Telangana High Court
Mallada K. Sri Ram vs The State Of Telangana on 25 January, 2022
Bench: Shameem Akther, N.Tukaramji
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE N.TUKARAMJI
WRIT PETITION No.17120 of 2021
ORDER: (Per the Hon'ble Dr. Justice Shameem Akther)
Mr. Mallada Sri Ram, the petitioner, filed this Habeas Corpus
petition on behalf of his brother, Mallada Gangadhar, S/o. late
Sathyam, aged 43 years, the detenu, challenging the detention
order, vide SB(I) No.102/PD-1/HYD/2021, dated 19.05.2021,
passed by the Commissioner of Police, Hyderabad City, the
respondent No.2, whereby, 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 &
White Collar or Financial Offenders Act, 1986 (for short "PD Act"),
and the consequential confirmation order vide G.O.Rt.No.1917,
General Administration (Spl. (Law & Order)) Department, dated
24.08.2021, passed by respondent No.1.
2. We have heard the submissions of Sri Seshagiri Rao
Yalamanchili, learned counsel for the petitioner, Sri A. Manoj
Kumar, learned Assistant Government Pleader for Home appearing
on behalf of Advocate General for the respondents and perused the
record.
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W.P.No.17120 of 2021
3. The learned counsel for the petitioner has 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. Both the cases relied upon by the detaining
authority for preventively detaining the detenu have been foisted
against the detenu. Already criminal law was set into motion
against the detenu. Further, the alleged criminal activities of the
detenu, in any event, would not satisfy the word 'white collar
offender'. In both the cases relied by the detaining authority for
preventively detaining the detenu, the detenu was granted
conditional bail by the Courts concerned and after release on bail,
the detenu neither violated the bail conditions nor involved in any
other crime(s). Hence, there was no need to invoke the draconian
preventive detention laws against the detenu, since the detenu
would be well within the surveillance of police. In case the detenu
had violated the bail conditions, the sponsoring authority could
have taken steps for cancellation of bail. Instead, the sponsoring
authority gave a requisition to the detaining authority for passing
the detention order. The detaining authority has not applied its
mind to the facts and circumstances of the case, while passing the
impugned detention order. Further, the subjective satisfaction
recorded by the detaining authority for preventively detaining the
detenu is vague and not based on any material. The detaining
authority did not assign any reason for coming to a conclusion that
the activities of the detenu are disturbing peace and tranquility in
society and affecting the public order. Further, the cases alleged
against the detenu do not add up to "disturbing the public order".
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They are confined within the ambit and scope of the word "law and
order". Since the detenu is alleged to be a 'White Collar Offender',
the detenu can certainly be tried and convicted under the Penal
Code. Thus, there was no need for the detaining authority to
invoke the draconian preventive detention laws. Hence, the
impugned detention order tantamounts to colourable exercise of
power. Preventive detention of a person is an exceptional power,
which can only be used in exceptional circumstances. 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 detention order is
legally unsustainable and ultimately, prayed to set aside the same
and allow the writ petition as prayed for. In support of his
contentions, the learned counsel had placed reliance on a judgment
of the Hon'ble Apex Court in Banka Sneha Sheela Vs. State of
Telangana1
4. On the other hand, the learned Assistant Government
Pleader for Home would contend that the detenu is a 'White Collar
Offender'. He has repeatedly indulged in committing offences of
cheating the unemployed job aspirants/youth promising
employment in private sectors by creating fake documents in the
limits of Hyderabad Police Commissionerate and thus causing large
scale fear and panic among the general public and thus disturbing
peace and tranquility in society and acted in a manner, which is
prejudicial to the maintenance of public order. The detenu had
cheated as many as 450 gullible job aspirants under the guise of
2021 SCC Online SC 530
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providing jobs and collected a huge amount of Rs.85 lakhs from
them. The unlawful activities of the detenu were causing
widespread danger to the gullible public and were detrimental to
the public order. The crimes allegedly committed by the detenu
were sufficient to affect the even tempo of the society and create a
feeling of insecurity in the minds of the public in general and
unemployed youth in particular. The impugned detention order
was passed basing on valid grounds and material placed before the
respondents. All the mandatory provisions and the safeguards
envisaged under the Constitution of India were strictly followed
while passing the impugned detention order and hence, the
impugned detention order does not suffer from illegality or
impropriety. In both the cases relied by the detaining authority for
detaining the detenu, the detenu got bail from the Courts
concerned. Hence, with a view to prevent the detenu from further
indulging in such unlawful activities in the interest of the society,
the impugned detention order was passed. Preventive detention is
different from punitive detention. Preventive detention is a
precautionary measure basing on reasonable anticipation and it
does not overlap with the prosecution. Further, the Advisory
Board, in its review meeting held on 05.08.2021, upon hearing the
detenu and the concerned investigating officials and upon
considering the entire material placed before it, rendered its
opinion that there is sufficient cause for detention of the detenu.
