Telangana High Court
Gazala Firdous vs The State Of Telangana on 27 January, 2023
Bench: A.Abhishek Reddy, Juvvadi Sridevi
HIGH COURT FOR THE STATE OF TELANGANA
THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
AND
THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
WRIT PETITION No.34790 of 2022
Date : 27-01-2023.
Between :
Gazala Firdous ... Petitioner
and
The State of Telangana,
Rep. by its Principal Secretary (Home),
BRKR Building, Hyderabad,
and others
... Respondents
Counsel for the petitioner: Sri C. Sharan Reddy
Counsel for the respondents: Sri Mujeeb Kumar,
learned Spl. Govt. Pleader
appearing for learned Additional
Advocate General
The Court made the following:
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WP No. 34790 of 2022
ORDER: (Per the Hon'ble Sri Justice A.Abhishek Reddy)
Smt. Gazala Firdous, the mother of the detenu viz., Syed
AbdahuQuadri @ Kashaf, has filed the present Writ Petition,
challenging the Detention Order passed by 2nd respondent, who by
exercising the powers conferred 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,
Fertiliser Offenders, Food Adulteration Offenders, Fake Document
Offenders, Scheduled Commodities Offenders, Forest Offenders,
Gaming Offenders, Sexual Offenders, Explosive Substances
Offenders, Arms Offenders, Cyber Crime Offenders and White
Collar or Financial Offenders Act, 1986 (in short, 'the
Preventive Detention Act'), had issued proceedings vide
SB(I) No.158/PD-7/HYD/2022, dated 30.08.2022, and approved
by the 1st respondent vide G.O.Rt.No.1683 General Administration
(Spl. {Law & Order}) Department, dated 02.09.2022 and confirmed
vide G.O.Rt.No.1989 General Administration (Spl. {Law & Order})
Department, dated 21.10.2022, alleging that the detenu has been
habitually posting provocative and inflammatory messages and
videos in social media through his Twitter account with an
intention to promote enmity between Hindus and Muslims and
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cause breach of communal peace and disturb the public
tranquillity.
2) Heard Sri C. Sharan Reddy, the learned counsel for the
petitioner, Sri Mujeeb Kumar, the learned Special Government
Pleader appearing for the respondents and perused the record.
3) The case of the petitioner is that by relying only on two
criminal cases, the respondent No.2 has passed the impugned
detention order dated 30.08.2022. According to respondent No.2,
the detenu is a 'Goonda, as he has been habitually indulging in
posting provocative and inflammatory messages and videos in
social media with an intention to promote enmity between
Muslims and Hindus to cause breach of communal peace and
disturb the public tranquillity.
4) Learned counsel for the petitioner would contend that the
impugned detention order has been passed in a mechanical
manner and without application of mind. Already criminal law was
set into motion against the detenu. Even though the detenu was
granted bail in crime No.55 of 2022 and in crime No.1520 of 2022
notice under Section 41-A Cr.P.C. was issued to the detenu, the
detenu continued to be in judicial custody due to passing of the
impugned detention order. Under these circumstances, the
apprehension of the detaining authority that there is imminent
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WP No. 34790 of 2022
possibility of the detenu committing similar offences is highly
misplaced. The two crimes relied on by the detaining authority do
not add up to "disturbing the public order" and it is confined
within the ambit and scope of the word "law and order" and there
was no need for the detaining authority to invoke the draconian
preventive detention law against the detenu. Hence, the impugned
order tantamount to colourable exercise of power. The impugned
order is legally unsustainable and ultimately, prayed to allow the
Writ Petition, as prayed for.
5) On the other hand, the learned Special Government Pleader
appearing for the respondents has supported the impugned order
and submitted that the detenu is a 'Goonda'. He has been
indulging in posting provocative and inflammatory messages and
videos and thereby creating hatred and ill-will between Muslims
and Hindus. Further, the apprehension of the respondent
authorities that there is imminent possibility of his committing
similar offence is not misconceived. The crimes allegedly
committed by the detenu were causing widespread danger to
communal harmony. Therefore, the detaining authority was legally
justified in passing the impugned detention order. All the
mandatory requirements were strictly followed by the detaining
authority while passing the impugned detention order. Therefore,
the impugned order is legally sustainable and prayed to dismiss
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WP No. 34790 of 2022
the Writ Petition. In support of his submissions, learned Special
Government Pleader has relied on the judgment of the Hon'ble
Supreme Court in Subramanian v. State of Tamil Nadu1.
