Telangana High Court
Dheeru Singh vs The State Of Telangana on 21 March, 2022
Bench: P Naveen Rao, G.Radha Rani
IN THE HIGH COURT OF JUDICATURE FOR THE STATE OF TELANGANA
********
WRIT PETITION No.35503 of 2021
Between:
Dheeru Singh, s/o Ganesh Singh
Aged 60 years, Occ: Business,
r/o 14-1-557/2, Manghanhat,
Hyderabad.
.... Petitioner
AND
1. The State of Telangana,
Rep. by its Principal Secretary,
General Administration (Spl.Law & Order) Department,
Secretariat Buildings,
Hyderabad and 7 others.
.... Respondents
DATE OF JUDGMENT PRONOUNCED : 21.03.2022
HON'BLE SRI JUSTICE P.NAVEEN RAO
&
HON'BLE DR JUSTICE G.RADHA RANI
1. Whether Reporters of Local Newspapers : No
may be allowed to see the Judgments ?
2. Whether the copies of judgment may be : Yes
marked to Law Reporters/Journals
3. Whether Their Lordship wish to : No
see the fair copy of the Judgment ?
PNR,J & Dr.GRR,J
WP No.35503 of 2021
* HON'BLE SRI JUSTICE P.NAVEEN RAO
&
HON'BLE DR JUSTICE G.RADHA RANI
+ WRIT PETITION NO.35503 OF 2021
% 21.03.2022
# Dheeru Singh, s/o Ganesh Singh
Aged 60 years, Occ: Business,
r/o 14-1-557/2, Manghanhat,
Hyderabad.
.... Petitioner
Vs.
$ The State of Telangana,
rep. by its Principal Secretary,
General Administration (Spl.Law & Order) Department,
Secretariat Buildings,
Hyderabad and 7 others
.... Respondents
!Counsel for the petitioner : Sri P.Vishnuvardhana Reddy
Counsel for the Respondents : Government Pleader for Home
<Gist :
>Head Note:
? Cases referred:
(2020) 13 SCC 632; W.P.No.29162 of 2021 dated 23.02.2022; (2017) 14 SCC 577; AIR 1986 SC 740; 1969(1) SCC 10;
1970(1) SCC 98; (1995) 3 SCC 237; (2004) 8 SCC 591; 1970 (3) SCC 746; 2017(2) ALD (Crl.) 760; (2008) 9 SCC 89;
1969 (1) SCC 273; 1970(1) SCC 149; (1975) 1 SCC 415; 1970 (1) SCC 219; (2011) 10 SCC 781; (1991) 1 SCC 476;
(2013) 4 SCC 435; (2015) 16 SCC 177; (1980) 2 SCC 338; (2012) 2 SCC 386; AIR 1975 SC 134; AIR 1953 SC 318;
(2011) 5 SCC 244; (1973) 4 SCC 43; (1987) 4 SCC 302; 1998(3) ALD 86 (DB); Crl.Bail Appln.No.102 of 2020 dt.5.5.2021;
W.P.No.1706 of 2021 dt 13.12.2021; (1981) 4 SCC 647; (1988) 1 SCC 296; (1974) 4 SCC 530; (2018) 12 SCC 150;
(1995) 3 SCC 198; (2003) 8 SCC 342; WP 502 of 2020 dt 5.3.2020; WP 1826 of 2021 dt 10.8.2021; W.P.No.102 of 2021
dt 22.4.2021; and W.P.No.19054 of 2020, dt 15.3.2021
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WP No.35503 of 2021
HONOURABLE SRI JUSTICE P.NAVEEN RAO
AND
HONOURABLE DR. JUSTICE G.RADHA RANI
WRIT PETITION No.35503 of 2021
ORDER: (per Hon'ble Sri Justice P.Naveen Rao)
This writ petition is filed by brother-in-law of the detenue-Smt.
Kalapathi Nithu Bai challenging the order of detention
dated 01.10.2021, passed by respondent No.2/Collector & District
Magistrate.
2. Heard Sri P.Vishnuvardhana Reddy, learned counsel for the
petitioner, and learned Government Pleader for Home appearing for the
respondents.
3. The detention order was passed as a result of registration of three
crimes against the detenue.
"First crime viz., Crime No.6 of 2021 was registered on
10.03.2021 on the file of the Prohibition & Excise Station,
Serilingampally, Rangareddy District, alleging recovery of 690 grams of
Ganja from the house of the detenue. The detenue was arrayed as
accused No.3 therein.
Second crime viz., Crime No.24 of 2021 was registered
on 01.09.2021 on the file of the Prohibition & Excise Station,
Serilingampally, Rangareddy District, alleging that 1.67 kgs of dry
ganja was recovered from the residence of the detenue. The detenue
was arrayed as accused No.3 therein.