On considering the opinion of the Advisory Board and upon
considering the entire material, the Government confirmed the
impugned detention order, vide G.O.Rt.No.1917, General
Administration (Spl. (Law & Order)) Department, dated
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W.P.No.17120 of 2021
24.08.2021. Therefore, the detaining authority was legally
justified in passing the impugned detention order and ultimately,
prayed to dismiss the writ petition.
5. In view of the submissions made by both sides, the point
that arises for determination in this Writ Petition is:
"Whether the impugned detention order, dated
19.05.2021, passed by the Commissioner of
Police, Hyderabad City, respondent No.2, and the
consequential confirmation order, dated
24.08.2021, passed by the Principal Secretary to
Government, General Administration (Spl. (Law &
Order)) Department, Government of Telangana,
respondent No.1, are liable to be set aside?"
POINT:
6. Briefly, the facts of the case are that by relying on two
criminal cases registered against the detenu in Crime
Nos.675/2020 of Banjara Hills Police Station and 343/2020 of
Chatrinaka Police Station, within the limits of Hyderabad Police
Commissionerate, the respondent No.2-Commissioner of Police,
Hyderabad City, passed the impugned detention order, dated
19.05.2021. According to the respondent No.2, the detenu is a
'White Collar Offender' and he has been habitually and
continuously engaging himself in series of unlawful activities by
committing criminal breach of trust, cheating, forgery for the
purpose of cheating and cheating the innocent job aspirants, by
collecting huge money from them under the guise of providing
employment and thereby creating large scale fear and insecurity
among the gullible public, which are prejudicial to the maintenance
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of public order. In both the cases relied by the detaining authority
for preventively detaining the detenu, the detenu got bail from the
Court concerned. In order to prevent the detenu from indulging in
similar illegal activities, which are detrimental to the public order,
the impugned detention order, dated 19.05.2021, was passed,
which was confirmed by the Government by order, dated
24.08.2021.
7. The material placed on record reveals that the detenu-
Mallada Gangadhar, S/o. late Sathyam, aged about 43 years, is
alleged to be a 'White Collar Offender'. He cheated as many as
450 innocent job aspirants by collecting a huge amount of Rs.85
lakhs from them under the guise of providing employment in
private sectors by creating fake documents, in an organized
manner. The detaining authority relied on two cases for
preventively detaining the detenu. We shall present them in a
tabular column, the date of occurrence, the date of registration of
FIR, the offences complained of and its nature, such as
bailable/non-bailable or cognizable/non-cognizable.
Date of
Date of
Crime No. Occurrence registration Offences Nature
of FIR
Sections 408,
420 & 468:
Cognizable/
Sections 408, Non Bailable,
675/2020 of
Prior to 420, 468, 471, Section 471:
Banjara Hills 15.10.2020
15.10.2020 506 r/w 120B of Cognizable/
Police Station Bailable
IPC
Section 506 :
Non-cognizable/
Bailable
Sections 408,
343/2020 of Sections 408,
Prior to 420 & 468:
Chatrinaka Police 17.12.2020 420, 468, 120B
17.12.2020 Cognizable/
Station of IPC Non Bailable
8. The material placed on record reveals that in the first crime,
i.e., Crime No.675/2020, the allegations against the detenu are
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that while the detenu was working as Operational Manager in Ixora
Corporate Services Private Limited (ICS), Panjagutta, Hyderabad,
he hatched a plan to collect huge amounts from the gullible job
aspirants searching for jobs in private sectors, promising
employment in ICS by creating fake documents. He informed the
same to his associate K.Mahender, HR Manager in ICS, who had
the authority to open bank accounts and issue identity cards to the
newly appointed employees in the company. Accordingly, both of
them misrepresented the employees of ICS that the company
needs more manpower and asked them to bring job aspirants to
work in ICS on contract basis. Trusting them, some of the
employees of ICS brought their known persons and introduced
them to the detenu and his associate. Thereafter, the detenu and
his associate created fake identity cards and issued the same to as
many as 450 gullible unemployed youth by collecting a huge
amount of Rs.85 lakhs from them, through cash, Google Pay and
account transfers on the pretext of opening bank accounts and
purchasing uniforms. In order to build confidence, the associate of
detenu opened bank accounts of 450 unemployed youth in Federal
Bank, Panjagutta. Further, the detenu and his associate created
fake letter in the name of Special Commissioner (Sanitation),
GHMC, as if a sanitation project was sanctioned to ICS and also
created a fake agreement between GHMC and ICS on a non-judicial
stamp paper worth Rs.100/-. Having realized the fraudulent
activities of the detenu and his associate, when the victims and ICS
started pressurizing the detenu and his associate to return the
money collected from them, the detenu threatened the victims with
dire consequences and escaped.