6) In view of the submissions made by both the sides, the point
that rises for determination in this Writ Petition is:
"Whether the detention order vide SB(I) No.158/PD-7/HYD/022,
dated 30.08.2022, passed by respondent No.2, approved by the
1st respondent vide G.O.Rt.No.1683 General Administration (Spl.
{Law & Order}) Department, dated 02.09.2022 and confirmed vide
G.O.Rt.No.1989 General Administration (Spl. {Law & Order})
Department, dated 21.10.2022, are liable to be set aside or not?"
POINT:
7) In the instant case, the detaining authority while referring to
four crimes registered against the detenu has relied only on two
cases for preventively detaining him. The below tabular form
shows the date of occurrence, the date of registration of FIR, the
offence complained of and their nature, such as bailable/non-
bailable or cognizable/non-cognizable.
Sl. Crime No. Date of Date of Offences Nature
No. occurrence registration U/Secs.
of FIR
1520/2022 of
Cyber Crime
153(A), 505(2) and
PS, CCS, Non-bailable,
1. Detective
22/23.08.2022 24.08.2022 504 IPC
Non-cognizable
Department,
Hyderabad
55/2022 of Non-bailable
2) Chaderghat PS
08.02.2022 08.02.2022 505 (1)(b), 153a IPC
Non-cognizable
1 (2012) 4 SCC 699
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WP No. 34790 of 2022
8) The allegations, in brief, made against the Detenu in the
cases relied by the detaining authority for passing the impugned
detention order are mentioned hereunder for better adjudication of
the matter.
(a) Crime No.1520/2022 of Cyber Crime PS, CCS, Detective
Department, Hyderabad.
It is alleged that on the intervening night of 22/23.08.2022,
the proposed detenu along with number of supporters staged a
Dharna in front of the office of the Commissioner of Police,
Hyderabad, at Basheerbagh, in protest against posting of offensive
video by one T. Raja Singh, MLA, in "Shree Ram Channel,
Telangana', commenting against Prophet Mohammed and his life
style and the detenu demanded the arrest of said Raja Singh and
also raised slogans 'Naare Takbeer Allah Hu Akbar-Gustak-e-
Rasool ki ek hi saza, sar tan se juda' (beheading is the only
punishment for a person who disrespects of Prophet) and thereby
created hatred and ill-will between the Muslim and Hindu religious
communities adversely affecting the maintenance of public order.
(b) Crime No.55/2022 of Chaderghat PS
It is alleged that on 08.02.2022, the detenu had posted a
video in WhatsApp instigating the people to stage 'dharna' at
Pragati Bhavan, Begumpet, Hyderabad, in protest against
demolition of 400 years old Qutub Shahi Masjid at Shameerpet
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alleging that it was demolished due to the alleged negligence of
Telangana Government, even though the removal of the mosque
was done with the mutual consent of the parties involved and there
was no communal and law and order issue.
9) One of the objects and reasons for enactment of the
Preventive Detention Act is to ensure that the maintenance of
public order in the State of Telangana and not being adversely
affected by the activities of specially identified thirteen classes of
known anti-social elements viz., Spurious Seed Offenders,
Insecticide Offenders, Fertiliser Offenders, Food Adulteration
Offenders, Fake Document Offenders, Scheduled Commodities
Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders,
Explosive Substances Offenders, Arms Offenders, Cyber Crime
Offenders and White Collar or Financial Offenders, without
resorting to the National Security Act, 1980, the Preventive
Detention Act, 1986, has been enacted to provide for preventive
detention of the persons indulging in these kind of dangerous
activities.
10) Undoubtedly, under the provisions of the Preventive
Detention Act, the detaining authority has the power and authority
to pass a detention order against a person who is involved in
committing the various crimes specified in Section 2 of the
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Preventive Detention Act. The detaining authority must be
satisfied that there are valid grounds for passing a detention order
and unless and until such a detention order is not passed against
the said person, there is every likelyhood of the said person
committing more such similar offences which are likely to effect the
maintenance of public order. The said detention order should be
in furtherance of maintaining the public order and to the
subjective satisfaction of the detaining authority. The detaining
authority before passing the order of detention should be satisfied
that the ordinary law dealing with criminal justice system is not
sufficient to reign the detenu and that there is every likelihood of
the breach of law by the detenu. It is settled law that the
subjective satisfaction of the detaining authority cannot be
subjected to an objective test by the Courts and the Courts cannot
sit in appeal over the said order of detention. However, if the Court
finds that the order of detention was not based on any valid or
reasonable ground, then the said order is liable to be set aside.
