Bodasu Sridivya, vs The State Of Telangana,
2023 Latest Caselaw 2108 Tel

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

            WRIT PETITION No.24896 of 2023

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

     Heard Sri Pasham Trivikram Reddy, learned counsel for the

petitioner and Sri G.Mallesham, learned Assistant Government

Pleader representing learned Additional Advocate General

appearing for the respondents. Perused the record.

2. The impugned detention order dated 28.07.2023 was passed

by respondent No.2 relying on solitary crime i.e., Crime No.289 of

2023 registered against the detenu for the alleged offences

punishable under Sections 8(c) r/w 20 (b) (II) (B) and Section 27

of NDPS Act, 1985 by Police, Kushaiguda Police Station,

Medchal Malkajgiri District. The allegation leveled against the

detenu is that he has possessed 20 grams of 'Methamphetamine

Drug' illegally. He was arrested on 05.03.2023. The bail

application filed by him was dismissed on 27.06.2023.

3. In the impugned detention order, though there is specific

mention about Crime No.95 of 2022 for the offence under Section

20 (B) (II) of NDPS Act, 1985, it was not relied upon. The

allegation leveled against the detenu is that he has possessed 500

grams of 'Ganja' illegally. The said quantity is not a commercial

quantity.

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. In the present case, there is no

consideration of the said aspects by the respondent No.2/Detaining

Authority while issuing the impugned detention order.

5. 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

. 2022 SCC OnLine SC 424

Sneha Sheela v. State of Telangana, the distinction between a

disturbance to law and order and a disturbance to public order was

discussed.

6. 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.

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

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

SLP (CRIMINAL) NO.8510 of 2023

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."

8. 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.

9. In the light of the aforesaid discussion, according to this

Court, impugned detention order dated 28.07.2023 is illegal. It is

liable to be set aside and accordingly it is set aside.

10. Therefore, this writ petition is allowed and the

detention order vide proceedings No.35/PD-CELL/RCKD/2023

dated 28.07.2023 passed by respondent No.2 is set aside. The

respondents are directed to release the detenu viz.,

Mr. Varikuppula Rithwik Raj S/o V.Anand on production of copy

of the bail order in crime No.289 of 2023 on the file of PS

Kushaiguda. 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

September 08, 2023 SSY

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

W.P.No.24896 of 2023 (Order of a Division Bench delivered by Hon'ble Sri Justice K. Lakshman)

September 08, 2023 SSY