Third crime viz., Crime No.26 of 2021 was registered on
06.09.2021 on the file of the Prohibition & Excise Station,
Serilingampally, Ranga Reddy District, alleging recovery of 580 grams
of dry ganja from the house of the detenue. The detenue was arrayed
as accused No.1 therein. "
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WP No.35503 of 2021
4. In connection with the above three crimes, the detenue was
arrested on 06.09.2021. The detaining authority observed that even
though several applications filed to grant bail were dismissed, there is
every likelihood of detenue moving fresh bail applications securing bail.
It is further observed that in the event of securing bail, it is possible
that the detenue would resort to unlawful activities of peddling of ganja,
its ill effects on public health, particularly, the youth and its impact on
the society. Therefore, respondent No.2 opined that it desirable to
preventively detain the detenue.
4.1. According to leaned counsel for petitioner, the order of detention
is ex facie illegal as no ganja was recovered from the possession of the
detenue and that the detenue was not even present, when the alleged
ganja was recovered from a house.
4.2. He would submit that the alleged recovery of Ganja from the
house numbers mentioned in the impugned order of detention is in
smaller quantities in separate instances, which cannot be termed as
commercial quantity and therefore, the alleged offence being a bailable
offence, the detention order was illegal.
4.3. He would further contend that it is illegal to refer to involvement
of the detenue in crimes registered against her between the years 2017
to 2020. As held by the Hon'ble Supreme Court in Khaja Bilal Ahmed v.
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WP No.35503 of 2021
State of Telangana and others1, it is not permissible to refer to previous
history of crime and the order of detention can be resorted to only on
crimes registered proximate to the decision to detain. Even reference to
the involvement in crimes itself would vitiate the order of detention as
held by the Hon'ble Supreme Court. He would submit that this very
issue was considered by this Court in a recent decision in Kaushal v.
State of Telangana2.
4.4. Learned counsel further submitted that the subject crimes were
registered suo motu by the excise police and the detenue was implicated
based on a confessional statement by the accused. Confession made
before the Police is not admissible in law and therefore, based on such
confession, registering crimes against the detenue itself being illegal, the
detention order is not valid.
4.5. He would submit that as on the date of detention order, all the
bail applications were dismissed and no bail application was pending
and therefore, resorting to preventive detention, when no bail
application was pending, amounts to illegal exercise of power and
authority as held by the Hon'ble Supreme Court in V.Shantha v. State of
Telangana3.
4.6. Learned counsel would further submitted that though bail was
granted on 20.10.2021 she is not released from custody due to the
(2020) 13 Supreme Court Cases 632
W.P.No.29162 of 2021 dated 23.02.2022
(2017) 14 SCC 577
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WP No.35503 of 2021
detention order. While granting bail also, stringent conditions were
imposed and therefore, the prosecution has enough safeguards. Even
assuming that the bail was erroneously granted, nothing prevents the
prosecution from filing application to cancel the bail. Thus, at any rate,
there is no justification in detaining the detenue on offences, which are
not punishable with sentence of more than seven years.
4.7. According to learned counsel for the petitioner, Narcotic Drugs
and Psychotropic Substances Act, 1985 (for short 'the NDPS Act') is a
self-contained code, that prescribes special procedure and provides the
mechanism to prosecute persons alleged to have committed crimes
mentioned thereof and on conviction to sentence them. Therefore, no
reference can be made to any other provision of law on matters covered
by the provisions of the NDPS Act and there is no justification to take
recourse to Act 1 of 1986.
4.8. Learned counsel placed reliance on following decisions:
Ram Manohar Lohia v State of Bihar and Anr4; Pushkar Mukherjee and
Ors. v. The State of West Bengal5; Arun Ghosh v. State of West Bengal6;
Ustakmiya Jabbarmiya Shaikh vs. M.M.Mehta, Commissioner of Police and Ors7;
State of UP and anr. V. Sanjai Pratap Gupta @ Pagpu and Ors8; Madhu Limaye v.
Sub-Divisoinal Magistrate, Monghyr and ors9; C.Neela v. State of Telangana and
ors10; K.K.Sarvana Babu v. State of Tamil Nadu and anr11; In RE, Sushanta
AIR 1986 SC 740
1969(1) SCC 10
1970(1) SCC 98
(1995) 3 SCC 237
(2004) 8 SCC 591
1970 (3) SCC 746
2017(2) ALD (Crl.) 760
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WP No.35503 of 2021
Goswami & Ors12; Sudhir Kumar Saha v. The Commissioner of Police, Calcutta
and Anr13; Magan Gope v. The State of West Bengal14; Jayanarayan Sukul v.