The detaining authority must be satisfied that the alleged crime
committed by the accused falls squarely within the ambit of "public
order" and cannot be dealt with under normal criminal laws or can
be dealt as "law and order" problem. Apprehension of the
detaining authority, however strong it may be, cannot be a valid
ground for passing the detention order. The degree of difference
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between the concept of "public order" and "law and order" is razor-
thin and may overlap in some instances and the Courts should be
very careful and cautious while testing the validity of the detention
order.
11) Any detention order is sustainable only when the criminal
activities of the individual largely/adversely affect the public at
large or disturb the public order. Whether the alleged criminal
activities or cases referred to above have the propensity to disturb
the public order or not or can be dealt with under the normal Penal
laws of the State are some of the primary considerations that have
to be taken into consideration by the Courts. Admittedly, in this
particular case, the offences alleged to have been committed by the
detenu are falling under the provisions of the Indian Penal Code
and the crimes are registered accordingly.
12) The Hon'ble Supreme Court as well as this Court, time and
again, have held that when the individual cases can be dealt with
under the normal criminal justice system, there is no need for the
detaining authority to invoke the draconian preventive detention
laws. That the detaining authority should be vary of invoking the
immense power under the Act, if the normal penal laws are
sufficient to deal with the said crime.
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WP No. 34790 of 2022
13) The Hon'ble Supreme Court as well as this Court, in a catena
of cases, have distinguished the 'law & order' and 'public order'.
(a) In Munagala Yadamma v. State of A.P.2 the Hon'ble
Supreme Court has held, at paras 7 and 9, as under:
"7. Having considered the submissions made on behalf of the
respective parties, we are unable to accept the submissions made on
behalf of the State in view of the fact that the decision in Rekha v.
State of T.N. [(2011) 5 SCC 244], in our view, clearly covers the facts
of this case as well. The offences complained of against the appellant
are of a nature which can be dealt with under the ordinary law of the
land. Taking recourse to the provisions of preventive detention is
contrary to the constitutional guarantees enshrined in Articles 19 and
21 of the Constitution and sufficient grounds have to be made out by
the detaining authorities to invoke such provisions.
9. No doubt, the offences alleged to have been committed by
the appellant are such as to attract punishment under the Andhra
Pradesh Prohibition Act, but that in our view has to be done under the
said laws and taking recourse to preventive detention laws would not
be warranted. Preventive detention involves detaining of a person
without trial in order to prevent him/her from committing certain
types of offences. But such detention cannot be made a substitute for
the ordinary law and absolve the investigating authorities of their
normal functions of investigating crimes which the detenu may have
committed. After all, preventive detention in most cases is for a year
only and cannot be used as an instrument to keep a person in
perpetual custody without trial. Accordingly, while following the
three-Judge Bench decision in Rekha v. State of T.N. [(2011) 5 SCC
244] we allow the appeal and set aside the order passed by the High
Court dated 20-7-2011 and also quash the detention order dated 15-
2-2011, issued by the Collector and District Magistrate, Ranga Reddy
District, Andhra Pradesh."
2 (2012) 2 SCC 386 : (2012) 1 SCC (Crl) 889
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WP No. 34790 of 2022
(b) In Vasnthu Sumalatha vs. State of Andhra Pradesh3 a
Division Bench of this Court has held as under:
"2. Preventive detention is a serious invasion of personal liberty and
such meager safeguards as the Constitution has provided, against the
improper exercise of the power, must be jealously watched and
enforced by the Court (Ram Krishan Bharadwaj v. State of Delhi
MANU/SC/0011/1953 : AIR 1953 SC 318). Article 22(3) (b) of the
Constitution of India, which permits preventive detention, is an
exception to Article 21 of the Constitution. An exception cannot,
ordinarily, nullify the full force of the main rule, which is the right to
liberty guaranteed under Article 21 of the Constitution. An exception
can apply only in rare cases. The imposition of what is, in effect, a
substantial term of imprisonment by the exercise of executive
discretion, without trial, lies uneasily with the ordinary concepts of
the rule of law. Rekha v. State of T.N. MANU/SC/0366/2011 : (2011)
5 SCC 244; R.v. Secy. Of State for the Home Deptt., ex p Stafford
(1998) 1 WLR 503 (CA)). The law of preventive detention can only be
justified by striking the right balance between individual liberty on the
one hand and the needs of an orderly society on the other. (Commr.
