Ayesha Begum vs The Commissioner Of Police And 2 ...
2022 Latest Caselaw 4571 Tel

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

      WRIT PETITION Nos.33464, 33475 and 33484 of 2021

COMMON ORDER:       (Per Hon'ble Dr. Justice Shameem Akther)



      Though the petitioners in these three Writ Petitions are

different, since the issue involved in these writ petitions is one and

the same and since the detenus in these writ petitions are the

accused in the same crime, all these Writ Petitions are being taken

up together and are being disposed of by way of this common

order.


2.    W.P.No.33464 of 2021 is filed by Mrs. Shabana Kousar, who

is the wife of the detenu, namely Mohd.Azher Ali, W.P.No.33475 of

2021 is filed by Mrs. Shahana Begum, who is the wife of detenu,

namely Shaik Ashraf Pasha, and W.P.No.33484 of 2021 is filed by

Mrs. Ayesha Begum, who is the wife of the detenu, namely Mohd.

Mahzer Ali, challenging the separate detention orders of the even

date, dated 01.11.2021, passed by respondent No.1-Commissioner

of Police, Hyderabad, vide SB (I) No.328/PD-3/HYD/2021, SB(I)

No.331/PD-3/HYD/2021 and SB(I) No.329/PD-3/HYD/2021

respectively, and the consequential confirmation orders of the

even date, dated 28.01.2022, passed by the Principal Secretary to

Government, General Administration (Spl. (Law & Order)) Dr.SA,J & JS,J WP Nos.33464/2021 & batch

Department, Government of Telangana, vide G.O.Rt.Nos.192, 195

and 193 respectively. Vide impugned detention orders, the

respective detenus were detained under Section 3(2) of the

Telangana Preventive Detention Act, 1986 (Act 1 of 1986).

3. We have heard the submissions of Sri Mohammed Abdul

Wahab, learned counsel for the petitioners in all these writ

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

Home appearing for the learned Additional Advocate General for

the respondents and perused the record.

4. The background facts of the case, in brief, is that by relying

on a solitary crime registered against the detenus in these writ

petitions in Crime No.441 of 2021 of Chandrayangutta Police

Station, Hyderabad Commissionerate, registered for the offence

under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (for short, 'NDPS Act'), the respondent

No.1-Commissioner of Police, Hyderabad, passed the impugned

detention orders of the even date, dated 01.11.2021. According to

the respondent No.1, the detenus are 'drug offenders', as they

have been indulging in highly dangerous activities of peddling

'ganja', a narcotic drug, among the people in the limits of

Hyderabad Police Commissionerate, duly endangering the lives of Dr.SA,J & JS,J WP Nos.33464/2021 & batch

youth and innocent people, causing irreparable damage to their

body organs, including the central nervous system and thereby,

crippling the mental and physical health of the people addicted to

drugs. With a view to prevent the detenus from damaging the

health of general public, especially youth, by supplying 'Ganja',

which is prejudicial to maintenance of public order, the impugned

detention orders of the even date, dated 01.11.2021 were passed,

which were confirmed by the Government by the orders of the

even date, dated 28.01.2022. Hence, these writ petitions before

this Court.

5. The learned counsel for the petitioners in these writ petitions

vehemently contended that the impugned detention orders are

illegal, arbitrary, unconstitutional, improper, against the principles

of natural justice and has been passed in a mechanical manner

and without application of mind. The detenus are falsely

implicated in the solitary crime relied by the detaining authority.

The alleged criminal activities of the detenus, in any event, would

not satisfy the word 'drug offender'. The detaining authority has

not applied its mind to the facts and circumstances of the case,

while passing the impugned detention orders. The bail petitions of

the detenus in the solitary crime relied by the detaining authority

are pending consideration before the Courts concerned. Thus, the Dr.SA,J & JS,J WP Nos.33464/2021 & batch

detenus continue to be in judicial custody as on the date of passing

of the impugned detention orders. Under these circumstances, the

apprehension of the detaining authority that the there is every

possibility of grant of bail to the detenus and their release on bail

from judicial remand soon and on such release, there is imminent

possibility of the detenus committing similar offences, which would

be detrimental to the public order, unless they are prevented from

doing so by an appropriate order or detention, is highly misplaced.

Further, the solitary crime relied by the detaining authority does

not add up to "disturbing the public order" and it is confined within

the ambit and scope of the word "law and order". Since the

offence alleged is under the NDPS Act, the detenus can certainly

be tried and convicted under the said special law. Thus, there was

no need for the detaining authority to invoke the draconian

preventive detention law against the detenus. Hence, the

impugned orders tantamount to colourable exercise of power.

The subjective satisfaction recorded by the detaining authority in

detaining the detenus 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 Dr.SA,J & JS,J WP Nos.33464/2021 & batch

Article 21 of the Constitution of India. Thus, the impugned

detention orders are legally unsustainable and ultimately, prayed

to set aside the same and allow the writ petitions as prayed for.

6. On the other hand, the learned Government Pleader for

Home appearing for the respondents, supported the impugned

detention orders and submitted the detenus have been indulging

in grave and dangerous activities of peddling 'Ganja', a narcotic

substance, duly endangering the lives of youth and causing

irreparable damage to their body organs including Central Nervous

System and thereby, crippling the health of those who are

addicted to drugs. The unlawful activities of the detenus were

causing widespread danger to the public health and were

detrimental to the public order. In the solitary crime relied by the

detaining authority, i.e., Crime No.441 of 2021, the police seized a

huge quantity of 400 kgs of ganja from the detenus. Free sale of

drugs not just impacts individuals and their health, but also

adversely affects the society at large and hence, it disturbs the

maintenance of public order. With a view to prevent the detenus

from indulging in similar prejudicial activities, the impugned

detention orders were passed. The subjective satisfaction reached

by the detaining authority in preventively detaining the detenus is

not tainted or illegal. Further, the Advisory Board, upon hearing Dr.SA,J & JS,J WP Nos.33464/2021 & batch

the detenus 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 detenus.