State of West Bengal15; Ummu Sabeena v. State of Kerala and ors16; K.M.Abdulla
Khuni & B.L.Abdul Khader v. UOI and Ors. State of Karnataka & Ors17; Abdul
Nasar Adam Ismail v. State of Maharashtra & Ors18; Golam Biswas v. Union of
India & anr19; Pabitra N. Rana v. Union of India & Ors20; Munagala Yadamma v.
State of A.P. and Ors21; V.Shantha v. State of Telangana and Ors (supra);
Dwarika Prasad Sahu v. State of Bihar and ors22; DR. Ram Krishan Bharadwaj v.
The State of Delhi and ors23; Rekha v. State of Tamil Nadu through Secretary to
Govt. and anr24; Dipak Bose @ Naripada vs. State of West Bengal25; Gulab Mehra
v. State of U.P26; K.Ramanamma v. Govt. of A.P27; Abdul Mohammed Shaikh v.
Union of India28 and Konala Anasuya v. State of Telangana and ors29.
5. Per contra, learned Government Pleader for Home would submit
that even when the detenue is in judicial custody, the detaining
authority can take note of possibility of the detenue securing the bail
and preventively detain the detenue in anticipation of securing bail. In
support of the said contention, learned Government Pleader placed
reliance on the decision of this Court in C.Neela (supra) and the decision
of Supreme Court in Arun Ghosh v. State of West Bengal ( supra).
(2008) 9 SCC 89
1969 (1) SCC 273
1970(1) SCC 149
(1975) 1 SCC 415
1970 (1) SCC 219
(2011) 10 SCC 781
(1991) 1 SCC 476
(2013) 4 SCC 435
(2015) 16 SCC 177
(1980) 2 SCC 338
(2012) 2 SCC 386
AIR 1975 SC 134
AIR 1953 SC 318
(2011) 5 SCC 244
(1973) 4 SCC 43
(1987) 4 SCC 302
1998(3) ALD 86 (DB)
Crl.Bail Appln.No.102 of 2020 dt.05.05.2021
W.P.No.1706 of 2021 dt 13.12.2021
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WP No.35503 of 2021
5.1. He would submit that as held by the Hon'ble Supreme Court in
Hemlata Kantilal Shah v. State of Maharashtra30, it is permissible for the
detaining authority to take note of the past history of the detenue for
the purpose of assessing the criminal conduct and mind set of the
detenue though order of detention has to be based on the crime
proximate to the decision to detain.
5.2. He further submitted that depending on the nature of crime
even a single offence can be the basis to resort to preventive detention.
This Court has been consistently holding that even when the person is
claimed to have been involved in one crime, depending on the nature of
crime involved, it is permissible to resort to preventive detention. He
relied on the decision of this Court in W.P.No.502 of 2021.
5.3. By placing reliance on the judgment of the Hon'ble Supreme
Court in Smt. Aruna Kumari v. Government of Andhra Pradesh and Ors31,
he would contend that confession of co-accused can be considered to
detain a person.
5.4. He would submit that the order of detention was passed after due
application of mind, on due consideration of the criminal background of
the detenue and her involvement in three crimes in the recent past, with
reference to sale of narcotic drugs. As narcotic drugs affect the health
of youth stringent action is taken by the police administration and the
(1981) 4 SCC 647
(1988) 1 SCC 296
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WP No.35503 of 2021
detention order is made only to ensure that the detenue will not be able
to resort to such crimes in future.
6. He would submit that as held by the Hon'ble Supreme Court in
Rekha v. State of Tamil Nadu (supra), preventive detention is an extreme
measure and not to be resorted unless the ordinary law enforcement
measures do not deal with the contingency and likely to result in
affecting the public order. In the case on hand, as only small quantity
of narcotic drugs were recovered from the house of the petitioner, it
cannot be said that such quantity would adversely impact the public
order.
7. It is not in dispute that excise officials raided two houses bearing
municipal Nos.1-24/4 and 1-24/5, on 10.3.2021, 1.9.2021 and
6.9.2021 and recovered ganja on three occasions. In connection
therewith they have arrested Sri Kalpathi Goutham Singh (son of the
detenue) and Sri Dheeru Singh (husband of the detenue). The detenue
was not present when the raid took place. Based on the confession of
son, the detenue was also implicated in the crime and was arrested. By
the time the competent authority took decision to preventively detain
the detenue, her bail applications were rejected and no bail application
was pending. However, on 20.10.2021 and 2.11.2021 bail was granted
in all the three crimes. In terms thereof, she would have been released
from custody but for the detention order. While granting bail, the
criminal Court imposed conditions. The detention order also refers to
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previous involvement of the detenue in crimes, though reason for
detention was on three crimes recently instituted against her.
