Telangana High Court

Aenkarla Varalaxmi vs The State Of Telangana on 31 October, 2023

Bench: K.Lakshman, K. Sujana

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

                WRIT PETITION No.24886 OF 2023

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

      Heard Mrs. Ravula Sowmya Reddy, learned counsel for the

petitioner and Mr. Godugu Mallesham, learned Assistant Government

Pleader representing learned Additional Advocate General appearing

on behalf of the respondents.

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

directing respondent No.3 to produce detenu viz.,, Kallem Srinu, now

detained in Central Prison, Cherlapally, Medchal - Malkajgiri District,

by setting aside the order of detention passed by respondent No.2 vide

proceedings No.34/PD CELL/RCKD/2023, dated 22.07.2023 and the

consequential confirmation order, if any, declaring it as illegal.

3. Respondent No.2 had passed the impugned detention order

dated 22.07.2023 against the detenu under the provisions of Section -

3 (2) of the Telangana Prevention of Dangerous Activities of Boot-

leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic

Offenders Land-Grabbers, Spurious Seed Offenders, Insecticide

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Offenders, Fertilizer 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 (Amendment Act

No.13 of 2018) (for short 'Act No.1 of 1986') under the category of

'Goonda' as defined under Section - 2 (g) of the Act No.1 of 1986.

4. The impugned detention order was passed by respondent

No.2 - detaining authority relying on the following two (02) crimes:

i) Crime No.85 of 2023, registered by the Valigonda Police

Station for the offences punishable under Sections - 307,

324, 354, 323, 290 and 506 read with 34 of IPC and

Section - 25 (1B) (b) of the Arms Act, 1959; and

ii) Crime No.97 of 2023 was registered by the very same

police station for the offences punishable under Sections

- 143, 509, 354, 427 and 29 read with 149 IPC.

5. Mrs. Ravula Sowmya Reddy, learned counsel for the

petitioner, would submit that the impugned detention order was issued

without application of mind. The offences alleged against the detenu

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in the aforesaid crimes are in respect of IPC and the Arms Act which

pertains to 'law and order' only and they do not disturb the 'public

order'. In such an event, the impugned detention order cannot be

passed. The detaining authority did not come to a subjective

satisfaction while passing impugned detention order. The detaining

authority did not consider the entire material properly including the

role played by the detenu in the alleged crimes. The allegations

levelled against the detenu will not fall under the category of

'goonda'. Even then, basing on the aforesaid crimes, 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 the detaining authority that the detenu may commit

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

Without considering all the said aspects, respondent No.2 had 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. G. Mallesham, learned Assistant

Government Pleader representing learned Additional Advocate

General appearing on behalf of the respondents would submit that the

allegations levelled against the detenu are serious and dangerous in

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nature. 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 dated 22.07.2023, grounds of

detention, counter filed by respondent No.2 and the record would

reveal that the detenu along with his own brother, Kallem Naresh,

who is ex-convict and having criminal history in Valigonda Police

Station, has been indulging in Rowdyism and attacking his opponents

with deadly weapons. Despite a rowdy sheet maintained at Valigonda

Police Station against him for keeping surveillance over his activities,

he could not mend his attitude and continued to indulge in similar

prejudicial activities. The detenu was arrested several times,

remanded to judicial custody facing trial.

8. During the years 2017 and 2021, the detenu was detained

twice under the Act No.1 of 1986 as a 'goonda' by the Commissioner

of Police, Rachakonda. The detenu completed full period of 12

months pursuant to the first detention order and released on

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07.07.2018. The detention order issued in the year 2021 was

challenged, and vide order dated 12.07.2021 in W.P.No.12331 of

2021, the same was set aside.

9. In Crime No.85 of 2023, the allegations levelled against him

are that on 27.03.2023 at about 1500 hours when the complainant, her

husband and sons were on the way to Gokaram village, en-route the

detenu and his two associates intercepted them, entered into

altercation by questioning about their presence and among them, the

detenu attacked on her husband with a knife and also the remaining

two persons attacked her son with sticks and bet with hands

indiscriminately by falling him to the ground. When the complainant

interfered to pacify them, the detenu also attacked on her with knife,

and as a result, she received stabbing injuries on her hand and

contusions on her upper part of eye. In the said scuffle, her husband

and son also received stabbing injuries. The complainant apprehended

life danger in the hands of the detenu and his associates.

i) During investigation, the police seized one knife of 2½ inches

handle length and 4½ inches sharp edge length.

