Telangana High Court

Rampuri Vaishali vs The State Of Telangana on 17 October, 2024

Author: P.Sam Koshy

Bench: P.Sam Koshy, N.Tukaramji

              THE HON'BLE SRI JUSTICE P.SAM KOSHY
                                            AND
              THE HON'BLE SRI JUSTICE N.TUKARAMJI

                     WRIT PETITION No.21653 of 2024

ORDER:

(per the Hon'ble Sri Justice P.SAM KOSHY)

Heard Mr. Ch. Ravinder learned counsel for the petitioner and

Mr. Swaroop Oorilla, learned Special Government Pleader,

representing learned Additional Advocate General, for the

respondents.

2. The instant is a writ petition which has been filed by the

petitioner under Article 226 of the Constitution of India challenging

the Order of Detention dated 12.06.2024 (Annexure P-1) passed by

respondent No.2 putting the detenue, viz., Smt.Kalapathi Nithu Bai,

W/o.Kalapathi Munnu Singh, under preventive detention under Sub-

Section (2) of Section 3 of the "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 ::2:: PSK,J & NTR,J wp_21653_2024

Offenders and White Collar or Financial Offenders Act, 1986 (for short,

'the Act of 1986').

3. The writ petition is one which has been filed seeking for issuance

of a Writ in the nature of Habeas Corpus with a prayer for production

of the detenue before the Court and also for quashment of the

aforementioned orders.

4. Brief facts of the case is that detenue has committed an offence

under Telangana Prevention of Dangerous Activities Act, 1986 across

various Police Station limits but the police authorities had detained

the detenue on 12.06.2024 under multiple cases during the period

between the year 2023 and 2024, where the detenue was involved in

NDPS act and engaged in illegal and highly dangerous activities of

peddling Contraband Cannabis/Ganja among the innocent which was

registered within the jurisdiction of Cyberabad Police Commissionerate

indicating a pattern of persistent and organized drug trafficking. The

authorities have expressed grave concern over the impact of detenue's

actions endangering the lives of people especially, IT employees, youth,

college students and causing irreparable damages to their central

nervous system and thereby crippling the mental and physical health

of the people. Initially, the detenue was arrested on 25.10.2023 in

Cr.No.1258 of 2023 for the offences under Section 20 (b) (ii) (B) of ::3:: PSK,J & NTR,J wp_21653_2024

NDPS Act and Section 34 (A) TS Excise Act. Despite being granted

conditional bail by the Trial Court on 21.11.2023 in connection with

Crime No.1258/2023 of Gachibowli P.S., she continued to engage in

similar illegal activities leading to her involvement in three more cases

under NDPS Act within a short span. These include Cr.No.127 of

2023 at Kollur Police station in which she was served a notice;

Cr.No.324 of 2024 at Gachibowli Police Station resulting in her arrest

on 13.03.2024; and again she was arrested in Cr.No.101 of 2024 at

Moinabad Police Station on 03.05.2024. Despite facing multiple bail

cancellations, rejections and pending adjudications the detenue

allegedly continued in involvement in drug peddling activities which

clearly demonstrate a disregard for legal consequences and made a

ground for passing detention order. Thus, the impugned order was

under challenge on the ground that the alleged crimes fall under the

purview of ordinary law and do not constitute disturbance of public

order, and also questioning the necessity and legality of the detention

order under the Telangana Prevention of Dangerous Activities Act.

5. Learned counsel for the petitioner further contended that a plain

reading of the impugned order would reveal that the detention order

against the detenue is unconstitutional and illegal. The four (04)

criminal cases used as grounds for detention are based on weak

evidence where two (02) cases relied solely on confessional statements ::4:: PSK,J & NTR,J wp_21653_2024

of the other accused without any direct evidence of involvement by the

detenue in drug related offences.

6. Learned counsel for the petitioner further contended that there

was neither recovery of Ganja from the detenue nor any evidence of

her selling or transporting the substance. Furthermore, he contended

that in two of the cases where bail was denied, the detenue was

already in judicial custody at the time of detention order. Therefore,

this makes it impossible for the detenue to commit similar offences

thus negating the very basis of preventive detention order.