8. We have carefully considered the submissions made by learned
counsel for petitioner and learned Government Pleader for Home and
the decisions cited across the bar.
9. Learned counsel for the petitioner and learned Government
Pleader made elaborate submissions for and against consideration of
the history of involvement in crimes to resort to detention. Having
regard to submissions made, it is necessary to travel in time on
precedent decisions to appreciate the submissions.
9.1. In Golam Hussain Vs. Commissioner of Police32, one of the issues
considered by the Hon'ble Supreme Court was with reference to
consideration of previous crimes as a basis for detention. The Hon'ble
Supreme Court held as under:
"5. ....... It is true that there must be a live link between the grounds of
criminal activity alleged by the detaining authority and the purpose of
detention, namely, inhibition of prejudicial activity of the species
specified in the statute. This credible chain is snapped if there is too
long and unexplained an interval between the offending acts and the
order of detention. Such is the ratio of proximity in Lakshman Khatik.
No authority, acting rationally, can be satisfied, subjectively or
otherwise, of future mischief merely because long ago the detenu had
done something evil. To rule otherwise is to sanction a simulacrum of a
statutory requirement. But no mechanical test by counting the months
of the interval is sound. It all depends on the nature of the acts relied
on, grave and determined or less serious and corrigible, on the length
of the gap, short or long, on the reason for the delay in taking
preventive action, like information of participation being available only
(1974) 4 SCC 530
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in the course of an investigation. We have to investigate whether the
causal connection has been broken in the circumstances of each case.
9.2. In Hemlata Kantilal Shah (supra), Hon'ble Supreme Court held,
"24. The past conduct or antecedent history of a person can
appropriately be taken into account in making a detention order. It is
indeed largely from prior events showing tendencies or inclinations of a
person that an inference can be drawn whether he is likely in the
future to act in a manner prejudicial to the maintenance of supplies
and services essential to the community or his act of violation of
foreign exchange regulations and his smuggling activities are likely to
have deleterious effect on the national economy."
9.3. In Sama Aruna vs State of Telangana33 :, this issue was again
considered by the Supreme Court. Hon'ble Supreme Court held that
"the conduct or activities in the past must be taken into account for coming to
a conclusion that he is going to engage in or make preparation for engaging in
such activity, for many such persons follow a pattern of criminal activities."
The Hon'ble Supreme Court next considered on how far a detaining
authority can go? Supreme Court answered by holding that "only
activities so far back can be considered as furnished a cause for preventive
detention in the present that is, only those activities so far back in the past
which lead to a conclusion that he is likely to engage or prepare to engage in
such activity in the immediate future can be taken into account"
(Paragraph-16). Having said so, Hon'ble Supreme Court also cautioned
that while resorting to detention, stale instances of crimes alleged to
have been committed should not be considered. Hon'ble Supreme Court
held,
(2018) 12 SCC 150
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"17. ......The detention order must be based on a reasonable
prognosis of the future behaviour of a person based on his past
conduct in light of the surrounding circumstances. The live and
proximate link that must exist between the past conduct of a person
and the imperative need to detain him must be taken to have been
snapped in this case. A detention order which is founded on stale
incidents, must be regarded as an order of punishment for a crime,
passed without a trial, though purporting to be an order of preventive
detention. The essential concept of preventive detention is that the
detention of a person is not to punish him for something he has done
but to prevent him from doing it".
9.4. The Hon'ble Supreme Court also cautioned that while exercising
the power of judicial review the Court should not substitute its
judgment for the decision of the executive.
10. From the precedent decisions, it can be culled out that to assess
the conduct of a person in the present and to detain him by exercising
powers under Act 1 of 1986, it is permissible for the detaining authority
to look back into the past criminal record of the person. However, while
doing so stale crimes should not be considered and the previous crimes
must have co-relation/ connection to present crimes to assess his
previous conduct and weigh the option of resorting to detain him.
Therefore, reference to past criminal record per se does not vitiate the
detention order. This issue requires consideration on the facts of a given
case.
