M.Kiran Kumar vs The State Of Telangana
2023 Latest Caselaw 3095 Tel

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

               WRIT PETITION No.28680 of 2023

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

      Heard Smt. B. Mohana Reddy, learned counsel for the petitioner

and Sri Mujib Kumar Sadasivuni, learned Special Government Pleader

representing learned Additional Advocate General appearing for the

respondents. Perused the record.

2. This Writ Petition is filed to direct the respondents to produce Sri

Poreddy Thirupathi Reddy S/o. Keshava Reddy, now detained at

Central Prison, Cherlapalli, Medchal District, before this Court and he

may be ordered to be released forthwith/set at liberty after declaring his

detention vide C.No.150/PDC/KNR/2023, dated 19.08.2023 passed by

the 2nd respondent and the consequential confirmation order passed by

the 1st respondent vide G.O.Rt.No.1357 dated 29.09.2023 as illegal.

3. The impugned detention order dated 19.08.2023 was passed by

respondent No.2 relying on solitary crime i.e., Crime No.70 of 2023

pending on the file of P.S.Veenavanka, Karimnagar Police

Commissionerate. The offences alleged against the detenu herein are

under Sections 8(c) r/w 20 (b) (II) (B) of NDPS Act, 1985. The

allegation leveled against the detenu herein is that he has supplied 1000

grams of dry 'Ganja' to accused Nos.1 and 2. Detenu herein is accused

No.3 and the said Ganja is recovered from accused Nos.1 and 2.

4. Thus, relying on aforesaid solitary crime, respondent No.2 has

issued impugned detention order. There is no dispute that detention

order can be passed 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. The Detaining Authority shall come to a

subjective satisfaction while issuing the impugned detention order with

regard to disturbance caused to the public order. In the present case,

there is no consideration of the aforesaid aspects by the respondent

No.2/Detaining Authority while issuing the impugned detention order.

In fact, 1000 grams of dry 'Ganja' is not a commercial quantity. The

only allegation against the detenu herein is that he has supplied the

same to accused Nos.1 and 2 and the same was recovered from the

accused Nos.1 and 2.

5. In the impugned detention order, there is specific mention about

six (06) cases and Detaining Authority referred the same but not relied

upon.

6. Sri Mujib Kumar Sadasivuni, learned Special Government

Pleader fairly submits that Commissioner of Police,

Ramagundam/Detaining Authority therein has invoked Act 1 of 1986

and issued detention order dated 29.11.2019 relying on aforesaid six

(06) cases. The same was under challenge in W.P.No.2375 of 2020 and

this Court vide order dated 05.03.2020 set aside the said order.

Therefore, respondent No.2/Detaining Authority cannot even refer the

aforesaid six (06) cases in the impugned detention order. The aforesaid

facts would reveal that the respondent No.2/Detaining Authority has

issued the impugned detention order without considering the entire

material on record and without application of mind. There is no

subjective satisfaction while issuing the impugned detention order.

7. In Mallada K. Sri Ram v. The State of Telangana 1, the Apex

Court held that 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". Referring to the principle laid down by it in Ram

Manohar Lohia v. State of Bihar and Banka Sneha Sheela v. State

of Telangana, the distinction between a disturbance to law and order

and a disturbance to public order was discussed.

. 2022 SCC OnLine SC 424

8. It was observed by the Apex Court that for the last five years, the

Apex Court has quashed over five detention orders under the Telangana

Act of 1986 for inter alia incorrectly applying the standard for

maintenance of public order and relying on stale materials while

passing the orders of detention. At least ten detention orders under the

Telangana Act of 1986 have been set aside by the Apex Court in the

last one year itself. These numbers evince a callous exercise of the

exceptional power of preventive detention by the detaining authorities

and the respondent - State. Therefore, the Apex Court directed the

respondents therein to take stock of challenges to detention orders

pending before the Advisory Board, High Court and the Apex Court

and evaluate the fairness of the detention order against lawful

standards.

9. In Ameena Begum v. The State of Telangana & Others 2, the

Apex Court held that "we could have ended our judgment here, but

having regard to the arguments advanced at the Bar we wish to deal

with the other issues too. This, we are persuaded to do, in order to

remind the authorities in the State of Telangana that the drastic

provisions of the Act are not to be invoked at the drop of a hat."

SLP (CRIMINAL) NO.8510 of 2023

10. This Court and Apex Court, time and again, categorically held

that detention orders can be passed in rarest of rare cases, that too, to

prevent the detenu from committing similar offences. In the present

case, the detaining authority has issued impugned detention order

without considering the aforesaid aspects.

11. In the light of the aforesaid discussion, according to this Court,

impugned detention order dated 19.08.2023 is illegal. It is liable to be

set aside and accordingly it is set aside.

12. Therefore, this writ petition is allowed and the detention order

vide proceedings No.C.No.150/PDC/KNR/2023 dated 19.08.2023

passed by respondent No.2 is set aside. The respondents are directed to

set the detenu viz., Mr. Poreddy Thirupathi Reddy S/o Keshava Reddy,

free, if he is no longer required in any other criminal case.

13. The Apex Court in Mallada K. Sri Ram v. The State of

Telangana, Ameena Begum v. The State of Telangana & Others and

also this Court in Sk.Nafeesa v. The State of Telangana & Others 3

categorically held that respondents are invoking Act 1 of 1986 without

application of mind, without consideration of entire material on record

W.P.Nos.8486 & batch decided on 14.06.2023

and also without coming to the subjective satisfaction as to the alleged

acts committed by detenu are disturbing the public order. The Apex

Court also warned the respondents herein. Even then, without

application of mind, respondent No.2 has issued impugned detention

order. Therefore, respondent No.2 is warned not to repeat such acts.

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

October 12, 2023 SSY

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

W.P.No.28680 of 2023 (Order of a Division Bench delivered by Hon'ble Sri Justice K. Lakshman)

October 12, 2023 SSY