7. Learned counsel for the petitioner further contended that the

advisory body failed to properly consider the case, and acted

mechanically without thoroughly examining the merits. This,

according to the petitioner violates the Supreme Court's guidelines on

the active role played by the Advisory Board, as established in the case

of Nenavath Bujji Vs. State of Telangana 1. He further contended

that the Advisory Board should have expressed its opinion if the

detention was against the spirit of the Act or in contravention of the

law as laid down by the court. Additionally, the detaining authority

allegedly failed to consider the conditional bail granted in two cases,

which already placed the detenue under police surveillance making

2024 SCC Online 367 ::5:: PSK,J & NTR,J wp_21653_2024

preventive detention unnecessary. Similarly, learned counsel for the

petitioner relied on a decision of the Division Bench of this Court in

the case of Pappu Babu Mogre vs. The State of Telangana 2 wherein

the learned Division Bench of this Court allowed the petition on

similar grounds. He further contended that the respondent No.2 did

not follow the mandatory procedure before invoking the provisions of

sub-section (2) of Section 3 of Act of 1986 rendering the detention

order liable to set aside.

8. Lastly, learned counsel for the petitioner contended that labeling

the detenue as a 'Drug Offender' without a court verdict is unjust. He

further contended that the detenue is not a 'Goonda' as defined under

Section 2(g) of the Act of 1986 and detenue is neither a member nor

leader of a gang nor does she habitually commit or attempt to commit

offence. Therefore, invoking Sub-section 2 of Section 3 of the Act of

1986 is deemed to be illegal and arbitrary. Thus, the impugned order

of preventive detention is liable to be set-aside and the detenue be set

free.

9. Per contra, the learned Special Government Pleader appearing on

behalf of the respondents, contended that the detenue has been

repeatedly involved in drug related offences despite previous arrests

Writ Petition No.9538 of 2021, dated 17.09.2021 (Division Bench) ::6:: PSK,J & NTR,J wp_21653_2024

and legal action. Therefore, the detenue's continuous engagement in

illegal activities, particularly peddling of Ganja, shows a pattern of

behavior that poses an ongoing threat to public order and health.

Moreover, there are multiple cases registered against the detenue

including, (a) Cr. No. 1258/2023 at Gachibowli Police Station, (b)

Cr.No.127/2023 at Kollur Police Station, (c) Cr. No. 101/2024 at

Moinabad Police Station, and (d) Cr. No. 324/2024 at Gachibowli

Police Station. All these cases illustrate the detenue's persistent

involvement in drug trafficking even after being granting bail with

specific conditions makes a significant threat to society. The

behaviour of detenue's repeated involvement in the above crimes

forced the authorities to take extraordinary measures in order to

protect public health, maintain social order and particularly safeguard

vulnerable populations, especially youth and students from the

harmful effects of drug abuse and its associated criminal activities.

10. He further submitted that the legal processes have proven

ineffective in deterring the detenue from committing similar offences.

Despite the detenue facing multiple charges, she had consistently

involved in drug peddling which shows that the conventional judicial

measures are insufficient to prevent her from engaging in dangerous

activities. However, the detenue has violated bail conditions set by

this High Court which includes requirement to appear before the ::7:: PSK,J & NTR,J wp_21653_2024

police regularly and refrain from similar offences. He further

contended that even after bail was denied or cancelled in one case, the

detenue would seek bail in other cases or appeal to higher courts, and

this pattern of behavior on the part of the detenue demonstrates

exploitation of legal loopholes to continue in criminal activities, and

therefore contended that in order to maintain public order and health,

the removal of detenue from the society for significant period is

crucial.

11. It would be relevant at this juncture to refer to a recent decision

of this Court in Writ Petition No.12085 of 2024 decided on 09.07.2024

wherein this Court dealing with similar situation had referred to a

catena of decisions of the Hon'ble Supreme Court i.e. in Mallada K Sri

Ram vs. The State of Telangana and Ors. 3, NenavathBujji Etc. vs.