11. In Khaja Bilal Ahmed (supra), Hon'ble Supreme Court considered
the very issue in detail and held as under:
"23. In the present case, the order of detention states that the fourteen
cases were referred to demonstrate the "antecedent criminal history
and conduct of the appellant". The order of detention records that a
"rowdy sheet" is being maintained at PS Rain Bazar of Hyderabad City
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and the appellant "could not mend his criminal way of life" and
continued to indulge in similar offences after being released on bail. In
the counter-affidavit filed before the High Court, the detaining
authority recorded that these cases were "referred by way of his
criminal background ... (and) are not relied upon". The detaining
authority stated that the cases which were registered against the
appellant between 2009 and 2016 "are not at all considered for passing
the detention order" and were "referred by way of his criminal
background only". This averment is plainly contradictory. The order of
detention does, as a matter of fact, refer to the criminal cases which
were instituted between 2007 and 2016. In order to overcome the
objection that these cases are stale and do not provide a live link with
the order of detention, it was contended that they were not relied on
but were referred to only to indicate the antecedent background of the
detenu. If the pending cases were not considered for passing the order
of detention, it defies logic as to why they were referred to in the first
place in the order of detention. The purpose of the Telangana Offenders
Act, 1986 is to prevent any person from acting in a manner prejudicial
to the maintenance of public order. For this purpose, Section 3
prescribes that the detaining authority must be satisfied that the
person to be detained is likely to indulge in illegal activities in the
future and act in a manner prejudicial to the maintenance of public
order. The satisfaction to be arrived at by the detaining authority must
not be based on irrelevant or invalid grounds. It must be arrived at on
the basis of relevant material; material which is not stale and has a live
link with the satisfaction of the detaining authority. The order of
detention may refer to the previous criminal antecedents only if they have a
direct nexus or link with the immediate need to detain an individual. If the
previous criminal activities of the appellant could indicate his tendency or
inclination to act in a manner prejudicial to the maintenance of public order,
then it may have a bearing on the subjective satisfaction of the detaining
authority. However, in the absence of a clear indication of a causal connection, a
mere reference to the pending criminal cases cannot account for the requirements
of Section 3. It is not open to the detaining authority to simply refer to stale
incidents and hold them as the basis of an order of detention. Such stale
material will have no bearing on the probability of the detenu engaging in
prejudicial activities in the future."
(emphasis supplied)
12. On a careful reading of the view expressed by the Hon'ble
Supreme Court in Khaja Bilal Ahmed (supra), it is clearly discernible
that Hon'ble Supreme Court emphasized the need to apply mind in
looking into previous crime record. If the detaining authority opines
that 'the previous criminal activities indicate tendency or inclination to act in
a manner prejudicial to the maintenance of public order that may have a
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bearing on the subjective satisfaction' he can take note of past crimes.
It is further held that if there is 'a clear indication of a causal connection'
the past criminal record can be the basis for detention under the Act 1
of 1986. The Hon'ble Supreme Court observed that previous crimes
must have casual connection/have direct nexus or link to immediate
need to detain.
13. In W.P.No.29162 of 2021, it was contended that the three crimes
registered against the detenue arose, out of inter-se dispute and do not
warrant detention. It was further contended that referring to previous
crimes in the order of detention, even if they were not relied upon, is
illegal. Learned counsel for petitioner relied on the decision of the
Hon'ble Supreme Court in Khaja Bilal Ahmed (supra). On going through
the record, it was found that stale cases and cases not having a link to
the present crimes were also referred to note the previous criminal
background. Therefore, this Court held that the order of detention was not
sustainable. The said decision is distinguishable on facts and do not come to
the aid of the denenue.
14. In the case on hand, the detaining authority referred to seven
crimes registered between 2017 to 2020. All these offences were
registered under the NDPS Act. Those crimes have direct nexus with
the immediate need to detain. They indicate the tendency of the detenue
to involve in similar crimes and to act in a manner prejudicial to the
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maintenance of public order. Therefore, the order of detention is not
vitiated on this ground.
15. It is next contended that on the date of detention order, the
detenue was in custody and no bail application was pending and
therefore the decision amounts to arbitrary exercise of power and
authority. It is settled principle of law that there is no bar to pass an
order of detention under Act 1 of 1986 merely because the detenue was
in custody. It is also appropriate to note that within three weeks of
order of detention, bail was granted to the detenue. Further, as order of
detention was made prior to Court granting bail, whether bail order
imposed conditions has no relevance to this case.
15.1. A constitution bench of Hon'ble Supreme Court dwelt into various
aspects of preventive detention in Haradhan Saha v. State of W.B.,34.
The Hon'ble Supreme Court held:
"32. The power of preventive detention is qualitatively different from
punitive detention. The power of preventive detention is a
precautionary power exercised in reasonable anticipation. It may or
may not relate to an offence. It is not a parallel proceeding. It does
not overlap with prosecution even if it relies on certain facts for
which prosecution may be launched or may have been launched.
An order of preventive detention may be, made before or during
prosecution. An order of preventive detention may be made with or
without prosecution and in anticipation or after discharge or even
acquittal. The pendency of prosecution is no bar to an order of
preventive detention. An order of preventive detention is also not a
bar to prosecution.