Of Police v. C. Anita MANU/SC/0661/2004 : (2004) 7 SCC 647; Union
of India v. Amrit Lal Manchanda MANU/SC/0133/2004 : (2004) 3
SCC 75).
64. "Public order" is synonymous with public safety and tranquility.
Public order, if disturbed, must lead to public disorder. Every breach
of the peace does not lead to public disorder. Disorder is no doubt
prevented by the maintenance of law and order also, but disorder is a
broad spectrum, which includes at one end small disturbances and at
the other the most serious and cataclysmic happenings (Ram
Manohar Lohia MANU/SC/0054/1965 : AIR 1966 SC 740 ; C. Anita
MANU/SC/0661/2004 : (2004) 7 SCC 467).
70. The detaining authority cannot wish away the fact that, in the
grounds of detention, he has recorded his satisfaction of the need to
detain the detenus as he apprehended their activities to be injurious
to "public peace" and "law and order" neither of which are grounds for
3 MANU/AP/0602/2015
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WP No. 34790 of 2022
detaining a citizen, in preventive custody, under A.P. Act 1 of 1986.
Even if the order and the grounds for detention are read together, the
fact that the detaining authority has recorded his satisfaction in the
Orders of detention on grounds of "public order", and in the grounds
of detention, as affecting "public peace" and "law and order", reflect
his confused state of mind, and lack of clarity of thought in satisfying
himself whether the detention should be on grounds of "public order"
has acquired a meaning distinct from "law and order" and, as the
detaining authority is not empowered to detain citizens on grounds
that their activities are injurious to "public peace and law and order",
his subjective satisfaction is based on extraneous and irrelevant
considerations invalidating the orders of detention."
(c) In Pushkar Mukherjee v. State of W.B.4, the Hon'ble Supreme
Court, at paras 13 and 15, has held as under:
"13........In the present case we are concerned with
detention under Section 3(1) of the Preventive Detention Act
which permits apprehension and detention of a person
likely to act in a manner prejudicial to the maintenance of
public order. Does the expression "public order" take in
every kind of infraction of order or only some categories
thereof. It is manifest that every act of assault or injury to
specific persons does not lead to public disorder. When two
people quarrel and fight and assault each other inside a
house or in a street, it may be said that there is disorder
but not public disorder. Such cases are dealt with under the
powers vested in the executive authorities under the
provisions of ordinary criminal law but the culprits cannot
be detained on the ground that they were disturbing public
order. The contravention of any law always affects order but
before it can be said to affect public order, it must affect the
community or the public at large. In this connection we
must draw a line of demarcation between serious and
aggravated forms of disorder which directly affect the
4 1969 (1) SCC 10
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WP No. 34790 of 2022
community or injure the public interest and the relatively
minor breaches of peace of a purely local significance which
primarily injure specific individuals and only in a secondary
sense public interest. A mere disturbance of law and order
leading to disorder is thus not necessarily sufficient for
action under the Preventive Detention Act but a disturbance
which will affect public order comes within the scope of the
Act. A District Magistrate is therefore entitled to take action
under Section 3(1) of the Act to prevent subversion of public
order but not in aid of maintenance of law and order under
ordinary circumstances. In Dr Ram Manohar Lohia v. State
of Bihar, [(1966) 1 SCR 709] it was held by the majority
decision of this Court that the expression "public order" was
different and does not mean the same thing as "law and
order". The question at issue in that case was whether the
order of the District Magistrate, Patna, under Rule 30(1)(b)
of the Defence of India Rules, 1962, against the petitioner
was valid. Rule 30(1)(b), provided that a State Government
might, if it was satisfied with respect to a person that with a
view to preventing him from acting in a manner prejudicial
to "public safety and maintenance of public order" it is
necessary to do so, order him to be detained. The order of
the District Magistrate stated that he was satisfied that with
a view to prevent the petitioner from acting in any manner
prejudicial to the "public safety and the maintenance of law
and order", it was necessary to detain him. Prior to the
making of the order the District Magistrate had, however,
recorded a note stating that having read the report of the
Police Superintendent that the petitioner's being at large
was prejudicial to "public safety" and "maintenance of
public order", he was satisfied that the petitioner should be
detained under the rule. The petitioner moved this Court
under Article 32 of the Constitution for a writ of habeas
corpus directing his release from detention, contending that
though an order of detention to prevent acts prejudicial to
public order may be justifiable an order to prevent acts
prejudicial to law and order would not be justified by the
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WP No. 34790 of 2022
rule. It was held by the majority judgment that what was
meant by maintenance of public order was the prevention of
disorder of a grave nature, whereas, the expression
"maintenance of law and order" meant prevention of
disorder of comparatively-lesser gravity and of local
significance. At p. 746 of the Report, Hidayatullah, J., as he
then was, observed as follows in the course of his judgment:
"It will thus appear that just as 'public order' in the
rulings of this Court (earlier cited), was said to comprehend
disorders of less gravity than those affecting 'security of
State', 'law and order' also comprehends of less gravity than
those affecting 'public order'. One has to imagine three
concentric circles. Law and order represents the largest
circle within which is the next circle representing public
order and the smallest circle represents security of the
State. It is then easy to see that an act may affect law and
order, but not public order just as an act may affect public
order but not security of the State. By using the expression
'maintenance of law and order' the District Magistrate was
widening his own field of action and was adding a clause to
the Defence of India Rules."