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ii) In the said crime, first and second bail applications were

dismissed. However, third bail application was allowed granting

conditional bail. The police filed an application seeking cancellation

of bail granted to the detenu.

iii) On completion of investigation, the Investigating Officer

had laid charge sheet against the detenu and others and the same was

numbered as C.C. No.181 of 2023.

10. Whereas, in Crime No.97 of 2023, the allegations levelled

against the detenu are that on 09.04.2023 at about 1600 hours, while

the complainant was in her furniture shop at Valigonda Town, the

detenu along with five others formed into unlawful assembly, came

there and started arguing with her husband threatening to settle the

property issue with Rapolu Poolamma, who is none other than co-

sister of the complainant and created big nuisance. The detenu abused

the complainant and her husband in most filthy language and

threatened to kill her husband if they do not settle the property issue

with her co-sister. The detenu pushed the complainant aside when she

tried to save her husband in the hands of detenu and damaged

furniture threby outraged her modesty. He also created nuisance in

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broad day light while the neighbours got panicked on seeing his

criminal activities.

i) In the said crime, the first bail application filed by the detenu

was dismissed. After completion of investigation, the police laid

charge sheet and the same was numbered as C.C. No.489 of 2023.

11. The aforesaid facts would reveal that the allegations

levelled against the detenu are serious and grave in nature. The

detenu used deadly weapon in commission of offence. Twice i.e.,

during the years 2017 and 2021, the Commissioner of Police,

Rachakonda Commissionerate, passed detention orders against the

detenu. Despite completing 12 months period of detention, there is no

change in the attitude of the detenu. A rowdy sheet was opened

against him and the same is being continued.

12. The detenu is an active rowdy sheeter and committing

bodily offences, such as attempt to murder, voluntarily causing hurt,

assaulting on general public and criminal intimidation in the limits of

Valigonda Police Station. He is also furious and grew wild on his

opponents and attacks on them with available weapons. He also

enters in land/property disputes in order to settle by threatening the

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general public on the point of deadly weapons for his pecuniary

benefits. He has committed the above two crimes during day time in

public place and the said acts definitely created panic in the minds of

the general public and disturbed the public order. Thus, the acts of the

detenu create large scale fear and panic among the general public and

adversely affect the public order, peace and tranquility in the area

rather than 'law and order' problem. Therefore, with a view to

prevent the detenu from acting in a manner prejudicial to the

maintenance of public order and considering all the aforesaid aspects,

the detaining authority arrived at the subjective satisfaction and passed

the detention order.

13. The object of the Act No.1 of 1986 is to provide for

preventive detention of Bootleggers, Dacoits etc. including 'goonda'.

Section - 2 (g) of the Act No.1 of 2018 defines "Goonda", which

means a person, who either by himself or as a member of or leader of

a gang, habitually commits, or attempts to commit or abets the

commission of offences punishable under Chapter XVI or Chapter

XVII or Chapter XXII of the IPC.

14. While passing the detention order, the detaining authority

not only considered the commission of offences committed by the

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detenu and his associates, but also considered its impact disturbing

'public order'. Therefore, in order to prevent the detenu from

committing similar offences, the impugned detention order was

passed.

15. It is not in dispute that the detaining authority shall

consider the nature of offence and the manner in which it was

committed. Authority has to consider the entire material on record

and come to a subjective satisfaction while issuing detention order.

The detaining authority has to draw a 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.

16. 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.

. (1982) 2 SCC 403

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17. 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 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

. AIR 1966 SC 740

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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."

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

Court held as under:

"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."

. (2021) 9 SCC 415

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"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."

19. It is the specific contention of the petitioner that the

impugned detention was passed when the detenu was in judicial

custody. Thus, it is illegal. In Rameshwar Shaw v. District

Magistrate, Burdwan 4, the Apex Court held that whether an order of

detention can be against a person who is already in detention or in jail,

will always have to be determined in the facts and circumstances of

. (1964) 4 SCR 921

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each case. Therefore, the said contention of the petitioner cannot be

accepted.

20. The detaining authority while invoking the powers under

Section - 3 (2) of the Act No.1 of 1986, has to consider the entire