The State of Telangana and Ors. 4, Shaik Nazeen vs. State of

Telangana 5, Ram Manohar Lohia vs. State of Bihar 6, Kanu Biswas

vs. State of West Bengal 7, Khaja Bilal Ahmed vs. State of

Telangana 8and Ameena Begum vs. The State of Telangana 9 and

had held as under, viz.,

(2023) 13 SCC 537

2024 SCC Online SC 367

(2023) 9 SCC 633

1965 SCC Online SC 9

(1972) 3 SCC 831

(2020) 13 SCC 632

(2023) 9 SCC 587 ::8:: PSK,J & NTR,J wp_21653_2024

"Under the given legal dictum in a series of decisions of the Hon'ble Supreme Court referred to in the preceding paragraphs, we have no hesitation in reaching to the conclusion that in the instant case also only because the detenu has been charged with similar type of offences in an around sixteen cases in a span of around three years by itself cannot be said to be actions which can be brought under the purview of the detention "acting in any manner prejudicial to the maintenance of the public order". All these specific cases for which he has been charged are cases which are otherwise subjected to trial for the offences punishable under the provisions of Indian Penal Code and cannot be generalized and brought within the purview of public order."

12. Keeping in view the aforesaid statutory provisions, particularly

the Act of 1986 and the details which are reproduced in the preceding

paragraphs, we may now refer to a recent decision of the Hon'ble

Supreme Court in the case of Nenavath Bujji (supra), wherein the

Hon'ble Supreme Court at paragraph Nos.23, 24 and 25, dealing with

the explanation attached to Section 2(a), held as under:

"23. The explanation attached to Section 2(a) of the Act 1986 reproduced above contemplates that 'public order' shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely, inter alia if any of the activities of any person referred to in Section 2(a) directly or indirectly, are causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health. The Explanation to Section 2(a) also provides that for the purpose of Section 2, a person shall be deemed to be ::9:: PSK,J & NTR,J wp_21653_2024

"acting in any manner prejudicial to the maintenance of public order" when such person is a "GOONDA" and engaged in activities which affect adversely or are likely to affect adversely the maintenance of public order. It, therefore, becomes necessary to determine whether besides the person being a "GOONDA" his alleged activities are such which adversely affected the public order or are likely to affect the maintenance of public order.

24. 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. The basis of detention is the satisfaction of the executive about the likelihood of the detenu acting in a manner, similar to his past acts, which is likely to affect adversely the maintenance of public order and, thereby prevent him, by an order of detention, from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between the prosecution in a Court of law and a detention order under the Act 1986. One is a punitive action and the other is a preventive act. In one case a person is punished on proof of his guilt, and the standard is proof beyond the reasonable doubt, whereas in the other a person is detained with a view to prevent him from doing such act(s) as may be specified in the Act authorizing preventive detention.

25. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention, may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after ::10:: PSK,J & NTR,J wp_21653_2024

discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution. (See :HaradhanSaha v. The State of W.B., 1974 Cri LJ 1479]"

13. Again in paragraph No.32, the Hon'ble Supreme Court has in

great detail dealt with the expression law and order and public order

and held as under:

"32. The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression 'law and order' is wider in scope inasmuch as contravention of law always affects order, 'Public order' has a narrower ambit, and could be affected by only such contravention, which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of 'law and order' and 'public order' is one of degree and extent of the reach, of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only. In other words, the true distinction between the areas of law and order and public order lies not merely in the nature or quality of the act, but in the degree and extent of its reach upon society. Acts similar in nature, but committed in different contexts and circumstances, might cause different reactions. In one case it might affect specific individuals only, and therefore touches the problem of law and order only, while in another it might affect public order. The act by itself, therefore, is not determinant of its own gravity. In its quality it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very ::11:: PSK,J & NTR,J wp_21653_2024

different. [See: Union of India v. Amrit Lal Manchanda, (2004) 3 SCC 75.]"

14. In yet another land mark decision in Ameena Begum vs. The

State of Telangana, a judgment which has been pronounced under

the same provision of law, the Hon'ble Supreme Court held at

paragraph Nos.34 to 37 as under:

"34. In KusoSah vs. The State of Bihar, Hon'ble Y.V. Chandrachud, J. (as the Chief Justice then was) speaking for the Bench held that:

"4.*** The two concepts have well defined contours, it being well established that stray and un-organised crimes of theft and assault are not matters of public order since they do not tend to affect the even flow of public life. Infractions of law are bound in some measure to lead to disorder but every infraction of law does not necessarily result in public disorder. ***

6. *** The power to detain a person without the safeguard of a court trial is too drastic to permit a lenient construction and therefore Courts must be astute to ensure that the detaining authority does not transgress the limitations subject to which alone the power can be exercised. ***"

(underlining ours, for emphasis)