15. The difference between the concepts of a "public order"
and "law and order" is similar to the distinction between
"public" and "private" crimes in the realms of jurisprudence.
In considering the material elements of crime, the historic
tests which each community applies are "intrinsic
wrongfulness" and social expediency which are the two
most important factors which have led to the designation of
certain conduct as criminal. Dr Allen has distinguished
"public" and "private" crimes in the sense that some
offenses primarily injure specific persons and only
secondarily the public interest, while others directly injure
the public interest and affect individuals only remotely. (See
Dr Allen's Legal Duties, p. 249). There is a broad distinction
along these lines, but differences naturally arise in the
application of any such test. The learned author has
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WP No. 34790 of 2022
pointed out that out of 331 indictable English offenses, 203
are public wrongs and 128 private wrongs."
(Emphasis added)
(d) In Rekha vs State of Tamilnadu5, the Hon'ble Supreme
Court, at paras 23 and 30, has held as under:
23. ....criminal cases are already going on against the detenu
under various provisions of the Indian Penal Code as well as
under the Drugs and Cosmetics Act, 1940 and if he is found
guilty, he will be convicted and given appropriate sentence. In
our opinion, the ordinary law of the land was sufficient to deal
with this situation, and hence, recourse to the preventive
detention law was illegal."
30. Whenever an order under a preventive detention law is
challenged, one of the questions the court must ask in
deciding its legality is : Was the ordinary law of the land
sufficient to deal with the situation ? If the answer is in the
affirmative, the detention order will be illegal. In the present
case, the charge against the detenu was for selling expired
drugs after changing their labels. Surely the relevant
provisions in the Indian Penal Code and the Drugs and
Cosmetics Act were sufficient to deal with this situation.
Hence, in our opinion, for this reason also the detention
order in question was illegal.
(Emphasis added)
14) Further, the Hon'ble Supreme Court while dealing with the
provisions of the Preventive Detention Act has held that the
personal liberty of a person is a precious right, which cannot be
tampered with by invoking the draconian powers under the
Preventive Detention Act.
5 (2011) 5 SCC 244
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(a) In the Nine-Judge Constitution Bench decision in
I.R. Coelho v. State of T.N.6 the Hon'ble Supreme Court has
observed as follows:
"109. ......It is necessary to always bear in mind that
fundamental rights have been considered to be (the) heart and
soul of the Constitution
49. ..... Fundamental rights occupy a unique place in
the lives of civilized societies and have been described in
judgments as "transcendental", "inalienable", and primordial".
(b) In Frances Coralie Maullin vs. W.C. Khambra7 a Division
Bench of the Hon'ble Supreme Court has held, at para 5, as under:
"5. We have no doubt in our minds about the role of the
court in cases of preventive detention: it has to be one of eternal
vigilance. No freedom is higher than personal freedom and no duty
higher than to maintain it unimpaired. The Court's writ is the
ultimate insurance against illegal detention. The Constitution enjoins
conformance with the provisions of Article 22 and the Court exacts
compliance. Article 22(5) vests in the detenu the right to be provided
with an opportunity to make a representation. Here the Law Reports
tell a story and teach a lesson. It is that the principal enemy of the
detenu and his right to make a representation is neither high-
handedness nor mean-mindness but the casual indifference, the
mindless insensibility, the routine and the red tape of the
bureaucratic machine."
