Sri. Godishala Santhosh vs The State Of Telangana
2023 Latest Caselaw 3093 Tel

               HON'BLE SRI JUSTICE K. LAKSHMAN
                                   AND
                HON'BLE SMT. JUSTICE K. SUJANA

                 WRIT PETITION No.24082 OF 2023

ORDER: (Per Hon'ble Sri Justice K. Lakshman)

       Heard Mr. Pothamshetti Manoj Kumar, learned counsel for the

petitioner and Mr. V.T. Kalyan, learned counsel representing Mr. Gadi

Praveen Kumar, learned Deputy Solicitor General of India appearing

on behalf of respondent Nos.2 and 3.

2. This writ petition is filed to issue a writ of habeas corpus

directing the respondents to release the detenu viz.,, Mastyagiri

Keesari alias Naresh S/o Maraiah Keesari, now detained in Central

Prison, Cherlapalli, Medchal - Malkajgiri District, by setting aside the

order of detention passed by respondent No.2 vide proceedings

No.F.No.U-11011/27/2023-PITNDPS, dated 19.07.2023 declaring it

as illegal.

3. Respondent No.2 passed the detention order dated

19.07.2023 against the detenu under the provisions of Section - 3 (1)

of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic

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Substances Act, 1988 (as amended) (for short 'Act,1988) under the

category of 'illicit traffic' as defined in Section - 2 (e) .

4. The impugned detention order was passed by respondent

No.2 - detaining authority relying on the solitary crime viz.,

F.No.DRI/HZU/48D/ENQ-48(INT-39)/2022 of Directorate of

Revenue Intelligence (DRI), Hyderabad.

5. Mr. Pothamshetti Manoj Kumar, learned counsel for the

petitioner, would submit that the impugned detention order was issued

without application of mind. The detaining authority did not consider

the entire material properly and basing on solitary crime, the detention

order was passed which is illegal. As on the date of passing detention

order, the detenu continues in judicial custody and, therefore, the

apprehension of detaining authority that the detenu may commit

similar offences and his acts would disturb 'public order' is baseless.

i) He would further submit that the detenu never involved in

any other cases. He is doing private service and regularly transports

essential commodities. The detenu is arraigned as accused No.3 in the

aforesaid solitary crime, but respondent No.2 did not initiate any

proceedings against accused Nos.1, 2 and 4 to 8 under the provisions

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of the Act, 1988. Accused No.8 was already released on bail.

Without considering all the said aspects, respondent No.2 passed the

impugned order of detention which is illegal and, therefore, the same

is liable to be set aside.

6. On the other hand, Mr. V.T. Kalyan, learned counsel

representing learned Deputy Solicitor General of India appearing on

behalf of respondent Nos.2 and 3, would submit that the allegations

levelled against the detenu are serious and dangerous in nature and he

engaged in illicit trafficking of narcotics drugs and psychotropic

substances. To prevent him from doing so in future, respondent No.2

has passed the impugned order of detention. The detaining authority,

considering the entire material available on record and after arriving at

the subjective satisfaction only, passed the detention order in order to

prevent the detenu from committing similar offences. Thus, there is

no error in it.

7. Perusal of detention order as well as grounds of detention,

both dated 19.07.2023 passed by respondent No.2 would reveal that as

per the report of DRI, Hyderabad Zonal Unit, the detenu worked as

Production Chemist in various companies. With the said experience

and background, the detenu learnt the process of manufacturing

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mephedrone and Ephedrine and he offered the said expertise to others

for consideration and had also set up his own manufacturing unit of

mephedrone.

