Badker Kasturi vs The State Of Telangana
2022 Latest Caselaw 4569 Tel

       THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
                         AND
        THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI

                 WRIT PETITION No.12035 OF 2022
ORDER:       (Per Hon'ble Dr. Justice Shameem Akther)


     Mrs. Badker Kasturi, the petitioner, has filed this Habeas

Corpus petition on behalf of her son, Thakur Deepak Singh Badekar

@ Deepak, S/o. Thakur Madhusudhan Singh, the detenu, challenging

the detention order vide SB(I) No.233/PD-7/HYD/2021, dated

03.11.2021, 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.Rt.No.245, General Administration (Spl.

(Law & Order)) Department, dated 01.02.2022, passed by the

respondent No.1.

2. Heard Sri Pasham Trivikram Reddy, learned counsel for the

petitioner, Sri T.Srikanth Reddy, learned Government Pleader for

Home representing the learned Additional Advocate General for the

respondents, and perused the record.

3. The case of the petitioner is that basing on three (3) crimes

registered against the detenu viz., Crime No.139/2020 of

Kamatipura Police Station and 40/2021 of Charminar Police Station

of Hyderabad Police Commissionerate, and 165/2021 of Shamshabad Dr.SA,J & JS,J

Police Station of Cyberabad Police Commissionerate, the respondent

No.2 passed the impugned detention order, dated 03.11.2021.

According to respondent No.2, the detenu is a 'Goonda', as he, along

with his associates, has been habitually committing offences

including mischief by fire and extortion in the limits of Hyderabad

and Cyberabad Police Commissionerates, thus creating widespread

fear, terror and panic among the people, thereby adversely affecting

the maintenance of public order. Subsequently, the impugned

detention order was confirmed by the Government, vide

G.O.Rt.No.245, dated 01.02.2022.

4. Learned counsel for the petitioner would submit 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.

Already criminal law was set into motion against the detenu. The

detenu was granted bail by the Courts concerned in all the three (3)

crimes relied by the detaining authority and he was released from

judicial custody on bail. But he was again sent to prison by invoking

the draconian preventive detention laws on the apprehension that

there is imminent possibility of the detenu committing similar

offences, which is unjustified. The alleged crimes do not add up to

"disturbing the public order" and they are confined within the ambit Dr.SA,J & JS,J

and scope of the word "law and order". Since the offences alleged

are under the Indian Penal Code, 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 law.

Hence, the impugned orders tantamount to colourable exercise of

power. The subjective satisfaction recorded by the detaining

authority in preventively 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 and personal liberty enjoyed by the

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

impugned orders are legally unsustainable and ultimately, prayed to

allow the Writ Petition, as prayed for.

5. On the other hand, the learned Government Pleader for Home

appearing for the respondents supported the impugned orders and

submitted that the detenu is a 'Goonda', as he along with his

associates has been habitually committing grave and dangerous

offences including mischief by fire and extortion, in an organized

manner, thereby causing large scale fear, terror and panic among

the people, thereby adversely affecting the maintenance of Public

Order. Since the detenu got bail in all the three crimes relied upon Dr.SA,J & JS,J

by the detaining authority, the apprehension of the detaining

authority that there is imminent possibility of the detenu committing

similar offences, is not misconceived. The series of crimes allegedly

committed by the detenu were sufficient to cause a feeling of

insecurity in the minds of the people at large. Since the modus of

committing the crime was mischief by fire and extortion, it has

created sufficient panic in the minds of the general public.

Therefore, the detaining authority was legally justified in passing the

impugned detention order. Further, the Advisory Board rendered its

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

on considering the same along with the entire material, the

Government confirmed the impugned detention order vide

G.O.Rt.No.245, dated 01.02.2022. All the mandatory requirements

were strictly followed by the detaining authority while passing the

impugned detention order. The impugned orders are legally

sustainable 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 SB(I) No.233/PD-7/HYD/2021, dated 03.11.2021, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.245, General Administration (Spl. (Law & Order)) Department, dated 01.02.2022, passed by the respondent No.1, are liable to be set aside?"

Dr.SA,J & JS,J

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

"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.

1 AIR 1966 SC 740 Dr.SA,J & JS,J

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

'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

2 (1972) 3 SCC 831 3 (2021) 2 Supreme Court Cases 415 Dr.SA,J & JS,J

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)

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

4 2022 SCC Online SC 424 5 (2018) 12 Supreme Court Cases 150 6 2022 LiveLaw (SC) 559 Dr.SA,J & JS,J

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 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 three

(3) crimes indicated above, has passed the impugned detention

order, dated 03.11.2021. 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
   139/2020 of                                     Section 435 r/w 34      Cognizable/
                    02.09.2020      02.09.2020
  Kamatipura PS                                          of IPC             Bailable

   40/2021 of                                                              Cognizable/
                    13.02.2021      13.02.2021     Section 435 of IPC
  Charminar PS                                                              Bailable

  165/2021 of                                      Section 384 r/w 34     Cognizable/
                    29.03.2021      29.03.2021
 Shamshabad PS                                           of IPC           Non Bailable

14. As seen from the material placed on record, the three (3)

crimes relied by the detaining authority for preventively detaining the

detenu relates to Mischief by fire and Extortion. The detenu was

arrested in connection with all the three crimes and he was granted

bail in all the three crimes the Courts concerned and he was released

from judicial custody. Under these circumstances, the apprehension Dr.SA,J & JS,J

of the detaining authority that after release on bail, the detenu

continued to commit similar offences and in view of the habitual

nature of committing crimes, there is imminent possibility of his

committing similar offences 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, it is the bounden duty of the Police to

inform the learned Public Prosecutor about the conduct of the detenu

and to handover the entire case record available against the detenu.

The police are supposed to be vigilant in collecting the whole data

against the detenu and furnish the same to the Public

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

of the detenu. Further, a mere apprehension of 'breach of law and

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, would continue to

indulge in 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 Dr.SA,J & JS,J

against the detenu. Further, since the detenu has allegedly

committed offence punishable under the Indian Penal Code, the

subject crimes can be effectively dealt with under the provisions of

Indian Penal Code 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. Under these circumstances, the

subjective satisfaction recorded by the detaining authority in

detaining the detenus can be said to be tainted with malice. 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 of India 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 Dr.SA,J & JS,J

substitute the punitive law of land, by ready resort to preventive

detention.

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 SB(I) No.233/PD-7/HYD/2021, dated

03.11.2021, passed by the respondent No.2, and the consequential

confirmation order vide G.O.Rt.No.245, General Administration (Spl.

(Law & Order)) Department, dated 01.02.2022, passed by the

respondent No.1, are hereby set aside. The respondents are

directed to set the detenu, namely, Thakur Deepak Singh Badekar @

Deepak, S/o. Thakur Madhusudhan Singh, at liberty forthwith, if he

is no longer required in any other criminal case.

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

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

______________________ Dr. SHAMEEM AKTHER, J

___________________ JUVVADI SRIDEVI, J 13th September, 2022 Bvv