from the chilli seed sold by him and prevent him from moving for bail even is a

(2017) 4 SCC 577

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gross abuse of the statutory power of preventive detention. The grounds of detention are ex facie extraneous to the Act."

The Apex Court further held that preventive detention involves

detaining of a person without trial in order to prevent him/her from

committing certain types of offences. But such detention cannot be made a

substitute for the ordinary law, and absolve the investigating authorities of

their normal functions of investigating crimes which the detenu may have

committed. After all, preventive detention in most cases is for a year only, and

cannot be used as an instrument to keep a person in perpetual custody without

trial.

It is also appropriate to refer to the decision of the Apex Court in Rekha

Vs. State of Tamil Nadu2, wherein it is held as follows:

"23. ....criminal cases are already going on against the detenu under various provisions of the Indian Penal Code as well as under the Drugs and Cosmetics Act, 1940 and if he is found guilty, he will be convicted and given appropriate sentence. In our opinion, the ordinary law of the land was sufficient to deal with this situation, and hence, recourse to the preventive detention law was illegal."

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 instant case, the detaining authority relied on three crimes i.e.,

Crime No.410 of 2020 of Falaknuma Police Station, registered for the offence

punishable under Section 363 of I.P.C.; Crime No.2 of 2021 of Langer House

Police Station, Hyderabad, registered for the offences punishable under

(2011) 5 SCC 244

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Sections 379 and 420 of I.P.C. and Crime No.11 of 2021 of Mailardevpally Police

Station, Cyberabad, registered for the offences punishable under Sections 379

and 411 of I.P.C., against the detenu for preventively detaining him.

In the Nine-Judge Constitution Bench decision in I.R. Coelho v. State of

T.N.3 the Apex Court has observed as follows:

"109. ......It is necessary to always bear in mind that fundamental rights have been considered to be (the) heart and soul of the Constitution.

49. ..... Fundamental rights occupy a unique place in the lives of civilized societies and have been described in judgments as "transcendental", "inalienable", and primordial."

As seen from the material placed on record, the detaining authority relied

upon the aforesaid three crimes for preventively detaining the detenu. Further,

the detenu was arrested in connection with the said crimes and subsequently, he

moved bail petitions in the said crimes and he was granted bail by the Courts

concerned and released from jail. Under these circumstances, the apprehension

of the detaining authority that since the detenu was released on bail, there is

imminent possibility of his committing similar offences, unless he is prevented

from doing so by an appropriate order of detention, is highly misconceived. If

the detenu is enlarged on bail and violates the conditions of bail or indulges in

similar crimes while on bail, the concerned authority/Public Prosecutor is free

to move the concerned Court for getting the bail cancelled. If the police are

vigilant enough to collect the data relating to the alleged offences and to furnish

the relevant information to the learned Public Prosecutor, the same could be

placed by the learned Public Prosecutor before the concerned Court.

Moreover, criminal law was already set into motion against the detenu. Since

the detenu has allegedly committed offences punishable under the Indian Penal

2007 (2) SCC 1

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Code, the said crimes can be effectively dealt with under the provisions of the

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

draconian preventive detention laws. The detaining authority cannot be

permitted to subvert, supplant or substitute the punitive law of land, by ready

resort to preventive detention.

Grave as the offences may be, they relate to kidnapping and theft. So, no

inference of disturbance of public order can be drawn. These types of cases can

certainly be tried under the normal criminal justice system. And, if convicted,

can certainly be punished by the Court of law. Hence, there was no need for the

detaining authority to pass the detention order.

In Yumman Ongbi Lembi Leima v. State of Manipur4, the Supreme

Court, after referring to the case-law on the subject, held as under:-

""23. Having carefully considered the submissions made on behalf of the respective parties, we are inclined to hold that the (sic exercise of) extraordinary powers of detaining an individual in contravention of the provisions of Article 22 (2) of the Constitution was not warranted in the instant case, where the grounds of detention do not disclose any material which was before the detaining authority, other than the fact that there was every likelihood of Yumman Somendro being released on bail in connection with the cases in respect of which he had been arrested, to support the order of detention.

27. As has been observed in various cases of similar nature by this Court, the personal liberty of an individual is the most precious and prized right guaranteed under the Constitution in Part III thereof. The State has been granted the power to curb such rights under criminal laws as also under the laws of preventive detention, which, therefore, are required to be exercised with due caution as

(2012) 2 SCC 176

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well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order. An individual incident of an offence under the Penal Code, however heinous, is insufficient to make out a case for issuance of an order of preventive detention."

In Mungala Yadamma v. State of A.P.5 the Apex Court held as under:-

"7. Having considered the submissions made on behalf of the respective parties, we are unable to accept the submissions made on behalf of the State in view of the fact that the decision in Rekha's case (supra), in our view, clearly covers the facts of this case as well. The offences complained of against the appellant are of a nature which can be dealt with under the ordinary law of the land. Taking recourse to the provisions of preventive detention is contrary to the constitutional guarantees enshrined in Articles 19 and 21 of the Constitution and sufficient grounds have to be made out by the detaining authorities to invoke such provisions.

9. Preventive detention involves detaining of a person without trial in order to prevent him/her from committing certain types of offences. But such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes which the detenu may have committed. After all, preventive detention in most cases is for a year only and cannot be used as an instrument to keep a person in perpetual custody without trial."

Relying upon the law laid down in Yumman Ongbi Lembi Leima v. State

of Manipur (4 supra) , recently, the Apex Court in Banka Sneha Suseela v.

State of Telangana and others6 held as under:-

(2012) 2 SCC 386

Crl.A.No.733 of 2021, SC, dt.02.08.2021

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"On the facts of this case, as has been pointed out by us, it is clear that at the highest, 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 the springboard to move under a preventive detention statute. We, therefore, quash the detention order on this ground."

Having regard to the principles of law laid down by the Apex Court in

the judgments referred to above and for the aforesaid reasons, we are of the

opinion that the impugned detention order is legally unsustainable.

In the result, the Writ Petition is allowed. The impugned detention order

passed by the 2nd respondent vide SB (I) No.83/PD-2/HYD/2021, dated

12.05.2021, and the consequential confirmation order of the 1st respondent

approving the detention vide G.O.Rt.No.1126, General Administration (SPL.

(Law & Order) Department, dated 20.05.2021, are hereby set aside. The

respondents are directed to set the detenu, namely Syed Sahil @ Shooter, S/o.

Syed Akbar, at liberty forthwith, if he is no longer required in any other

criminal case.

The Miscellaneous Petitions, if any, pending in this Writ Petition shall