Jithy Abhilash vs The State Of Telangana And 2 Others
2021 Latest Caselaw 2784 Tel

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

                   WRIT PETITION No. 12462 of 2021


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


      The present Writ of Habeas Corpus is filed by Smt. Jithy Abhilash,

seeking a direction to the respondents to produce her husband Abhilash

Thomas, S/o. Thomas, now detained in 3rd respondent's Prison,

Hyderabad, before this Court and to order his release forthwith after

declaring that his detention is illegal and invalid and set aside the orders

passed by the 2nd respondent vide P.D. Act No.41/PD-CELL/CYB/2021,

dated 24.04.2021, and consequential orders of the 1st respondent

approving the detention vide G.O.Rt.No.1016, General Administration

(SPL. (Law & Order) Department, dated 03.05.2021.

The facts which led to filing of the present Writ is as under:-

The detenu is Abhilash Thomas, S/o. Thomas. The 2nd respondent-

Commissioner of Police, Cyberabad Commissionerate, taking into

consideration the two crimes registered against detenu in Crime No.124

of 2021 of Gachibowli Police Station, for the offences punishable under

Sections 406, 420 of I.P.C. and Sections 4, 5, 6 read with Section 3, 2 (c) of

the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 and

Crime No.183 of 2021 of Ramachandrapuram Police Station, for the

offences punishable under Sections 406, 420 of I.P.C. and Sections 4, 5, 6

read with Section 3, 2 (c) of the Prize Chits and Money Circulation

Schemes (Banning) Act, 1978, and having satisfied that the detenu has

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been indulging in acts of cheating the gullible public in an organized

manner in the limits of Cyberabad Police Commissionerate and other

areas by making the innocent people to join in Indus Viva Health

Sciences Private Limited Company by way of selling the products as a big

business opportunity and once the members are joined, they are

pressurized to join other members in 1:1 ratio in order to earn

commissions/easy money, thereby amassed huge amounts in an

organized way by running illegal money circulation schemes in the guise

of direct selling entity, selling products to students and unemployed

youth in large; that he is a "White Collar Offender" as defined in Clause

(x) of Section 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'); that he is acting in a manner prejudicial to the maintenance

of public order; and that ordinary law under which he was booked is not

sufficient to curb his dangerous and unlawful activities for which he shall

be detained under the detention laws, passed the impugned order of

detention vide P.D. Act No.41/PD-CELL/CYB/2021, dated 24.04.2021

under Sub-Section (2) of Section 3 of the Act No.1 of 1986.

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The said detention order has been approved by the Government

under sub-section (2) of Section 3 of the Act vide G.O.Rt.No.1016, General

Administration (Spl.(Law & Order)) Department, dated 03.05.2021.

Assailing the same, the petitioner, who claims to be the wife of the

detenu, filed the present writ of Habeas Corpus. It is the case of the

petitioner that the detenu was falsely implicated in the above referred

cases. Even though the detenu was granted bail in the above referred

cases, he continued to be in judicial custody due to passing of the

impugned detention order and that the same is passed only to see that

the detenu does not come out of the jail.

Heard the learned Counsel for the parties and perused the

impugned order.

Learned Counsel appearing for the petitioner would submit that

relying only on the cases registered against the detenu in the year 2021,

the impugned detention order is passed. It is further submitted that

while passing the impugned detention order, the 2nd respondent has

failed to apply his mind to arrive at a proper subjective satisfaction as

required by the Act; and that the order and the grounds specified by the

2nd respondent do not satisfy the requisite ingredients that the detention

of the detenu is necessary for preventing the "White Collar Offences". It

is also submitted that the alleged cases do not amount to 'disturbing the

public order' and they are confined within the ambit and scope of the

word 'law and order'. Since the offences alleged are under the provisions

of Indian Penal Code, Prize Chits and Money Circulation Schemes

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(Banning) Act, 1978, the detenu can certainly be tried and convicted

under the provisions of the said Special Act and I.P.C. It is further

submitted that the cases registered against the detenu are still under

investigation and the detenu has been granted conditional bails. It is

also submitted that there is no material placed on record to show/satisfy

that unless the detenu is detained, it would not be possible to control his

habituality in continuing the criminal activities by resorting to normal

procedures and ordinary course of law. Therefore, the learned Counsel

seeks to set aside the detention order passed by the 2nd respondent as

well as the consequential order of the 1st respondent. In support of his

contention, he relied upon the Division Bench Judgment of this Court in

W.P.No.29261 of 2019 dated 23.04.2020 (Dr.Pawan Malhan v. The State

of Telangana).