15) Admittedly, in the present case, out of the two crimes
registered against the detenu and relied by the detaining authority
for passing the impugned detention order, one crime viz., Crime
6 (2007) 2 SCC 1
7 (1970) 3 SCC 746
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No.55 of 2022 of Chaderghat Police Station pertains to the month
of February, 2022. Therefore, after a gap of six months after
registration of the crime, no nexus can be drawn between the said
crime and passing of the impugned order.
16) The Hon'ble Supreme Court in a catena of cases has held
that the Detaining Authority while passing the detention orders
should be very cautious and careful where the person has been
enlarged on bail.
(a) In Vijay Narain Singh vs. State of Bihar8 a three-Judge
Bench of the Hon'ble Supreme Court has held, at para 32, as
under:
"32. ...... It is well settled that the law of preventive detention
is a hard law and therefore it should be strictly construed. Care
should be taken that the liberty of a person is not jeopardized unless
his case falls squarely within the four corners of the relevant law. The
law of preventive detention should not be used merely to clip the
wings of an accused who is involved in a criminal prosecution. It is
not intended for the purpose of keeping a man under detention
when under ordinary criminal law it may not be possible to resist
the issue of orders of bail, unless the material available is such as
would satisfy the requirements of the legal provisions authorizing
such detention. When a person is enlarged on bail by a
competent criminal court, great caution should be exercised in
scrutinizing the validity of an order of preventive detention
which is based on the very same charge which is to be tried by
the criminal court."
(Emphasis added)
8 (1984) 3 SCC 14 : 1984 SCC (Crl) 361
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WP No. 34790 of 2022
(b) In Banka Sneha Sheela v. State of Telangana9, the
Hon'ble Supreme Court has held as under:
"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
detenu, 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. Consequently, it is unnecessary to
go into any of the other grounds argued by the learned counsel on
behalf of the petitioner. The impugned judgment is set aside and the
detenu is ordered to be freed forthwith. Accordingly, the appeal is
allowed."
17) One of the main objectives for passing the orders under the
Preventive Detention Act is to see that the detenu does not commit
crimes of similar nature in the near future.
(a) The relevant observations made by this Court in Vasnthu
Sumalatha (referred supra), are as under:
5. 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. Its basis is the satisfaction of the
Executive of a reasonable probability of the detenu acting in a manner
similar to his past acts, and preventing him by detention from so
doing. A criminal conviction on the other hand is for an act already
done, by a trial and legal evidence. There is no parallel as one is
punitive and the other preventive. In a criminal case a person is
punished on proof of his guilt and the standard is proof beyond
(2021) 9 SCC 415
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reasonable doubt. In preventive detention, a man is prevented from
doing something which it is necessary to prevent. ..... The order of
detention 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 (Haradhan Saha MNU/SC/0419/1974 : (1975) 3 SCC
198).
38. Exercise of the power of detention is made dependent on the
subjective satisfaction of the detaining authority that, with a view to
prevent a person from acting in a prejudicial manner as set out in the
provision, it is necessary to detain such person. The words "if
satisfied" in Section 3(1) of Act 1 of 1986 imports subjective
satisfaction on the part of the detaining authority before an order of
detention is made. The power of detention is clearly a preventive
measure. It does not partake the nature of punishment. It is taken
by way of precaution to prevent harm to the community. Since every
preventive measure is based on the principle that a person should be
prevented from doing something which, if left free and unfettered, it is
reasonably probable he would do, it must necessarily proceed in all
cases, to some extent, on suspicion or anticipation as distinct from
proof. (Khudiram Das MANU/SC/0423/1974 : (1975) 2 SCC 81).
(b) In Sama Aruna v. State of Telangana10, the Hon'ble
Supreme Court has held, at para 16, as under:
"16. Obviously, therefore, the power to detain, under the
1986 Act can be exercised only for preventing a person from engaging
in, or pursuing or taking some action which adversely affects or is
likely to affect adversely the maintenance of public order; or for
preventing him from making preparations for engaging in such
activities. There is little doubt that the conduct or activities of the
detenu in the past must be taken into account for coming to the
conclusion that he is going to engage in or make preparations for
engaging in such activities, for many such persons follow a pattern of
criminal activities. But the question is how far back? There is no
10 (2018) 12 SCC 150
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WP No. 34790 of 2022
doubt that only activities so far back can be considered as furnish a
cause for preventive detention in the present. That is, only those
activities so far back in the past which lead to the conclusion that he
is likely to engage in or prepare to engage in such activities in the
immediate future can be taken into account."