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In the second crime, i.e., Crime No.343/2020, the allegations
against the detenu are that he hatched a plan to collect huge
amount from the gullible unemployed youth. Accordingly, the
detenu approached the complainant and introduced himself as
Operational Manager in ICS. The detenu misrepresented that ICS
got a contract from GHMC and is in need of more employees to
work in ICS for GHMC project. The detenu further stated that if
anyone is interested to work in ICS, he has to pay money for
providing identity card, opening bank account and providing
uniform. Trusting him, the complainant agreed to pay money and
also informed to some of his known persons about the same.
Accordingly, the detenu collected an amount of Rs.15,000/- each,
totalling to Rs.7,65,000/- on the pretext of opening bank accounts
and purchasing uniforms. In order to gain confidence, the detenu
opened bank accounts in the name of victims for drawing monthly
salary and issued fake identity cards and uniforms. Further, as per
the instructions of the detenu, the victims attended sweeping work
for few days in the limits of GHMC. When the complainant and the
other victims asked for their monthly salary, the detenu dodged
the manner and later absconded.
The detenu and his associate were arrested on 17.12.2020 in
connection with Crime No.675/2020 and their confessional
statements were recorded. The arrest of the detenu in Crime
No.343/2020 was regularized on PT warrant. Subsequently, the
detenu moved bail petitions in both the cases and the Courts
concerned granted conditional bail to him in both cases and he was
released on bail on 11.01.2021.
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9. The method of minting money by exploiting the unemployed
youth has been increasing day by day. Without knowing the
hidden agenda, the unemployed youth are falling prey to gullible
words of few persons and loosing huge amounts. If such
unemployed youth are cheated by the persons like the detenu,
their entire future will be in peril, besides the family parts with
hard earned money, which is required to be utilized for the family
welfare or to establish self-employment units. The white-collar
crimes have drastic effects on public at large and unemployed
youth in particular, so the same shall be dealt with iron hand and
severe punishment should be awarded to the culprits, on being
found guilty. In State of Gujarat Vs. Mohanlal Jitamalji
Porwal2, a Division Bench of Hon'ble Supreme Court of India,
speaking through M.P.Thakkar, J (as His Lordship then was)
observed as under:-
"The entire community is aggrieved, if the economic offenders,
who ruin the economy of the State, are not brought to book. A murder
may be committed in the heat of moment upon passions being aroused.
An economic offence is committed with cool calculation and deliberate
design, with an eye on personal profit, regardless of the consequence to
the community. A disregard for the interest of the community can be
manifested only at the cost of forfeiting the trust and faith of the
community in the system to administer justice in an even-handed
manner without fear of criticism from the quarters, which view white-
collar crimes with a permissive eye, unmindful of the damage done to the
national economy and national interest."
