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2017 DIGILAW 449 (AP)

Chandsi Sah v. State of Telangana

2017-07-25

C.V.NAGARJUNA REDDY, M.S.K.JAISWAL

body2017
ORDER : C.V.Nagarjuna Reddy, J. 1. The detention of three individuals (hereinafter referred as the detenus), who were allegedly working in tandem in commission of property offences, made under separate but identical orders is questioned in these Writ Petitions. 2. As the facts in all these three cases are identical, it will suffice if we refer to the facts in one case. Accordingly, we have chosen WP.No.46833 of 2016 for this purpose. 3. The detenus are accused in 12 property related offences. These Criminal Cases were registered by different Police Stations in the city of Hyderabad and some other places. The allegation against the detenus is that in the guise of polishing gold and silver articles in the limits of Hyderabad and Cyberabad Police Commissionerates, Adilabad and Nizamabad Districts of Telangana State and also in the State of Maharashtra, they had been indulging in a series of property offences, thereby, creating large scale fear among the public and affecting public order. The allegations on which all the 12 criminal cases have been registered reveal that the detenus had been deceiving the women folk by adopting a specific pattern. It is alleged that they undertake to polish gold and silver articles; that in that process, they divert the attention of the people by showing them brass and copper polished items and asking them to hand over their gold ornaments for polishing; that trusting them, when the gold ornaments are handed over to them, they ask the owner of the ornaments to bring a vessel with water for cleaning purpose; that when the vessel with water is brought, the detenus mix some colour in it, ask the owner of the ornaments to boil it and take out the ornaments after five minutes; that when the owner of the ornaments goes to the kitchen to boil the same, the detenus flee the scene with the gold ornaments. 4. Out of 12 criminal cases, the grounds of detention referred to 9 recent cases. The detention orders were passed on 23-11- 2016 and were served on the detenus on 26.11.2016. By the time of passing of the detention orders, the detenus obtained bail in one of the criminal cases on 12-09-2016 and in another Criminal Case, bail application is pending. Out of 12 criminal cases, the grounds of detention referred to 9 recent cases. The detention orders were passed on 23-11- 2016 and were served on the detenus on 26.11.2016. By the time of passing of the detention orders, the detenus obtained bail in one of the criminal cases on 12-09-2016 and in another Criminal Case, bail application is pending. While the advisory board scheduled its meeting on 02-01-2017 to consider the legality or otherwise of the detention orders, the petitioners filed these Writ Petitions on 30-12-2016. The detention orders were approved on 01-12-2016 and confirmed on 10-02-2017 after the advisory board rendered its advice on 02.01.2017. It has come to our notice during the hearing that before filing these Writ Petitions, the detenus have not submitted representations to the advisory board. 5. Smt.B.Mohana Reddy, learned Counsel for the detenus, advanced three submissions: (1) That failure of the detaining authority to give the detenus an opportunity of making representation against the detention orders before the same were approved vitiates the detention orders; (2) That the nature of offences registered against the detenus reveals that the charges, if proved, would only fall within the realm of law and order problem; that the same does not cause disturbance to public order; and that therefore, the detention orders are not sustainable in law; (3) That as on the date of passing of the detention orders, the detenus were in judicial custody; that even though bail was secured in one case, they could not furnish sureties; that as bails were not granted in 11 other Criminal Cases, there was no reasonable possibility of their coming out of the judicial custody; and that therefore, the satisfaction arrived at by the detaining authority is not based on objective criterion. 6. Opposing the above submissions, the learned Government Pleader submitted that the detaining authority has strictly complied with the provisions of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short the Act), besides the provisions of Article 22 of the Constitution of India; that on the facts of the case, the detenus could not avail the opportunity of making a representation to the detaining authority; and that the same by itself would not vitiate the detention orders. He has further argued that as a fact, while the detenus have raised a grievance that they were denied the opportunity of making a representation to the detaining authority, they have not even made a representation to the advisory board leave alone to the Government and waited till the advisory board gave its opinion before filing the Writ Petitions. This conduct of the detenus, argued by the learned Government Pleader, shows that they have raised this ground on a purely technical sense without suffering any prejudice. 7. In reply to the second submission, the learned Government Pleader submitted that the organized manner in which the detenus have been committing the crime and deceiving the women folk in the Society has the potential of disturbing public order and that therefore, the provisions of the Act were rightly invoked for their detention. 8. As regards the third submission of the learned Counsel for the petitioners, the learned Government Pleader submitted that a perusal of the detention orders shows that the detaining authority has shown its awareness to the fact of the judicial custody of the detenus and the possibility of their coming out of the judicial custody on bails; and that therefore, it cannot be said that the satisfaction of the detaining authority is not based on objective criteria. 