33. Article 14 is inapplicable because preventive detention and
prosecution are not synonymous. The purposes are different. The
authorities are different. The nature of proceedings is different. In a
prosecution an accused is sought to be punished for a past act. In
(1995) 3 SCC 198
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preventive detention, the past act is merely the material for
inference about the future course of probable conduct on the part
of the detenu.
34. The recent decisions of this Court on this subject are many. The
decisions in Borjahan Gorey v. State of W.B. [(1972) 2 SCC 550 :
1972 SCC (Cri) 888] , Ashim Kumar Ray v. State of W.B. [(1973) 4
SCC 76 : 1973 SCC (Cri) 723] ; Abdul Aziz v. District Magistrate,
Burdwan : [(1973) 1 SCC 301 : 1973 SCC (Cri) 321] and Debu
Mahato v. State of W.B. [(1974) 4 SCC 135 : 1974 SCC (Cri) 274]
correctly lay down the principles to be followed as to whether a
detention order is valid or not. The decision in Biram Chand v. State
of U.P. [(1974) 4 SCC 573 : 1974 SCC (Cri) 609] which is a Division
Bench decision of two learned Judges is contrary to the other
Bench decisions consisting in each case of three learned Judges.
The principles which can be broadly stated are these. First, merely
because a detenu is liable to be tried in a criminal court for the
commission of a criminal offence or to be proceeded against for
preventing him from committing offences dealt with in Chapter VIII
of the Code of Criminal Procedure would not by itself debar the
Government from taking action for his detention under the Act.
Second, the fact that the Police arrests a person and later on
enlarges him on bail and initiates steps to prosecute him under the
Code of Criminal Procedure and even lodges a first information
report may be no bar against the District Magistrate issuing an order
under the preventive detention. Third, where the concerned person is
actually in jail custody at the time when an order of detention is
passed against him and is not likely to be released for a fair length
of time, it may be possible to contend that there could be no
satisfaction on the part of the detaining authority as to the
likelihood of such a person indulging in activities which would
jeopardise the security of the State or the public order. Fourth, the
mere circumstance that a detention order is passed during the
pendency of the prosecution will not violate the order. Fifth, the
order of detention is a precautionary measure. It is based on a
reasonable prognosis of the future behaviour of a person based on
his past conduct in the light of the surrounding circumstances."
(emphasis supplied)
15.2. In Union of India Vs Paul Manikam (supra) the Hon'ble
Supreme Court held that subsisting custody of the detenue by itself
does not invalidate order of preventive detention but the detaining
authority must show its awareness to the fact of subsisting custody and
only if he is reasonably satisfied with cogent material that there is
likelihood of his release from custody, and by considering antecedent
activities which are proximate in point of time, decision taken to detain
him is valid. (paragraph 14).
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15.3. Following the earlier decision in Union of India Vs Paul
Manickam35, in Rekha Vs State of Tamil Nadu (supra) the Hon'ble
Supreme Court held:
"26. It was held in Union of India v. Paul Manickam [(2003) 8 SCC
342: 2004 SCC (Cri) 239] that if the detaining authority is aware of
the fact that the detenu is in custody and the detaining authority is
reasonably satisfied with cogent material that there is likelihood of
his release and in view of his antecedent activities he must be
detained to prevent him from indulging in such prejudicial
activities, the detention order can validly be made."
16. Preventive detention is different from prosecution in a crime. On
the charge of committing crime, the prosecution has to lead cogent and
unimpeachable evidence during the course of trial. Thus, no weightage
is given to an alleged confession before investigating officer to hold an
accused guilty unless the charge is proved in the trial. Whereas, while
taking recourse to power under Act 1 of 1986, the detaining authority
only looks into the nature of crime alleged to have been committed,
seriousness of the charge and previous crime record to assess whether
the individual would likely to commit similar crimes, if he is let loose
and such crimes would disturb public order. It is intended to prevent
from a possible committing of further crimes to ensure public order. In
the process of making an assessment to detain, the authority can look
into any material, including confession of the person or co-accused
recorded during the course of investigation into a crime.
(2003) 8 SCC 342
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17. This issue need not detain any further in view of the decision of
the Hon'ble Supreme Court in Smt K.Aruna Kumari (supra): The Hon'ble
Supreme Court held,
"8. ....The point now urged on the basis of the brand of cement was
taken on behalf of the petitioner belatedly as mentioned earlier.