10. In the instant case, the detenu amassed huge amount of
Rs.85 lakhs by cheating more than 450 unemployed under the
guise of providing jobs in private companies, and the victims were
not provided employment. In that process, the detenu created
fake documents, fake identity cards and opened bank accounts on
the pretext of crediting the salary of the victims and made the
(1987) 2 SCC 364
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victims purchase uniforms. The detenu also went to the extent of
creating a fake letter in the name of Special Commissioner
(Sanitation), GHMC, as if a sanitation project was sanctioned to
ICS and also created a fake agreement between GHMC and ICS on
a non-judicial stamp paper worth Rs.100/-. Believing the gullible
words of the detenu, more than 450 innocent unemployed youth
paid huge amounts to the detenu. If such habitual offender is
allowed to move freely, there is likelihood of cheating more number
of unemployed youth. Under these circumstances, the contention
of the respondents that the illegal activities of the detenu would
disturb the even tempo of life of the community which makes it
prejudicial to the maintenance of the public order and there is
imminent possibility of the detenu again indulging in similar
prejudicial activities, cannot be brushed aside.
11. It is apt to state that preventive detention is different from
punitive detention. While punitive detention could be enforced
under ordinary criminal law, the law of preventive detention can be
enforced against habitual offenders to prevent them from
committing the future similar offences, which are detrimental to
the public interest, disturbing the even tempo of life and causing
damage to public health. The legal parameters for testing the
validity of 'preventive detention' fundamentally vary from that of
'punitive detention'. Also, 'Public order' is distinct from 'law and
order'. While individual offences without affecting public at large
could be considered as violating 'law and order', the offences that
affect larger public and disturbs the even tempo of public life fall
under the category of disturbance to public order and only in the
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latter category of cases, the law of preventive detention shall be
enforced.
12. In the case of Madhu Limaye Vs. Sub-Divisional
Magistrate3. The Hon'ble Apex Court held as follows:
"The acts which disturb public tranquility or are breaches
of the peace should not be given a narrow meaning, but
should be given a liberal interpretation. For the expression
'in the interest of public order' is very wide amplitude."
13. In the case of Commissioner of Police & Others Vs.
C.Anita (Smt.)4, the Hon'ble Apex Court examined the issue of
"public order" and "law and order" and observed as follows:
"The crucial issue is whether the activities of the detenu
were prejudicial to public order. While the expression "law
and order" is wider in scope inasmuch as contravention of
law always affects order, "public order" has a narrower
ambit, and public order could be affected by only such
contravention which affects the community or the public
at large. Public order is the even tempo of life of the
community taking the country as a whole or even a
specified locality. The distinction between the areas of
"law and order" and "public order" is one of the degree
and extent of the reach of the act in question on society.
It is the potentiality of the act to disturb the even tempo
of life of the community which makes it prejudicial to the
maintenance of the public order. If a contravention in its
effect is confined only to a few individuals directly
involved as distinct from a wide spectrum of the public, it
could raise problem of law and order only. It is the length,
magnitude and intensity of the terror wave unleashed by a
particular eruption of disorder that helps to distinguish it
as an act affecting "public order" from that concerning
"law and order". The question to ask is: "Does it lead to
disturbance of the current life of the community so as to
amount to a disturbance of the public order or does it
affect merely an individual leaving the tranquility of the
society undisturbed?" This question has to be faced in
every case on its facts."
14. In the case of R. Kalavathi v. State of Tamil Nadu5, the
Hon'ble Apex Court, while dealing with the case affecting the public
order, observed that even a single act which has the propensity of
(1970) 3 SCC 746
(2004) 7 SCC 467
(2006) 6 SCC 14
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W.P.No.17120 of 2021
affecting the even tempo of life and public tranquility would be
sufficient for detention.
15. The decision of the Hon'ble Apex Court in Banka Sneha
Sheela's case supra relied by the learned counsel for the petitioner
is distinguishable on facts from the instant case. In the said
decision, the number of victims duped/cheated and the amount
collected from them is much lower than the victims involved and
the amount collected by the detenu in the instant case. The modus
operandi adopted by the detenu in the instant case is also quite
different to the modus operandi of the detenu in the
aforementioned case. In the instant case, the detenu amassed a
huge amount of Rs.85 lakhs by cheating more than 450
unemployed under the guise of providing jobs in private
companies. In that process, the detenu created fake documents,
fake identity cards and opened bank accounts on the pretext of
crediting the salary of the victims and made the victims purchase
uniforms. The detenu also went to the extent of creating a fake
letter in the name of Special Commissioner (Sanitation), GHMC, as
if a sanitation project was sanctioned to ICS and also created a
fake agreement between GHMC and ICS on a non-judicial stamp
paper worth Rs.100/-. Believing the gullible words of the detenu,
as many as 450 innocent unemployed youth paid amounts to the
detenu. The ramifications of illegal activities of the detenu and its
effect on the society at large and unemployed youth in particular,
is much wider than that of the illegal activities of the detenu in
Banka Shena Sheela's case supra. Both the crimes relied by the
detaining authority in the instant case duly reflect the propensity of
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the detenu to commit offences with cool calculation and deliberate
design to dupe/cheat the gullible youth taking advantage of their
unemployment; and for a person of such a conduct staying in the
community is desperate and dangerous to the people at large and
unemployed youth in particular.