9. We have given our earnest consideration to the submissions of the learned Counsel for both parties with reference to the record. 10. Taking the first submission of the learned Counsel for the petitioners in the first instance, though neither the provisions of Article 22 (5) of the Constitution of India nor of the Act specifically provide the remedy of making representation to the detaining authority, by the evolution of law, it has been firmly established that till the detention order is approved by the Government, detaining authority has not only the power but also the obligation to consider the representation against their detention. (See State of Maharashtra vs. Santosh Shankar Acharya, (2000) 7 SCC 463 and Harshala Santosh Patil vs. State of Maharashtra, (2006) 12 SCC 211 ) 12. It has been held by a catena of decisions that failure of the detaining authority to inform the detenu of his right to make a representation to it vitiates the detention order. The learned Counsel for the detenus admitted that the impugned detention orders indeed informed the detenus about such a right. It has been held by a catena of decisions that failure of the detaining authority to inform the detenu of his right to make a representation to it vitiates the detention order. The learned Counsel for the detenus admitted that the impugned detention orders indeed informed the detenus about such a right. But her submission is that as the detenus were not supplied with the material relied upon by the detaining authority in the language known to them and as such a material was supplied to them only on the date on which the Government has approved the detention orders, they were denied the opportunity of making a meaningful representation to the detaining authority and that therefore, the detention orders get vitiated. 13. Admittedly, Section 8 (1) of the Act enjoins upon the detaining authority to communicate to the detenu the grounds on which the detention order has been made within five days from the date of detention so as to afford him the earliest opportunity of making the representation against the order of the Government. The translated copies of the material in the language known to the detenus were admittedly supplied to them within the above stipulated time. However, by a sheer co-incidence, on the date on which this material was supplied to the detenus, the Government has approved the detention orders thereby, rendering the detaining authority functus officio and disabling it from considering the representations, if any, of the detenus. While, ordinarily, the detenus had three remedies viz., representation before the detaining authority, representation before the advisory board and representation before the Government, by the turn of the events in the present case, the first mentioned remedy was not available to them. Whether this by itself vitiates the detention orders is the question. Our answer to this question is an emphatic No. We have observed hereinbefore that the detaining authority has supplied the material to the detenus within the time stipulated by the statute. As the act of the Government according approval of the detention orders passed by it is not within the control of the detaining authority, he cannot be found fault with, if the detenus have lost an opportunity of making representation to him. The situation would have been different had the detaining authority not supplied the material within the stipulated time. As the act of the Government according approval of the detention orders passed by it is not within the control of the detaining authority, he cannot be found fault with, if the detenus have lost an opportunity of making representation to him. The situation would have been different had the detaining authority not supplied the material within the stipulated time. The detenus cannot, therefore, be allowed to take advantage of their losing an opportunity of making a representation to the detaining authority due to the circumstances beyond ones control. At any rate, no prejudice is caused to the detenus on losing of such opportunity as they have not availed even the other two available remedies viz., representation to the advisory board and representation to the Government. As noted herein before even before the meeting of the advisory board was scheduled to take place on 02-01-2017, these Writ Petitions have been filed on 30-12-2016 itself. Therefore, this plea raised by the detenus on the facts of the cases appears to be specious. In the absence of any violation of statutory provisions committed by the detaining authority, we cannot hold that the detention orders would get vitiated only because of the supervening circumstance of the Government approving the detention orders rendering the detaining authority functus officio. 14. With regard to the second submission of the learned Counsel for the detenus, the law is very clear as regards the distinction between disturbance to law and order and disturbance to public order. In Dr. Ram Manohar Lohia v. State Bihar, AIR 1966 SC 740 a Constitution Bench of the Supreme Court, speaking through M. Hidayatullah, J (as he then was), explained the difference between maintenance of law and order and maintenance of public order and its disturbance. The Court has further explained the whole concept of public order and law and order, by observing that one has to imagine three concentric circles wherein law and order represents the largest circle, within which is the next circle representing public order and the smallest circle represents security of State. The Court has pointed out the difference between the maintenance of law and order and public order. The distinction has been succinctly brought out by the coordinate Bench, headed by Hidayatullah, J, in Arun Ghosh v. State of West Bengal by giving examples in the judgment, the relevant portion of which is reproduced hereinbelow. 