On the other hand, learned Assistant Government Pleader for

Home, appearing on behalf of the learned Advocate General submits that

in the above referred cases, the detenu obtained bail from the Court

concerned, but mere granting of bail does not absolve the detenu from

the offences committed by him and that the 2nd respondent has already

moved a petition before this Court for cancellation of bail. It is further

submitted that the essential concept of preventive detention is not to

punish him for something he has done, but to prevent him from doing it.

In support of his contention, he relied on the Constitutional Bench

Judgment of the Apex Court in Haradhan Saha v. State of West Bengal1.

It is also submitted that the detenu is treated as "White Collar Offender"

AIR 1974 SC 2154

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as he has been habitually and continuously engaging himself in illegal

activities by cheating the innocent unemployed youth, college students,

retired employees, working people, house wives and general public by

enrolling them as members into M/s. Indus Viva Health Sciences Private

Limited in a binary method through promoters in the guise of direct

selling. He induced the members to join the company's scheme by

paying money into company bank accounts towards purchase of

products to earn huge commissions every month. After joining the

scheme, he used to inform them to join other members in 1:1 ratio under

their down-line to earn money or commissions. The entire system of his

enrolment of members into his company is a Pyramid scheme where the

initial members keep benefiting from the joining of new members under

their down-line and the latest members, who could not join any more

members would lose the money they invested in the scheme. As such it

is largely affecting the interest of public interest and thereby public order.

As such, it cannot be said the offences committed by the detenu relates to

'law and order' and does not affect 'public order'.

In view of the aforesaid rival submissions, the point that arises for

consideration is "Whether the detention order, dated 24.04.2021 passed

by the 2nd respondent, and the confirmation order, dated 03.05.2021

passed by the 1st respondent, are liable to be set aside or not".

In catena of decisions, the Hon'ble Supreme Court as well as this

Court have held that there is a vast difference between "law and order"

and "public order". The offences which are committed against a

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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. Hence, according to the Apex Court, the detaining

authority should be wary of invoking the immense power under the Act.

In V.Shantha v. State of Telangana and Others2 while considering

the various provisions of the Act, the Apex Court 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

(2017) 4 SCC 577

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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 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.

In fact, in Ram Manohar Lohia v. State of Bihar3, the Apex Court

has deprecated the invoking of the preventive law in order to tackle a law

and order problem. The Apex Court has observed as under:

"54. We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detained public disorder is the apprehended result. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad

AIR 1966 SC 740

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spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. 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 it 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."

In the case of Kanu Biswas v. State of West Bengal4, the Apex

Court has opined as under:

"The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. Public order is what the French call 'order publique' and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, as laid down in the above case, is: Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect

(1972) 3 SCC 831

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merely an individual leaving the tranquility of the society undisturbed?"

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

Crime No.124 of 2021 of Gachibowli Police Station, registered for the

offences punishable under Sections 406, 420 of I.P.C. and Sections 4, 5, 6

read with Section 3, 2 (c) of the Prize Chits and Money Circulation

Schemes (Banning) Act, 1978 and Crime No.183 of 2021 of

Ramachandrapuram Police Station, registered for the offences punishable

under Sections 406, 420 of I.P.C. and Sections 4, 5, 6 read with Section 3, 2

(c) of the Prize Chits and Money Circulation Schemes (Banning) Act,

1978, registered against the detenu for preventively detained him.