Besides, the detenu accepted the allegations against himself in his
statement recorded under Section 161 of the Code of Criminal
Procedure. It is true that it may not be a legally recorded confession
which can be used as substantive evidence against the accused in the
criminal case, but it cannot be completely brushed aside on that
ground for the purpose of his preventive detention. "
18. The prohibited drugs and psychotropic substances are in wide
circulation. The drug lords have well connected network all over the
world. They make available through well organized supply chain to the
youth. These drugs and psychotropic substances attract youth and
they get addicted to them leading to severe health concerns and also
impacting their psychological profile. Youth are the bedrock of our
society and India has the credit to itself presence of high percentage of
youth in the population. Central and State Governments are seriously
concerned about the spread of narcotic drugs and psychotropic
substances adversely impacting the youth. In order to consolidate the
existing enactments made during pre-independence era and
developments in the field of illicit drug traffic and drug abuse at
National and International level, the Indian Parliament brought out
Narcotic Drugs and Psychotropic Substances Act, 1985 (Act 61 of
1985). On review of its performance and bottlenecks faced in
enforcement of the provisions of the Act 61 of 1985, from time to time,
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amendments are carried out. As of now, it is a comprehensive
enactment dealing with various aspects of Narcotic Drugs and
Psychotropic Substances. It has made stringent provisions and
tightened the law enforcement mechanism. It is relevant to note that
the ganja was recovered from the house of detenue on two occasions
and she was present on third occasion. As per the provisions of the Act
61 of 1985, it is not necessary that the prohibited drug should be
recovered from the person.
19. Act 1 of 1986 is primarily made at preventing disturbance to the
public order on account of frequent involvement of a person in crimes
which have an impact on the public at large, resulting in disturbance to
public order, which again is the concern of the State administration. Act
1 of 1986 intends to empower the competent authority to detain a
person preventively to ensure that he does not resort to disturbing the
public order. However, since, any detention would impact individual's
right to life, liberty and freedom, which are sacrosanct, the Act 1 of
1986 also provides enough safeguards.
20. These two enactments operate in two different fields but larger
objective of both enactments is same i.e., to ensure peace and
tranquility in the society and systematic development of various aspects
of the society. These two enactments intend to ensure that an
individual for his personal gain and with short sightedness to earn
quick and loads of money by any means, should not indulge in activities
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affecting the health and welfare of the public, more particularly youth,
and disturb the public order. Act 61 of 1985 is intended to prosecute
and sentence the accused on a crime already committed. Whereas, Act
1 of 1986 only intend to prevent such person from indulging in similar
crimes affecting public order. Court cannot be oblivious to the recent
increase in these crimes and increase in its spread and consumption.
Drug abuse is the biggest threat to the social fiber.
21. Therefore, they operate in two independent fields. Thus, merely
because prosecution is launched under Act 61 of 1985, does not
preclude the detaining authority to exercise powers under Act 1 of 1986
to detain a person alleged to have been involved in crimes registered
under Act 61 of 1985 and his conduct and behaviour likely to result in
disturbance to public order. As held by the Hon'ble Supreme Court in
Haradhan Saha (supra), the power of preventive detention is
qualitatively different from punitive detention, is a precautionary power
and need not relate to an offence and that it does not overlap.
22. On perusal of Crime No.6/2021 dated 10.03.2021, it is seen that
69 sachets of dry ganja, each weighing 10 grams, total 690 grams was
alleged to be seized from one Kalapathi Gowtam Singh, son of detenue,
from the house bearing No.1-24/5, Lodhabasthi, Nanakramguda,
Serilingampally, Ranga Reddy District and on enquiry he confessed
about the purchase of ganja by the detenue from Dhoolpet and that
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they were preparing the said sachets of 10 grams of ganja each for
selling the same to the needy customers and earning easy money.
23. In the second case pertaining to Crime No.24/2021, dated
01.09.2021, the Excise Officials seized 1.67 kgs., of dry ganja along
with liquor/beer bottles from the house bearing No.1-24/5,
Lodhabasthi, Nanakramguda from the possession of one Kalpathi
Munna Singh (husband of detenue). On questioning, he confessed that
the detenue brought the ganja from Dhoolpet and that they were
preparing the same into small packets of 5 grams each and were selling
the same to the needy customers to earn easy money.
24. In Crime No.26/2021, on 06.09.2021, the Prohibition and Excise
Officials raided House bearing No.1-24/4, Lodhabasthi, Nanakramguda
and on search of the house, they found 580 grams of dry ganja along
with liquor/beer bottles and found the present detenue in the said
house and on enquiry, she confessed about purchasing of ganja from
Dhoolpet and making it into small packets of 10 grams each and selling
the same to the needy people who were addicted to ganja.