15. The Court has pointed out the difference between the maintenance of law and order and public order. The distinction has been succinctly brought out by the coordinate Bench, headed by Hidayatullah, J, in Arun Ghosh v. State of West Bengal by giving examples in the judgment, the relevant portion of which is reproduced hereinbelow. 15. Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act. Take another case of a town where there is communal tension. A man stabs a member of the other community. This is an act of a very different sort. Its implications are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large Sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Take the case of assault on girls. A guest at a hotel may kiss or make advances to half a dozen chamber maids. He may annoy them and also the management but he does not cause disturbance of public order. He may even have a fracas with the friends of one of the girls but even then it would be a case of breach of law and order only. Take another case of a man who molests women in lonely places. As a result of his activities girls going to colleges and schools are in constant danger and fear. Women going for their ordinary business are afraid of being waylaid and assaulted. The activity of this man in its essential quality is not different from the act of the other man but in its potentiality and in its affect upon the public tranquility there is a vast difference. The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order. He disturbs the society and the community. The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order. He disturbs the society and the community. His act makes all the women apprehensive of their honour and he can be said to be causing disturbance of public order and not merely committing individual actions which may be taken note of by the criminal prosecution agencies. It means therefore that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the breach of the act upon the society. The French distinguish law and order and public order by designating the latter as order publique. The latter expression has been recognised as meaning something more than ordinary maintenance of law and order. Justice Ramaswami in Writ Petition No. 179 of 1968 drew a line of demarcation between the serious and aggravated forms of breaches of public order which affect the community or endanger the public interest at large from minor breaches of peace which do not affect the public at large. He drew an analogy between public and private crimes. The analogy is useful but not to be pushed too far. A large number of acts directed against persons or individuals may total up into a breach of public order. In Dr. Ram Manohar Lohia's case examples were given by Sarkar, and Hidayatullah, JJ. They show how similar acts in different contexts affect differently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its affect upon the community. The question to ask is: Does it lead to disturbance of the current of life of the community so as to amount a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed? This question has to be faced in every case on facts. There is no formula by which one case can be distinguished from another. 16. In Arun Ghosh (2 supra), the Supreme Court has dealt with a case where the acts of the detenu affected the family of one Phanindra C. Das and two other individuals, who were assaulted. This question has to be faced in every case on facts. There is no formula by which one case can be distinguished from another. 16. In Arun Ghosh (2 supra), the Supreme Court has dealt with a case where the acts of the detenu affected the family of one Phanindra C. Das and two other individuals, who were assaulted. Their Lordships have distinguished the said case from another case where three instances of rioting armed with lathis, iron rods and acid bulbs etc., were held sufficient to disturb the even tempo of public life in that locality and were treated as disturbance of public order. The Court while referring to another case, which pertains to assault on four persons and throwing a cracker into a police wireless van, held that it did not add up to the disturbance of public order and that they were treated as separate acts, which affected individuals, but did not affect the community at large. It has further held that public order is the even tempo of the life of the community taking the country as a whole or even a specified locality; that disturbance of public order is to be distinguished from the acts directed against the individuals, which do not disturb the society to the extent of causing a general disturbance of public tranquility and that it is the degree of disturbance and its effect upon the life of the community in a locality, which determines whether the disturbance amounts only to a breach of law and order. 17. In Pushkar Mukherjee v. State of West Bengal, (1969) 1 SCC 10 the Supreme Court held that the difference between the concepts of 'public order' and 'law and order' is similar to the distinction between 'public' and 'private' crimes in the realm of criminal jurisprudence; that in considering the material elements of crime, the historic tests which each community applies are 'intrinsic wrongfulness' and social expediency which are the two most important factors which have led to the designation of certain conduct as criminal. That in his book Legal Duties; Dr. Allen has distinguished 'public' and 'private' crimes in the sense that some offences primarily injure specific persons and only secondarily the public interest, while others directly injure the public interest and affect individuals only remotely. 