Harsh Kumar vs The State Of Telangana And Another
2022 Latest Caselaw 4216 Tel

       THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
                         AND
        THE HON'BLE SRI JUSTICE E.V.VENUGOPAL

              WRIT PETITION No.21958 OF 2022
ORDER:    (Per Hon'ble Dr. Justice Shameem Akther)


     Mr. Harsh Kumar, the petitioner, has filed this Habeas Corpus

petition on behalf of his brother, Naveen Bhutani, the detenu,

challenging the detention order vide No.22/PD-CELL/CYB/2022,

dated 31.03.2022, passed by the respondent No.2, whereby, the

detenu was detained under Section 3(2) of the Telangana Preventive

Detention Act, 1986 (Act 1 of 1986), and the consequential

confirmation order vide G.O.No.1289, General Administration (Spl.

(Law & Order)) Department, dated 23.06.2022, passed by the

Secretary to Government, General Administration (Spl. (Law &

Order)) Department, Government of Telangana.

2. We have heard the submissions of Smt. B.Mohana Reddy,

learned counsel for the petitioner, Sri S.Mujib Kumar, learned Special

Government Pleader representing the learned Additional Advocate

General for the respondents and perused the record.

3. The case of the petitioner is that basing on two (2) crimes,

viz., Crime Nos.551 of 2021 and 69 of 2022 of Cyber Crime (CYB)

Police Station, Cyberabad Commissionerate, the respondent No.2

passed the impugned detention order, dated 31.03.2022. According 2 Dr.SA,J & EVV,J W.P.No.21958 of 2022

to respondent No.2, the detenue is a 'Cyber Crime Offender'. He has

been indulging in cyber crimes by collecting card credentials from

international card holders under the guise of providing them

technical services and used their credentials in payment gateways

collected from his associates and got transferred huge money into

his accounts fraudulently and cheated various banks in India in an

organized fashion in the limits of Cyberabad Police Commissionerate.

His illegal/unlawful activities have been creating a feeling of

insecurity among various banks in India which are providing

payment gateways to its customers and posing great threat to public

money, thus adversely affecting the public order.

4. Learned counsel for the petitioner vehemently contended that

the impugned detention order is illegal, arbitrary, unconstitutional,

improper, against the principles of natural justice and has been

passed in a mechanical manner and without application of mind. The

detenu is falsely implicated in both the crimes relied by the detaining

authority. The alleged criminal activities of the detenu, in any event,

would not satisfy the word 'Cyber Crime Offender'. The detaining

authority has not applied its mind to the facts and circumstances of

the case, while passing the impugned detention order. The detenu

was granted conditional bail by the Courts concerned in both the

crimes relied by the detaining authority. But he was again sent to 3 Dr.SA,J & EVV,J W.P.No.21958 of 2022

jail by invoking the draconian preventive detention laws on the

apprehension that since the detenu has been granted conditional bail

by the Courts concerned and released from jail, there is imminent

possibility of his indulging in more similar offences of siphoning of

public money, which is prejudicial to the maintenance of public order,

unless he is prevented from doing so by an appropriate order of

detention, which is highly misplaced. The alleged crimes do not add

up 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 Indian Penal Code and Information Technology

Act, the detenu can certainly be tried and convicted under the Penal

Code and said special law. Thus, there was no need for the detaining

authority to invoke the draconian preventive detention law against

the detenu. Hence, the impugned orders tantamount to colourable

exercise of power. The subjective satisfaction recorded by the

detaining authority in detaining the detenu is tainted and illegal.

Preventive detention cannot be made a substitute to punitive

detention. The detaining authority has to be extremely careful while

passing the detention order, since the detention ipso facto adversely

affects the fundamental right of personal liberty enjoyed by the

people under Article 21 of the Constitution of India. Thus, the

impugned detention order is legally unsustainable and ultimately, 4 Dr.SA,J & EVV,J W.P.No.21958 of 2022

prayed to set aside the same and allow the writ petition as prayed

for.