25. As held by Hon'ble Supreme Court in Haradhan Shah (supra),
preventive detention is a precautionary measure and need not relate to
an offence. In the case on hand, as can be seen from the above
paragraphs, though quantity recovered from the houses of the accused
is not commercial quantity, it does not per se dilute the nature of
offence. The quantity recovered from the raid put into circulation, is
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good enough to impact and create havoc in the youth. Even a very
small quantity of ganja can impact health and mental faculties of a
person. Further, detaining authority noticed that the detenue was
involved in similar crimes on seven occasions and recently in three
crimes and, therefore, opines that it is desirable to preventively detain
her to ensure public order.
26. This Court consistently upheld the preventive detention of
persons involved in offences under NDPS Act, 1985. At this stage, it is
expedient to consider the opinion expressed by this Court in the
following cases arising under NDPS Act, 1985.
26.1. In Naresh Singh vs State of Telangana36, two cases were filed
against the detenu Manmohan Singh by the Police under the NDPS act
and he was thereby detained by the Police on 30.12.2019. In this case,
the detenu was caught peddling Ganja in two different instances. He
was caught with 22 Kgs of Ganja once and 2 kgs in another instance.
He was granted bail in both cases. However, to prevent the detenu from
indulging in such activities further and disturb the public order, the
preventive detention order was passed. The Court held that after he was
granted bail in earlier crimes the detenu resorted to the peddling of
Ganja and was caught with a higher quantity of the drug than before
which clearly shows his conduct leaning towards committing the same
crimes again and again and upheld the decisions of the detaining
WP No.502 of 2020, dt. 5.3.2020
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authority to detain the detenu so that he doesn't cause harm to the
public order.
26.2. In Sneha Singh vs State of Telangana37, two criminal cases were
registered against the detenu Pavan Singh who was caught peddling
Ganja. He was caught on two different occasions, the first being on
1.11.2019 with an amount of 1.1 kgs of Ganja, in which case he was
granted conditional bail on 4.12.2019, and the second being on
16.06.2020 with a quantity of 44 kgs of ganja. In the second crime, he
was granted conditional bail on 8.10.2020. The Court held that even
though the detenu was caught in the first crime and was released on
conditional bail, he still resorted to the same activity and got involved
for the second time with a huge quantity of ganja compared to the
earlier incident. The fact that he admitted that his father procures the
drug in large quantities weekly and money earned in this manner is
spent lavishly shows that detenu is inclined to this lifestyle and has a
high chance that he might resort to the same activity again if he is not
detained risking the public order. Holding so the Court upheld the
preventive detention order.
26.3. In Sandhya Singh vs State of Telangana38, the detenu Raj Kumar
Singh was caught peddling Ganja weighing 24 kgs on 17.08.2020.
There were five cases registered against him involving murder and
peddling of ganja from 2011 to 2019. He was caught transporting
WP No.1826 of 2021 dt.10.8.2021
WP No.102 of 2021 dt.22.4.2021
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4.28 kgs of Ganja in November, 2016, and was granted conditional bail
and released on 19.12.2016. In March, 2017 he was again caught with
1.5 kgs of ganja and he was again granted conditional bail and released
on 02.05.2017. In September, 2019, he was again caught transporting
4 kgs of ganja and released on 13.11.2019 and recently he was again
caught with 24 kgs of the drug. Having regard to his involvement in
these crimes, the preventive detention order was passed against him on
24.11.2020 to prevent him from affecting the public order in the future.
The Court opined that the detenu was committing multiple crimes
under the NDPS Act did not change his attitude and continued to
commit the same crime of peddling ganja in high quantities. Due to
these repeated offences, it is justified to preventively detain the detenu
to maintain public order.
26.4. In Banothu Jagan v State of Telangana39, the detenu Nunavath
Sudhakar was a Police Constable. In greed for money, he has indulged
in the peddling of ganja with his associates. In this present case, he was
caught transporting a huge amount of 81 kgs of ganja with his
associates. He was earlier caught in a similar crime and was suspended
from the service but continued to indulge in a similar crime. These two
offences were committed in quick succession. This Court held that
being in the police force and getting involved in such a crime would
WP No.19054 of 2020 dt.15.3.2021
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destroy the reputation of the police department. Therefore, upheld the
detention order.
27. We, therefore, see no merit in the Writ Petition. For all the
aforesaid reasons, the order of detention impugned herein is upheld
and the Writ Petition is dismissed. Pending miscellaneous petitions if
any shall stand closed.
______________________________
JUSTICE P.NAVEEN RAO
_______________________________
DR. JUSTICE G.RADHA RANI
Date: 21.03.2022
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Note: L R Copy to be marked- Yes
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HONOURABLE SRI JUSTICE P.NAVEEN RAO
AND
HONOURABLE DR. JUSTICE G.RADHA RANI
WRIT PETITION No.35503 of 2021
Date: 21-03-2022
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