18. That in his book Legal Duties; Dr. Allen has distinguished 'public' and 'private' crimes in the sense that some offences primarily injure specific persons and only secondarily the public interest, while others directly injure the public interest and affect individuals only remotely. 18. In Haradhan Saha v. The State of West Bengal, (1975) 3 SCC 198 the Supreme Court has prescribed tests to determine whether the alleged acts affect 'law and order' or 'public order'. The Court held that it is the potentiality of the act to disturb the even tempo of life which makes it prejudicial to the maintenance of public order and that it is the degree and extent of each of the objectionable activity on the society which is vital for consideration. Considering the question whether a person has committed only breach of law and order or has acted in any manner likely to cause disturbance to public order, it was held that an order of detention under the Act would be valid if the activities of the detenu affect public order, but could not be so where the same affects only the maintenance of law and order and that the facts of each case have, therefore, to be carefully scrutinized to test the validity of the detention. 19. If we apply the legal position as discussed above to the facts of the present case, we have no doubt in our mind that the acts of the detenus have the potential of disturbing the even tempo of life which makes it prejudicial to the maintenance of public order because the alleged acts were not directed against a specific individual but the same were directed against the public at random. These acts would certainly create a fear psychosis in the minds of general public that there is a possibility of their being cheated. We have, therefore, no hesitation to hold that the acts of the detenus are such that they are not confined only to law and order but they disturb public order. 20. These acts would certainly create a fear psychosis in the minds of general public that there is a possibility of their being cheated. We have, therefore, no hesitation to hold that the acts of the detenus are such that they are not confined only to law and order but they disturb public order. 20. With respect to the third submission of the learned Counsel for the petitioner, the Constitution Bench of the Supreme Court in Haradhan Saha (4 supra) held as under: where the person concerned is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardize the security of the State or public order. 21. This ratio was followed in several subsequent judgments of the Supreme Courts (See Rajesh Gulati v. Govt. of NCT of Delhi, (2002) 7 SCC 129 , T.V. Sravanan v. State, (2006) 2 SCC 664 and A. Shanthi v. Government of T.N., (2006) 9 SCC 711 ). 22. In N. Meera Rani v. Government of Tamil Nadu, (1989) 4 SCC 418 a three-Judge Bench of the Supreme Court summarized the settled principles in this regard as under: We may summarise and reiterate the settled principle. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordinarily it is not needed when the detenu is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release. This appears to us to be the correct legal position. 23. In the impugned detention order, respondent No.2- detaining authority has observed as under: Whereas, it has been brought to my notice that the accused Ranjeeth Sah @ Ranjeeth @ Ranjeeth Gupta @ Aslam @ Bhikari, S/o Sahmbhoo Sah was arrested on 11.6.2016 in Cr.No.189/2016, U/s.420, 379 IPC of Amberpet PS and remanded to judicial custody. On interrogation, he voluntarily confessed to have committed (7) more offences. Details of bail petition moved by the accused: 1. He moved a bail petition in Cr.No.99/2016, U/s.420, 380 IPC of Sultan Bazar PS before the Honble Magistrate granted bail to him on 12.9.2016. But he continues to be in judicial custody as he has not furnished sureties. 2. He moved a bail petition in Cr.No.189/2016, U/s 420, 379 IPC of Amberpet PS before the Honble IV ACMM, Hyderabad vide Crl.M.P.No.2015/2016, dated 12.7.2016 and the same is pending for orders. Hence, he continues to be in judicial custody. As he moved a bail petitions in the above two cases, he may also move bail petitions in other cases in which he was remanded to judicial custody/his arrest was regularized through PT warrants and there is every likelihood of his release from judicial custody soon. On his release from judicial custody there is every likelihood of his indulging in similar prejudicial activities, which are detrimental to the public order, unless he is prevented from doing so by an appropriate order of detention. The above portion of the detention order would clearly reveal that respondent No.2 has shown his awareness to the fact of the detenus being in judicial custody, their securing bail in Crime No.99 of 2016 and also filing an application for bail in Crime No.189 of 2016. Respondent No.2 has, therefore, anticipated, and in our view rightly there is a likelihood of their release and soon after their release, there is every likelihood of the detenus indulging in similar prejudicial activities, which are detrimental to the public order. Therefore, we are unable to accept the submission of the learned Counsel for the petitioners that the detention orders are vitiated as respondent No.2 did not apply objective criteria in arriving at the satisfaction about the likelihood of the detenus coming out on bail. For the aforementioned reasons, we do not find any merits in these Writ Petitions and the same are, accordingly, dismissed. For the aforementioned reasons, we do not find any merits in these Writ Petitions and the same are, accordingly, dismissed. As a sequel to dismissal of the Writ Petitions, Miscellaneous Petitions, pending if any, stand disposed of as infructuous.