5. Per contra, the learned Special Government Pleader appearing

for the respondents supported the impugned detention order and

submitted that the detenu is a 'Cyber Crime Offender'. His illegal

acts of siphoning public money in an organized way have terrorized

the business community, private entrepreneurs, multinational

companies, software employees, especially bankers, which provide

international payment gateways. The unlawful acts of the detenu

had severe ramifications on the society at large. A sense of fear

prevailed among various sectors including bankers, until the detenu

was caught and lodged in jail. Release of the detenu on bail again

triggered panic among them and a large section of general public

were under the grip of fear of losing their valuable money. Thus, the

apprehension of the detaining authority that since the detenu was

released on bail in both the crimes relied by the detaining authority,

there is imminent possibility of his indulging in more similar offences

is not misconceived. The detaining authority was legally justified in

passing the impugned detention order. The subjective satisfaction

reached by the detaining authority in preventively detaining the

detenu is not tainted or illegal. Further, the Advisory Board, upon

hearing the detenu and the concerned investigating officials and 5 Dr.SA,J & EVV,J W.P.No.21958 of 2022

upon considering the entire material placed before it, rendered its

opinion that there is sufficient cause for detention of the detenu.

Considering the opinion of the Advisory Board and the entire

material, the Government confirmed the impugned detention order,

vide order, dated 23.06.2022. All the mandatory provisions and the

safeguards envisaged under the law were strictly followed by the

detaining authority while passing the impugned detention order and

hence, the impugned detention order do not suffer from illegality or

impropriety and ultimately, prayed to dismiss the Writ Petition.

6. In view of the submissions made by both the sides, the point

that arises for determination in this Writ Petition is:

       "Whether     the   impugned       detention     order      vide
       No.22/PD-CELL/CYB/2022,             dated     31.03.2022,
       passed     by    the    respondent      No.2,      and      the
       consequential          confirmation         order          vide

G.O.No.1289, General Administration (Spl. (Law & Order)) Department, dated 23.06.2022, passed by the Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana, are liable to be set aside?"

POINT:

7. In catena of cases, the Hon'ble Supreme Court had clearly

opined that there is a vast difference between "law and order" and 6 Dr.SA,J & EVV,J W.P.No.21958 of 2022

"public order". The offences committed against a particular

individual fall within the ambit of "law and order" and when the

public at large is adversely affected by the criminal activities of a

person, such activities of that person are 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. Hence, according to the Hon'ble Apex Court, the

detaining authority should be wary of invoking the immense power

under the Act.

8. In Ram Manohar Lohia v. State of Bihar1, the Hon'ble

Supreme Court has, in fact, deprecated the invoking of the

preventive law in order to tackle a law and order problem. It was

observed that every breach of public peace and every violation of law

may create a 'law and order' problem, but does not necessarily

create a problem of 'public order'. The distinction has to be borne in

mind in view of what has been stated in the grounds of detention.

9. In Kanu Biswas v. State of West Bengal2, the Hon'ble Apex

Court, while discussing the meaning of word 'public order,' held that

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

AIR 1966 SC 740

(1972) 3 SCC 831 7 Dr.SA,J & EVV,J W.P.No.21958 of 2022

'public order', is a question of degree and extent of the reach of the

act upon the Society.

10. In a recent judgment in Banka Sneha Sheela Vs. State of

Telangana3, the Hon'ble Apex Court held as follows:

"12. While it cannot seriously be disputed that the Detenue may be a "white collar offender" as defined under Section 2(x) of the Telangana Prevention of Dangerous Activities Act, yet a Preventive Detention Order can only be passed if his activities adversely affect or are likely to adversely affect the maintenance of public order. Public order is defined in the Explanation to Section 2(a) of the Telangana Prevention of Dangerous Activities Act to be a harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave widespread danger to life or public health.

15. 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 Detenue which are punishable under the three sections of the Indian Penal Code 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 Detenue 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 Detenue, 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.

32. 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 Detenue, 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..."

(emphasis supplied)

(2021) 2 Supreme Court Cases 415 8 Dr.SA,J & EVV,J W.P.No.21958 of 2022

11. In another recent judgment in Mallada K Sri Ram Vs. State

of Telangana4, the Hon'ble Apex Court, while referring to its earlier

decisions in Banka Sneha Sheela's case (3 supra), Ram Manohar

Lohia's case (1 supra) and Sama Aruna Vs. State of Telangana5,

held as follows:

"15. A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the "maintenance of public order". In this case, the apprehension of a disturbance to public order owing to a crime that was reported over seven months prior to the detention order has no basis in fact. The apprehension of an adverse impact to public order is a mere surmise of the detaining authority, especially when there have been no reports of unrest since the detenue was released on bail on 8 January 2021 and detained with effect from 26 June 2021. The nature of the allegations against the detenue are grave. However, the personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding. The powers of preventive detention are exceptional and even draconian. Tracing their origin to the colonial era, they have been continued with strict constitutional safeguards against abuse. Article 22 of the Constitution was specifically inserted and extensively debated in the Constituent Assembly to ensure that the exceptional powers of preventive detention do not devolve into a draconian and arbitrary exercise of state authority. The case at hand is a clear example of non-application of mind to material circumstances having a bearing on the subjective satisfaction of the detaining authority. The two FIRs which were registered against the detenue are capable of being dealt by the ordinary course of criminal law."