8. It is further mentioned in the grounds of detention that the

detenu and his associates were involved in the illicit manufacture and

sale of mephedrone, a psychotropic substance specified under NDPS

Act, 1985 in the premises at Plot No.6P, 7P, Chengicherla, Medipally

Mandal, Medchal - Malkajgiri District, Telangana State 500 047. The

Officers of DRI in the presence of independent witnesses searched the

aforesaid premises and seized a total 24.08 kgs. of off-white/cream

colour material in the form of lumps suspected to be 'mephedrone'

(valued at Rs.2.00 Crores per kg. in the illicit market), a psychotropic

substance specified under the NDPS Act, 1985 and 24.23 kgs.

material in powder form and 87.16 kgs. material in paste form,

respectively suspected to be semi-finished 'mephedrone'. The DRI

also seized machinery/equipment, raw materials/chemicals which are

meant for manufacture of mephedrone and a TVS Jupiter two-wheeler

with registration No.TS 13EV 7618 suspected to be used for delivery

of the said drug.

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9. During the investigation, the detenu confessed that he

supplied raw material required for the manufacture of mephedrone.

Pursuant to the said confession, the DRI Officials also searched the

residential premises of the detenu at H.No.1-118-7/3, 1st floor, Arya

Residency, Mallikarjuna Nagar, Boduppal, Medipally Mandal,

Telangana State in the presence of independent witnesses and seized a

cash of Rs.17,00,000/- of Indian currency, part received from

Mr.Santosh Singh (A-1) through hawala and part from sale proceeds

of narcotics substances manufactured/traded by the detenu.

10. The detenu in his voluntary statement made to the DRI

Officials on 21.12.2022 under Section - 67 of the NDPS Act, 1985

stated that he met one Mr. Brij Bhushan Pandey and Shashi Bhushan

Pandey in the Court premises in one murder case and instructed the

detenu to meet them in Mumbai. When the detenu met them in

Mumbai in the month of September, 2022, they informed him that

they wanted to manufacture mephedrone in Hyderabad and requested

the detenu to arrange raw materials for the same. Accordingly,

Accused No.1 paid certain amount for travelling expenses and also

gave a SIM Card for contacting him. After receiving indent from

Accused No.1, the detenu arranged the required raw material.

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11. Perusal of the record would further reveal that officials of

DRI seized the raw material and the premises, where the illicit acts are

going on and also incriminating documents in the presence of

independent witnesses and thereafter, the detenu and his associates

were arrested and they were sent to judicial remand on 22.12.2022.

The sample of seized contraband was sent to the Central Forensic

Science Laboratory, Directorate of Forensic Science Services,

Hyderabad, who in turn, vide its letter dated 14.03.2023, reported that

the mephedrone has been detected in the seized samples. After receipt

of the said report, the DRI Officials laid the charge sheet before the I

Additional District and Sessions Judge - cum - Metropolitan Sessions

Judge at Malkajgiri, for the offences punishable under Sections - 22,

23, 27-A, 28 and 29 of the Narcotics Drugs and Psychotropic

Substances Act, 1985, and the same was taken on file as S.C.NDPS

No.71 of 2023.

12. Perusal of the record would also reveal that the acts

committed by the detenu are serious and grave in nature. During

searches in the solitary crime, the DRI Officials seized 136.275 kgs. of

mephedrone from the premises where the detenu started his illegal

acts. Even cash of Rs.17,00,000/- was also seized and part of it

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received through hawala and remaining from sale proceeds of narcotic

substances manufactured/traded by the detenu. The bail applications

filed by the detenu were dismissed considering the seriousness and

graveness of the acts committed by him. The detenu has been in

judicial remand since 22.12.2022.

13. The detenu is a habitual offender and was involved in the

illicit trafficking of psychotropic substances and even successfully

brought the substances into the market without being apprehended

until the seizure of 136.27 kgs. of mephedrone and he set up an R&D

Unit with accused No.1. The detenu was a mastermind by financing

and arranging the equipment and raw materials in setting up factory

for manufacture of psychotropic substances. He himself set up a

separate mephedrone manufacturing unit in Uppal, Hyderabad.

Considering all the said aspects, the detaining authority arrived at the

conclusion that the acts of detenu would certainly disturb 'public

order' and accordingly passed the detention order. In view of the

same, the acts of the detenu come under the category of 'illicit traffic'

as defined under Section - 2 (e) of the Act, 1988.