35. Turning our attention to section 3(1) of the Act, the Government has to arrive at a subjective satisfaction that a goonda (as in the present case) has to be detained, in order to prevent him from acting in a manner prejudicial to the maintenance of public order. Therefore, we first direct ourselves to the examination of what constitutes 'public order'. Even within the provisions of the Act, the term "public order" has, strictosensu, been defined in narrow and restricted terms. An order of detention under section 3(1) of the Act ::12:: PSK,J & NTR,J wp_21653_2024

can only be issued against a detenu to prevent him "from acting in any manner prejudicial to the maintenance of public order". "Public order" is defined in the Explanation to section 2(a) of the Act as encompassing situations that cause "harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave wide-spread danger to life or public health".

36. Ram Manohar Lohia (supra) is an authority to rely upon for the proposition that if liberty of an individual can be invaded under statutory rules by the simple process of making of a certain order, he can be so deprived only if the order is in consonance with the said rule. Strict compliance with the letter of the rule, in such a case, has to be the essence of the matter since the statute has the potentiality to interfere with the personal liberty of an individual and a Court is precluded from going behind its face. Though circumstances may make it necessary for ordering a detention without trial, but it would be perfectly legitimate to require strict observance of the rules in such cases. If there is any doubt whether the rules have been strictly observed, that doubt must be resolved in favour of the detenu.

37. Rekha too (supra) provides a useful guide. It is said in paragraph 30 that:

"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 of selling expired drugs after changing their labels. Surely the relevant provisions in the 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."

                                     ::13::                      PSK,J & NTR,J
                                                               wp_21653_2024

15. Having heard the contentions put forth on either side and on

perusal of record, this court finds that the detention order issued

lacks substantial justification as the same is arbitrary in nature. This

Bench opines that the impugned detention order passed by the 2nd

respondent appears to be based primarily on pending case and rather

conclusive evidence of guilt. This approach potentially undermines

the fundamental principle of "innocent until proven guilty" that

underpins the judicial system. The detenue has been implicated in

multiple cases (Cr. No. 1258/2023, Cr. No. 127/2023, Cr. No.

324/2024, and Cr. No. 101/2024) across different police stations in

which she has not been convicted in any of these cases. This court

observes that the detention order seems to treat these pending cases

as evidence of guilty which is an issue from a legal standpoint.

Moreover, the detention order is based on violation of previously

granted bail orders, but it is important to highlight that bail

cancellation petitions are still pending in some cases. This

demonstrates that the appropriate legal mechanism to address

violation of bail orders are already in motion within the regular

criminal justice system, therefore, the impugned order of detention

appears to be premature and possibly unnecessary.

16. This court further observed that assumption of future criminal

conduct which can be considered speculative and potentially infringes ::14:: PSK,J & NTR,J wp_21653_2024

upon the detenue's constitutional right. The impugned detention

order appears to be preventive in nature based on the possibility of

future offences which violates the detenue's right to liberty as

guaranteed by Article 21 of the Constitution. The authorities

concerned about the impact of drug peddling on public health and

order, particularly its effect on youth and college students, is

understandable. However, the link between the detenue's alleged

activities and broader societal issues like increased crime rates and

public health problems seems to be based on general assumptions

rather than specific evidence directly connecting her to these wider

issues. Furthermore, the detention order mentions that "Free

movement of an offender like her is not safe to the society," but this

statement appears to prejudge her guilt and overlooks the fact that the

detenue has not been convicted of the alleged offences. The

speculation about the detenue future actions and their potential

impact on society, while a matter of concern, may not meet the high

threshold required for preventive detention, especially when

alternative legal measures are available.

17. This court acknowledges that the use of preventive detention in

this case could be seen as an overreach of executive power, while the

intention may be to protect public health and order such broad ::15:: PSK,J & NTR,J wp_21653_2024

application of preventive detention laws for drug offences could open

door to potential abuse the executive power rather circumvent the

regular judicial process. This, not only threatens individual liberty,

but also risks eroding public trust in the fairness and impartiality of

the legal system.

18. Hence, we are of the considered opinion that the reasoning given

by authority concerned while passing the impugned order of

preventive detention is not justifiable or satisfactory and thus becomes

difficult to uphold the same. As a consequence, the impugned order

dated 12.06.2024 is liable to be and is accordingly set-aside/quashed.