16. As per the clause (x) of Section 2 of the P.D.Act, a "White
Collar Offender" "White collar offender" or "Financial Offender"
means a person who commits or abets the commission of offences
punishable under the Telangana Protection of Depositors of
Financial Establishment Act, 1999 or under sections 406 to 409 or
417 to 420 or under Chapter XVIII of the Indian Penal Code, 1860.
17. In Subramanian Vs. State of Tamilnadu6, the Hon'ble
Apex Court held as follows:
"It it well settled law that the Court does not interfere with the
subjective satisfaction reached by the detaining authority except in
exceptional and extremely limited grounds. The court cannot
substitute its own opinion for that of the detaining authority when
the grounds of detention are precise, pertinent, proximate and
relevant, that sufficiency of grounds is not for the court, but for the
detaining authority for the formation of subjective satisfaction that
the detention of a person with a view to preventing him from
acting in any manner prejudicial to public order is required and that
such satisfaction is subjective and not objective. The object of
the law of preventive detention is not punitive but only preventive
and further that the action of the executive in detaining a person
being only precautionary, normally, the matter has necessarily to
be left to the discretion of the executive authority. It is not
practicable to lay down objective rules of conduct in an exhaustive
manner. The satisfaction of the detaining authority, therefore, is
considered to be of primary importance with certain latitude in the
exercise of its discretion."
18. It is pertinent to state that the personal liberty of an
individual, which the law preserves and protects, can also be taken
away by following the procedure established by law, when it is
used to jeopardize the public good and not merely private
interests. An order of detention is not a curative or reformative or
(2012) 4 Supreme Court Cases 699
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punitive action, but a preventive action, the avowed object of
which is to prevent the anti-social and subversive elements from
imperiling the welfare of the people or the security of the nation or
from disturbing the public tranquility or from indulging in white
collar offences. In the instant case, the commission of alleged
offences by the detenu as indicated in the above table clearly
demonstrates that the detenu, under the pretext of providing jobs
to the gullible unemployed youth, collected huge amounts from
them in an organized fashion, played fraud on them and when they
asked him to repay the money, threatened them with dire
consequences and escaped. The modus operandi of the detenu in
the alleged offences would certainly disturb the public peace and
tranquility. So it is imperative upon the officers concerned to pass
the order of detention, since the acts of the detenu are prejudicial
to the maintenance of public order. The illegal activities of the
detenu were of such a reach and extent, that they would certainly
affect the even tempo of life and were prejudicial to the public
order. The detaining authority had sufficient material to record
subjective satisfaction that the detention of the detenu was
necessary to maintain public order and even tempo of life of the
community. The order of detention does not suffer from any
illegality. The grounds of detention, as indicated in the impugned
order, are found to be relevant and in tune with the provisions of
the PD Act. Since the detenu got bail in both the crimes relied by
the detaining authority, there is nothing wrong on the part of the
detaining authority in raising an apprehension that there is every
possibility of the detenu committing similar offences, which would
again certainly affect the public order. The material placed on
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record reveals that the detenu was supplied with the documents
relied upon by the detaining authority in the language known to
him, i.e., English. The material relied on and circumstances show
that the subjective satisfaction of the detaining authority is not
tainted or illegal on any account. The facts and circumstances
indicate that the acts of the detenu cannot be effectively dealt with
under ordinary criminal law. Under these circumstances, the
detaining authority is justified in passing the impugned detention
order. We do not see any merit in this Writ Petition and as such, it
is liable to be dismissed.
19. The Writ Petition is, accordingly, dismissed. There shall be
no order as to costs.
The miscellaneous petitions pending, if any, in this Writ
Petition, shall stand closed.
____________________
Dr. SHAMEEM AKTHER, J
____________________
N.TUKARAMJI, J
25th January, 2022
Bvv