On considering the opinion of the Advisory Board and upon

considering the entire material, the Government confirmed the

impugned detention orders, vide orders of the even date, dated

28.01.2022. Therefore, the detaining authority was legally

justified in passing the impugned detention orders. All the

mandatory provisions and the safeguards envisaged under the law

were strictly followed, while passing the impugned detention

orders and hence, the impugned detention orders do not suffer

from illegality or impropriety and ultimately, prayed to dismiss the

Writ Petition.

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

that arises for determination in these Writ Petitions is:

"Whether the impugned detention orders of the even date, dated 01.11.2021 passed by the respondent No.1 and the consequential conformation orders of the even date, dated 28.01.2022, passed by the Principal Secretary to Government (Spl. (Law & Order)) Department, Government of Telangana, are liable to be set aside?"

Dr.SA,J & JS,J WP Nos.33464/2021 & batch

POINT:-

8. 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.

9. 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.

AIR 1966 SC 740 Dr.SA,J & JS,J WP Nos.33464/2021 & batch

10. 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.

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

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

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..."

12. 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 (1 supra),

Sama Aruna Vs. State of Telangana5 and Ram Manohar

Lohia Vs. State of Bihar6 held that a

"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.... 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

(1972) 3 SCC 831

(2021) 2 Supreme Court Cases 415

2022 SCC Online SC 424

(2018) 12 Supreme Court Cases 150

AIR 1966 SC 740 Dr.SA,J & JS,J WP Nos.33464/2021 & batch

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."

13. In the instant cases, the detaining authority, basing on a

solitary crime indicated above, has passed the impugned detention

orders of the even date, dated 01.11.2021. We shall present it 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
Sl.                      Occurrence       registration
         Crime No.                                              Offence          Nature
No.                                          of FIR
                                                            Section 20 (b)
                                                           (ii) (C) of NDPS
         441/2021 of
                                                                  Act       Cognizable/
1.     Chandrayanguta    02.09.2021        02.09.2021
                                                                            Non-bailable
        Police Station
                                                           Qty: 400 kgs of
                                                                 Ganja

14. As seen from the material placed on record, the solitary

crime relied upon by the detaining authority for preventively

detaining the detenus relate to peddling of ganja. The detenus

were arrested in connection with the said crime on 02.09.2021 and

remanded to judicial custody. Subsequently, the detenus moved

three bail petitions in the subject crime, which were dismissed by

the Court concerned and their fourth bail petition is pending

consideration before the Courts concerned, as on the date of Dr.SA,J & JS,J WP Nos.33464/2021 & batch

passing impugned detention order. Under these circumstances,

the apprehension that there is every possibility of granting bail to

the detenus and their release from judicial custody and on such

release, there is imminent possibility of committing similar

offences, which would be detrimental to public order unless they

are prevented from doing so by an appropriate order of detention,

is highly misplaced. It is the bounden duty of the Police to inform

the learned Public Prosecutor about the conduct of the detenus and

to handover the entire case record available against the detenus.

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

against the detenus and furnish the same to the Public

Prosecutor/Additional Public Prosecutor to defeat the bail

applications of the detenus. 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 detenus, if 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 against the detenus. Since the detenus

have allegedly committed offence punishable under the NDPS Act, Dr.SA,J & JS,J WP Nos.33464/2021 & batch

the said crime can be effectively dealt with under the provisions of

the 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.

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 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. Further, as held in Vijay Dr.SA,J & JS,J WP Nos.33464/2021 & batch

Narain Singh v. State of Bihar7, a single act or omission cannot

be characterized as a habitual act because, the idea of 'habit'

involves an element of persistence and a tendency to commit or

repeat similar offences, which is patently not present in the instant

case. In view of the facts and circumstances of the case, it is not

a fit case to apply the preventive detention laws and detain the

detenus, curtailing the liberty guaranteed under Article 21 of the

Constitution of India.

15. Even while passing the confirmation order, dated 28.01.2022,

the Principal Secretary to Government, General Administration

(Spl. (Law & Order)), Government of Telangana, has failed to

notice that the detenus continue to languish as under-trial in the

jail. Once the detenus were already confined, the question of

confirming the detention orders would not even arise.

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

unsustainable and are liable to be set aside.

17. In the result, the Writ Petitions are allowed. The impugned

detention orders of the even date, dated 01.11.2021, passed by

respondent No.1-Commissioner of Police, Hyderabad, vide SB(I)

No.328/PD-3/HYD/2021, SB(I) No.331/PD-3/HYD/2021 and SB(I)

(1984) 3 SCC 14 Dr.SA,J & JS,J WP Nos.33464/2021 & batch

No.329/PD-3/HYD/2021 respectively, and the consequential

confirmation orders of the even date, dated 28.01.2022, passed by

the Principal Secretary to Government, General Administration

(Spl. (Law & Order)) Department, Government of Telangana, vide

G.O.Rt.Nos.192, 195 and 193 respectively, are hereby set aside.

The respondents are directed to set the detenus, namely,

Mohd.Azher Ali, S/o. Mohd.Qasim; Shaik Ashraf Pasha, S/o.

Mahaboob Pasha; and Mohd.Mahzer Ali, S/o. Mohd.Qasim Ali, at

liberty forthwith, if they are no longer required in any criminal

case.

Miscellaneous Petitions, if any, pending in these writ

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

____________________ Dr. SHAMEEM AKTHER, J

_________________ JUVVADI SRIDEVI, J

13th September, 2022 Bvv