In State of Maharashtra and Ors. v. Bhaurao Punjabrao Gawande5

the Apex Court has held as follows:

"23....personal liberty is a precious right. So did the Founding Fathers believe because, while their first object was to give unto the people a Constitution whereby a government was established, their second object, equally important, was to protect the people against the government. That is why, while conferring extensive powers on the government like the power to declare an emergency, the power to suspend the enforcement of fundamental rights or the power to issue ordinances, they assured to the people a Bill of Rights by Part III of the Constitution, protecting against executive and legislative despotism those human rights which they regarded as fundamental. The imperative necessity to protect these rights is a lesson taught by all history and all human experience. Our Constitution-makers had lived through bitter years and seen an alien Government trample upon human rights which the country had fought hard to preserve. They believed like Jefferson that "an elective despotism was not the Government we fought for". And, therefore, while arming the

(2008) 3 SCC 613

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Government with large powers to prevent anarchy from within and conquest from without, they took care to ensure that those powers were not abused to mutilate the liberties of the people."

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

State of T.N.6 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."

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

Rekha Vs. State of Tamil Nadu7, 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."

As seen from the material placed on record, the crimes relied upon

by the detaining authority for preventively detaining the detenu relate to

cheating. Further, the detenu was arrested in connection with the said

crimes and subsequently, he moved bail petitions in the said crimes and

2007 (2) SCC 1

(2011) 5 SCC 244

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he was granted conditional bail by the Courts concerned. Under these

circumstances, the apprehension of the detaining authority that since the

detenu was released on bail, there is imminent possibility of his involving

in similar offences unless he is prevented from doing so by an appropriate

order of detention is highly misconceived. It is the bounden duty of the

Police to inform the learned Public Prosecutor about the conduct of the

detenu and to handover the entire case record available against the

detenu. The police are supposed to be vigilant in collecting the whole

data against the detenu and furnish the same to the Public

Prosecutor/Additional Public Prosecutor to defeat the bail application/s

of the detenu. Further, in the instant case, since the detenu was granted

bail by the Courts concerned, if it is found that the detenu is involved in

further crimes, the prosecution can apprise the same to the Courts

concerned and seek cancellation of bail. Moreover, criminal law was

already set into motion against the detenu. Since the detenu has allegedly

committed offences punishable under the Indian Penal 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 cheating. Even a plain

reading of the complaints in F.I.R.No.124 of 2021 of Gachibowli Police

Station and F.I.R.No.183 of 2021 of Ramachandrapuram Police Station,

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would show that the complainant therein had paid only an amount of

Rs.12,500/-, but the Investigating Agency has seized all the bank accounts

of the company. 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 Manipur8, 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 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

(2012) 2 SCC 176

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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.9 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 (8 supra) , recently, the Apex Court in Banka Sneha

Suseela v. State of Telangana and others10 held as under:-

"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

(2012) 2 SCC 386

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

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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."

That apart, in W.P.No.29261 of 2019, dated 23.04.2020 (Dr.Pawan

Malhan v. The State of Telangana), the allegation against the detenu that

he has been habitually and continuously engaging himself in a series of

illegal activities of cheating the innocent unemployed youth, college

students, retired employees and other general public by enrolling them as

members into a Multi Level Marketing company namely M/s.EBIZ.COM

PRIVATE LIMITED along with his associate Hitik Malhan, with gullible

words, in an organized manner, to make huge illegal and easy money,

creating large scale fear and panic among the general public by

committing such offences and thus he has been acting in a manner

prejudicial to the maintenance of public order apart from disturbing the

peace, tranquility and social harmony in the society. Though six crimes

were registered against the detenu, the Division Bench of this Court

allowed the Writ Petition by holding that "Grave as the offences may be,

they relate to cheating. 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 the instant case also the offences alleged against the detenu are

relating to cheating and only three crimes have been registered against

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the detenu, as such applying the aforesaid decision of the Division Bench

of this Court, this Writ Petition is also deserves to be allowed.

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

Court as well as this 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 P.D. Act No.41/PD-

CELL/CYB/2021, dated 24.04.2021, and the consequential confirmation

order of the 1st respondent approving the detention vide G.O.Rt.No.1016,

General Administration (SPL. (Law & Order) Department, dated

03.05.2021, are hereby set aside. The respondents are directed to set the

detenu, namely Abhilash Thomas, S/o. Thomas, 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 stand closed. There shall be no order as to costs.

__________________________ A. RAJASHEKER REDDY, J

______________ G. SRI DEVI, J

27.09.2021 Gsn/gkv