(emphasis supplied)

12. Yet again, in another recent judgment in Shaik Nazneen Vs.

State of Telangana6, the Hon'ble Apex Court, while referring to

Banka Sneha Seela's case (3 supra) and Mallada K.Sriram's case

(4 supra), held as follows:

"In any case, the State is not without a remedy, as in case the detenu is much a menace to the society as is being alleged, then the prosecution should seek for the cancellation of his bail and/or move an appeal to the Higher Court. But definitely seeking

2022 SCC Online SC 424

(2018) 12 Supreme Court Cases 150

2022 LiveLaw (SC) 559 9 Dr.SA,J & EVV,J W.P.No.21958 of 2022

shelter under the preventive detention law is not the proper remedy under the facts and circumstances of the case."

13. In the present case, the detaining authority, basing on two (2)

crimes indicated above, has passed the impugned detention order,

dated 31.03.2022. We shall present them in a tabular form the date

of occurrence, the date of registration of FIR, the offence complained

of and its nature, such as bailable/non-bailable or cognizable/non-

cognizable.

                                  Date of
                     Date of
  Crime No.                     registration       Offences               Nature
                   Occurrence
                                   of FIR
                                                                     Section 420 of IPC:
                                                                         Cognizable/
 551 of 2021 of
                                               Section 420 of IPC       Non Bailable
Cybercrime (CYB)   18.12.2021   27.12.2021
                                                & 66-C of IT Act       Section 66-C of
  Police Station                                                     IT Act: Cognizable/
                                                                           Bailable
                                                                     Section 420 of IPC:
                                                                         Cognizable/
   69/2022 of
                                               Section 420 of IPC       Non Bailable
Cybercrime (CYB)   28.01.2022   28.01.2022
                                                & 66-C of IT Act       Section 66-C of
  Police Station                                                     IT Act: Cognizable/
                                                                           Bailable

14. The facts and circumstances of the instant case are somewhat

peculiar. After registration of Crime No.551 of 2021 on 27.12.2021,

the Inspector of Police, Cyber Crime PS, Cyberabad, issued a notice

under Section 41A of Cr.P.C. to the detenu on 06.01.2022, directing

him to appear before him on 12.01.2022 in relation to the said crime.

On 12.01.2022, the detenu appeared before the said Inspector of

Police and on the same day, he was arrested and remanded to judicial

custody. Thereafter, while the detenu filed a bail petition before the

Court concerned seeking bail, the Inspector of Police filed a petition 10 Dr.SA,J & EVV,J W.P.No.21958 of 2022

before the Court concerned seeking police custody of the detenu for a

period of nine days. The Court concerned, by separate orders, dated

19.01.2022, while dismissing the bail petition of the detenu, granted

police custody of the detenu for four days from 21.01.2022 to

24.01.2022. Thereafter, the detenu moved a second bail petition on

24.01.2022 and the Court concerned, vide order, dated 31.01.2022,

granted conditional bail to the detenu, directing him to appear before

the SHO, Cyber Crimes PS, on every second Saturday between 11:30

AM and 03:00 PM for a period of six months or till filing of the charge

sheet, whichever is earlier. Accordingly, the detenu was released

from jail on bail on 01.02.2022. However, on the same day, i.e., on

01.02.2022, the detenu was served with another notice under Section

41A of Cr.P.C., in connection with second crime, i.e., Crime No.69 of

2022, which was registered against the detenu on 28.01.2022 while

he was in judicial custody in connection with first crime, i.e., Crime

No.551 of 2021, directing him to appear before the SHO concerned

on or before 03.02.2022. However, without waiting till 03.02.2022

stipulated in said notice under Section 41A Cr.P.C., the detenu was

arrested on the same day, i.e., on 01.02.2022 at 23:30 hours and

remanded to judicial custody. On the next day, i.e., on 02.02.2022,

the detenu moved a bail petition before the Court concerned and the

Court concerned, vide order, dated 02.02.2022, set the detenu at

liberty with a condition to appear before the SHO, Cyber Crime PS on 11 Dr.SA,J & EVV,J W.P.No.21958 of 2022

every second Saturday of the month between 11:30 AM and 05:00

PM for a period of three months or till filing of charge sheet,

whichever is earlier, observing as follows:

"Admittedly, as directed by the Hon'ble Apex Court in Arnesh Kumar's case the notice must be issued to the accused u/sec 41A Crpc. On perusal of the notice this Court found that this was served on the accused on 01.02.2022 with a direction to the accused to appear before the Investigation officer on or before 03.02.2022. The said notice was served on the accused outside the premises of District Jail, Kandi, around 6.00 PM. The contention of the prosecution is that the accused in compliesof the said notice appeared before the investigation officer on the same day within 2 hrs from their releasing from jail which is at a distance of 40 km from the police station, therefore, the contention of the learned APP is found doubtful."