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14. It is apt to refer to Section - 2 (e) of the Act, 1988 and the

same is as under:

"(e) "illicit traffic", in relation to narcotic drugs and psychotropic substances, means--

i) cultivating any coca plant or gathering any portion of coca plant;

ii) cultivating the opium poppy or any cannabis plant;

iii) engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter-State, export inter-State, import into India, export from India or transhipment, of narcotic drugs or psychotropic substances;

iv) dealing in any activities in narcotic drugs or psychotropic substances other than those provided in sub-clauses (i) to

(iii); or

v) handling or letting any premises for the carrying on of any of the activities referred to in sub-clauses (i) to (iv), other than those permitted under the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), or any rule or order made, or any condition of any licence, term or authorisation issued, thereunder and includes--

1) financing, directly or indirectly, any of the aforementioned activities;

2) abetting or conspiring in the furtherance of or in support of doing any of the aforementioned activities; and

3) harbouring persons engaged in any of the aforementioned activities;"

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15. While passing the detention order, the detaining authority

not only considered the modus operandi of the detenu in commission

of offences, but also considered the allegations levelled against the

detenu which are grave and serious in nature. Therefore, in order to

prevent the detenu from committing similar offences, the impugned

detention order was passed.

16. It is not in dispute that the detaining authority can pass

detention order relying on solitary crime. At the same time, the

detaining authority shall consider the nature of offence and the manner

in which it was committed. He has to consider the entire material on

record and come to a subjective satisfaction while issuing detention

order. The detaining authority shall consider distinction between 'law

and order' and 'public order' and disturbance to the public order due

to the acts committed by detenu. In the present case, the detaining

authority on consideration of entire material arrived at the subjective

satisfaction with regard to disturbance to 'public order' due to the acts

committed by the detenu.

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17. The Hon'ble Supreme Court in Ashok Kumar v. Delhi

Administration 1 observed that preventive detention is devised to

afford protection to society. The object is not to punish a man for

having done something but to intercept before he does it and to

prevent him from doing.

18. In Ram Manohar Lohia v. State of Bihar 2, the Apex

Court held as under:

"...Does the expression "public order" take in every kind of disorder or only some? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder.

When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The

. (1982) 2 SCC 403

. AIR 1966 SC 740

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contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances. 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 disorders 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 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."

19. In Banka Sneha Sheela v. State of Telangana 3, the Apex

Court held as under:

. (2021) 9 SCC 415

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"13. There can be no doubt that for 'public order' to be disturbed, there must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects 'law and order' but before it can be said to affect 'public order', it must affect the community or the public at large."

"24. 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."

20. The detaining authority also considered the modus operandi

adopted by the detenu in commission of offence. The detaining

authority while invoking the powers under Section - 3 (1) of the Act,

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1988, has to consider the entire material on record and come to a

subjective satisfaction that due to the acts committed by the detenu,

nature of offence and the manner in which the same was committed

would disturb the public order. To prevent the detenu from

committing similar offences, the detaining authority shall issue

preventive detention order against the detenu. The Apex Court and

this Court has to consider facts and circumstances of each case on case

to case basis.

21. As discussed above, the facts of the present case would

reveal that the detenu is a habitual offender and was involved in the

illicit manufacturing and trafficking of psychotropic substances

multiple times and had even successfully brought the substances into

the market without being apprehended till he was arrested in the

subject crime. Further, the detenu was always acts behind the scene

by financing and arranging the equipment and raw material in setting

up factory for the manufacture of psychotropic substances. The

detenu involved in commission of offences punishable under NDPS

Act, 1985 and the DRI Officials seized 136.275 kilograms of

mephedrone from the possession of the detenu and his associates.

Thus, the acts committed by the detenu are prejudicial activities of

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illicit traffic of narcotics and psychotropic substances, which poses

serious threat to the health and welfare of not only to the citizens of

this Country, but also to every citizen in the World, besides

deleterious effect on the National Economy. Therefore, the acts of

the detenu are interlinked and continuous in character and are of such

nature that the same affect security and health of the Nation.