18) In this particular case, after the grant of bail by this Court in
crime No.1520 of 2022, the detenu was not involved in similar
offences. Therefore, there were no compelling reasons for the
Detaining Authority to pass the impugned detention order. The
respondents have absolutely failed to prove the nexus between the
impugned order and the crime No.55 of 2022 which was registered
in the month of February, 2022. Further, the respondents have
also not pointed out any similar offences involved by the detenu
between the date of registration of crime No.1520 of 2022 on
24.08.2022 and passing of the impugned detention order on
30.08.2022. That being so, the apprehension of the authorities
that the detenu may involve in similar offences is highly misplaced
and the said apprehensions cannot be the basis for passing the
detention order.
19) Admittedly, in this case, the detenu was granted bail by this
Court in crime No.55 of 2022 vide order dated 09.02.2022 passed
in Crl.P.No.1281 of 2022. In case, the detenu has violated any of
the terms or conditions of the bail, the authorities are always free
to seek cancellation of the bail granted to the detenu. In this
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WP No. 34790 of 2022
context, it is apt to note the following observations made by the
Hon'ble Supreme Court in Banka Sneha Sheela (referred
supra):
"15. ..... 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
detenu, there can be no doubt that the harm, danger or
alarm or feeling of insecurity among the general public
spoken of in Section 2(a) of the Telangana Preventive of
Dangerous Activities Act is make-believe and totally absent in
the facts of the present case."
20) Even though much stress has been laid by the learned
Special Government Pleader about the four sporadic incidents that
have taken place in twin cities of Hyderabad and Secunderabad
pursuant to the call given by the detenu herein, admittedly, the
very same four incidents were referred for passing detention order
dated 25.08.2022 against one T. Raja Singh, which is the subject
matter of W.P. No.34934 of 2022. Therefore, again the very same
incidents cannot be attributed to the detenu herein for passing the
impugned detention order.
21) Further, the interpretation of the Preventive Detention Act in
the judgment of the Hon'ble Supreme Court in Subramanian's
case (referred supra) relied on by the learned Special Government
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WP No. 34790 of 2022
Pleader has underwent a sea change in the subsequent judgments
of the Hon'ble Supreme Court in a catena of cases referred to
above.
22) For the afore-stated reasons and also the propositions of law
laid down in the judgments referred to above, the impugned
detention order cannot be sustained and is liable to be aside.
23) In the result, the Writ Petition is allowed. The impugned
detention order passed by respondent No.2 vide SB (1) No.158/PD-
7/HYD/2022, dated 30.08.2022, approved by respondent No.1
vide G.O.Rt.No.1683 General Administration (Spl. Law & Order)
Department, dated 02.09.2022 and confirmed by respondent No.1
vide G.O.Rt.No.1989 General Administration (Spl. {Law & Order})
Department, dated 21.10.2022, are hereby set aside. The
respondents are directed to set the detenu viz., Syed
AbdahuQuadri @ Kashaf at liberty forthwith, in case he is no
longer required in any other criminal case. However, we deem it fit
to impose the following conditions:
1) Except the immediate family members of the detenu
(numbering four), no other person shall be present inside
or outside the jail when the detenu is released;
2) The detenu shall not participate or hold any celebratory
rallies/meetings after his release;
3) The detenu shall not give any interviews to any kind of
media houses including the print media;
AAR, J & JS, J
WP No. 34790 of 2022
4) In future, the detenu shall not make any provocative
speeches against any religion or post any derogatory or
offensive posts on any social media platforms like
Facebook, Twitter, Whatsapp, Youtube, etc.
24) It is further made clear that the views and observations
made by this Court in the present order are only for the purpose of
effective adjudication of the validity of the impugned detention
order only. The criminal cases registered against the detenu and
pending adjudication before the Criminal Courts shall be dealt with
independently on their own merits without being influenced by any
of the observations made in the present order.
The miscellaneous petitions pending, if any, shall stand
closed. There shall be no order as to costs.
____________________
A.ABHISHEK REDDY, J
__________________
JUVVADI SRIDEVI, J
Date : 27-01-2023
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