Accordingly, the detenu was released from prison on 02.02.2022.

Thereafter, the detenu was again lodged in prison by virtue of the

impugned detention order, dated 31.03.2022, on the apprehension

since the detenu was granted conditional bail and released from jail,

there is imminent possibility of his indulging in more similar offences

of siphoning of public money, which is prejudicial to the maintenance

of public order, unless he is prevented from doing so by an

appropriate order of detention, which is highly misplaced. If the

State is aggrieved by granting of bail to the detenu, 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. Mere obtaining of bail orders cannot be a

substantial ground for invoking draconian preventive detention law

against a person. Further, a mere apprehension of 'breach of law and 12 Dr.SA,J & EVV,J W.P.No.21958 of 2022

order' is not sufficient to meet the standard of adversely affecting the

'maintenance of public order'. In the instant case, if it is

apprehended that the detenu, since set free, will continue to indulge

in more similar offences, that 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 the preventive

detention statute. Moreover, criminal law was already set into motion

against the detenu. Since the detenu has allegedly committed

offences punishable under the Indian Penal Code and Information

Technology Act, the said crimes can be effectively dealt with under

the provisions of the Penal Code and said Special law and there was

no need for the detaining authority to invoke draconian preventive

detention laws. The subject cases do not fall within the ambit of the

words "public order" or "disturbance of public order". Instead, they

fall within the scope of the words "law and order". Hence, there was

no need for the detaining authority to pass the impugned detention

order. Further, learned counsel for the petitioner would contend that

though there are other accused in the two crimes relied by the

detaining authority (A2 to A7 in Crime No.551/2021 and A2 to A6 in

Crime No.69/2022), the detenu alone (A1 in both the crimes) was

ordered to be detained under the draconian preventive detention

laws. The said submission is not disputed by the learned Special

Government Pleader. Moreover, nothing is placed on record to 13 Dr.SA,J & EVV,J W.P.No.21958 of 2022

substantiate that from the date of release on bail in the second crime

(02.02.2022) till the date of passing of the impugned detention order

(31.03.2022), the detenu was involved in commission of similar

offence/s. Under these circumstances, the subjective satisfaction

recorded by the detaining authority in detaining the detenu can be

said to be tainted with malice. The act of the detaining authority in

passing the impugned detention order is nothing but colourful

exercise of power, only to ensure that the detenu, by hook or crook,

is lodged in prison. The personal liberty of an accused cannot be

sacrificed on the altar of preventive detention, merely because a

person is implicated in a criminal proceeding. Article 22 of the

Constitution was specifically inserted and extensively debated in the

Constituent Assembly to ensure that the exceptional powers of

preventive detention do not devolve into a draconian and arbitrary

exercise of state authority. The detaining authority has to be

extremely careful while passing the detention order, since the

detention ipso facto adversely affects the fundamental right of

personal liberty enjoyed by the detenu under Article 21 of the

Constitution of India. The detaining authority cannot be permitted to

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

resort to preventive detention. In view of the facts and

circumstances of the case, it is not a fit case to apply the preventive 14 Dr.SA,J & EVV,J W.P.No.21958 of 2022

detention laws and detain the detenu, curtailing the liberty

guaranteed under Article 21 of the Constitution of India.

15. For the foregoing reasons, the impugned orders are legally

unsustainable and are liable to be set aside.

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

detention order vide No.22/PD-CELL/CYB/2022, dated 31.03.2022,

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

order vide G.O.No.1289, General Administration (Spl. (Law & Order))

Department, dated 23.06.2022, passed by the Secretary to

Government, General Administration (Spl. (Law & Order))

Department, Government of Telangana, are hereby set aside. The

respondents are directed to set the detenu, namely Mr. Naveen

Bhutani, S/o.B.K.Bhutani, at liberty forthwith, if he is no longer

required in any other criminal case.

Miscellaneous Petitions, if any, pending in this Writ Petition

shall stand closed. There shall be no order as to costs.

____________________ Dr. SHAMEEM AKTHER, J

________________ E.V. VENUGOPAL , J 23rd August, 2022 Bvv