22. Apart from the subject solitary crime, the detenu also

involved in Crime No.700 of 2017 registered by Kukatpally Police

Station, Cyberabad for the offences punishable under Sections - 147,

148, 364, 302, 201, 109, 114 and 120B read with 149 of IPC and

Section - 3 (2) (v) and 3 (2)(va) of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015.

In the said crime, the police after completion of investigation laid the

charge sheet and the same was numbered as S.C. 216 of 2021. The

detaining authority also referred to the said case in the impugned

detention order. The detenu herein is arraigned as accused No.3 in the

said S.C. The allegations levelled against him are that the deceased

therein i.e., Nerella Chandra Shekhar, who hails from 'SC-Mala'

Community is running a glass business under the name and style 'M/s.

Shekar Lab Glass works' at Prashanthnagar, Kukatpally. He also

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deals with drug raw material business and supplies to various

companies. He used to purchase raw materials from the accused

therein and supply the finished raw material to his customers

including one Sohail of Navi Mumbai.

23. As the DRI raided the drugs company of accused Nos.2, 4

and 5 at the premises of M/s. Impress Chemicals, 332, Sector-1,

Industrial Area, Pithampur District, Dhar, Madhya Pradesh and seized

white crystalline substances bags purported to be 'ephedrine' totally

weighing 192.910 kgs. valued at around Rs.38.60 Crores and sealed

the said premises and sent them to judicial remand in C.C. No.42 of

2016 of Directorate of Revenue Intelligence, Indore Regional Unit,

Indore, Madhya Pradesh, thereby resulted in a huge monetary loss for

seizure of narcotic drugs in a bulk. Therefore, accused Nos.4 and 5

therein strongly suspected the role of the deceased and Sohail of Navi

Mumbai behind the raid of Narcotic Control Bureau and bore grudge

against the deceased and said person. Accordingly determined to

eliminate them at any cost, for which accused Nos.2, 4 and 5 formed a

gang along with their associates i.e., the detenu herein (accused No.3

therein) and accused Nos.1 and 6 to 12, hatched a plan by offering a

big bounty to pay all the gang members. They all conspired together

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and abetted to kill the deceased and accordingly, killed the deceased

brutally and indiscriminately. Perusal of the said charge sheet would

also reveal that the detenu and his associates are all hard core

professional inter-state dacoits, drug mafia and criminal gang and also

having past criminal record of attacking police and escaping from

lawful police custody.

24. 'Mephedrone', a Psychotropic Substance, can cause various

unintended side effects including dilated pupils, poor concentration,

teeth grinding, problems focusing visually, poor short-term memory,

hallucinations, delusions and erratic behavior. Injecting the same is

dangerous and can lead to overdose or infections, and it can increase

chances of heart attack or stroke. Therefore, the said substance was

included under the NDPS Act, 1985. The commercial quantity for the

said drug is fixed at 50 grams, whereas in the present case, the DRI

Officials have seized huge quantity of 136.275 kgs. of mephedrone.

Considering the aforesaid past history of the detenu and also the

seriousness and graveness of the offence committed by the detenu in

the present solitary crime under NDPS Act, 1985, certainly, the acts of

the detenu in commission of the aforesaid offence disturb the 'public

order' and the same would pose serious threat to the health and

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welfare of the citizens of the Country. The bail applications filed by

the detenu were dismissed by the Designated Court considering the

gravity of the offence committed by him. The DRI Officials seized

huge quantity of 136.275 kgs. of mephedrone. The detaining

authority having considered all the said aspects arrived at the

subjective satisfaction and passed the impugned detention order.

Therefore, viewed from any angle, we are of the considered view that

there is no error in the impugned detention order dated 19.07.2023

passed by respondent No.2. Thus, the writ petition fails and the same

is liable to be dismissed.

25. The present writ petition is accordingly dismissed. In the

circumstances of the cases, there shall be no order as to costs.

As a sequel, the miscellaneous petitions, if any, pending in the

writ petition shall stand closed.

_________________ K. LAKSHMAN, J

_________________ K. SUJANA, J 12th October, 2023 Mgr