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2020 DIGILAW 465 (TS)

Siraj Hamza v. State of Telangana

2020-06-11

B.VIJAYSEN REDDY, R.S.CHAUHAN

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JUDGMENT : B. VIJAYSEN REDDY, J. 1. This writ of habeas corpus is filed challenging the order of detention of Hassan Hamza, S/o Siraj Hamza, dated 16.11.2019, passed by the Commissioner of Police and Additional District Magistrate (Executive), Hyderabad City and approved by the Government vide G.O.Rt. No. 129 dated 17.1.2020, treating him as ‘Dacoit’ under clause (c) of Section 2 of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide 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 ‘the Act’). 2. Two cases registered in the year 2013 were taken as antecedent criminal history but were not relied upon. Only one case is considered as ground for detention as shown below: Cr. No. 49 of 2019 under Sections 395, 324, 341, 120(b) read with 149 IPC of Kamatipura Police Station. The detenu was arrested on 24.6.2019. The detenu moved two bail applications and was released on bail. It is vaguely stated by the detaining authority that the detenu has violated the bail conditions and it is apprehended that there is imminent possibility of the detenu committing similar offences, unless he is prevented from doing so by an appropriate order of detention. 3. Heard Mr. Md. Faseehuddin Soheb, the learned Counsel for the petitioner and Mr. S. Sharath Kumar, the learned Special Government Pleader for the respondents. 4. The learned Counsel for the petitioner submits that there is no proximity and nexus between the referred cases and the case considered as ground of detention. The alleged activities of the detenu do not come under public order. The bails granted to the detenu are conditional bails and his movements are subject to surveillance of the police. 5. On the other hand, the learned Special Government Pleader submits that the detenu is a leader/member of a criminal gang and has indulged in grave offences such as dacoity in an organized manner in the police station limits of Hyderabad Police Commissionerate. The detenu created large scale fear and panic among the people, thereby, affecting the public order apart from disturbing the peace and tranquility in the area. The involvement of the detenu in Cr. The detenu created large scale fear and panic among the people, thereby, affecting the public order apart from disturbing the peace and tranquility in the area. The involvement of the detenu in Cr. No. 49 of 2019 on the file of the Kamatipura Police Station would prove his activities to be prejudicial to the maintenance of public order. The detaining authority has considered the material placed before it including the bail petitions and orders and was satisfied that the activities of the detenu were prejudicial to the maintenance of public order. The cases registered against the detenu under ordinary law may not have deterrent effect in curbing his prejudicial activities and having felt that the detenu was not amenable to ordinary law to prevent him from further indulging in criminal activities, the detention order was passed in larger public interest duly following the provisions of the Act and Constitutional safeguards as contemplated under Article 22 of the Constitution of India. 6. It is asserted in the counter filed by the respondent No. 2 that the detenu has violated the bail conditions and the police filed applications seeking cancellation of bail before the Metropolitan Sessions Judge, Hyderabad on 15.10.2019 in SR. No. 11115 of 2019. It is not stated as to why the bail cancellation application was not pressed. The State cannot be permitted to take an easy route of invoking preventive detention laws without availing the appropriate remedies available under the provisions of Cr.P.C. The High Court of Judicature for the State of Telangana and the State of Andhra Pradesh in C. Neela vs. State of Telangna, 2017 (2) ALD (Crl.) 760 held as under: “...The State cannot find an easy way out by choosing to invoke the draconian provisions of preventive detention laws against every criminal as a substitute for his prosecution. As discussed supra, the Supreme Court has drawn a clear distinction between disturbance to public order on one side and disturbance to law and order on the other and held that only in the former case the State is permitted to invoke the powers under the preventive detention laws.” 7. If it was the case of the prosecution that the detenu violated the bail conditions, then immediate steps should not only be taken for filing an application for cancellation of bail but also for pressing that application. If it was the case of the prosecution that the detenu violated the bail conditions, then immediate steps should not only be taken for filing an application for cancellation of bail but also for pressing that application. The detaining authority has to give sound and cogent reasons for passing the detention order and record a finding that ordinary law would not yield results in dealing with the detenu and preventive detention order is necessary to be passed. Preventive detention laws cannot be invoked in a routine and mechanical manner and subjective satisfaction should be based on material on record and there should be such circumstances which make the detaining authority believe that except passing detention order there is no other alternative to keep the so-called activities of the detenu under control. In C. Neela's Case (supra) it was held as under: 11. Preventive detention of a person is an extreme measure resorted to by the State when ordinary criminal law is found not adequate to control his activities which cause disturbance to public order. Article 21 of the Constitution of India ordains that no citizen shall be deprived of his life or personal liberty except according to the procedure established by law. Under ordinary criminal laws, several safeguards are available to him such as, his arrest only in connection with cognizable/non-bailable offences and permitting him to apply for bail etc. The preventive detention laws have been conceived in order to control the activities of a person which tend to disturb public order as opposed to law and order and the procedural safeguards prescribed by the ordinary criminal laws are not available to the detenu under preventive detention laws. 8. The previous crimes are said to have been committed in the year 2013. The instant one, solitary crime, referred as ground case, is registered in the year 2019 [See Debu Mahato vs. State of West Bengal, (1974) 4 SCC 135 ]. There is a gap of six years between the previous cases and the present crime registered in the year 2019. Thus, there is no nexus between them and it cannot be said that there is possibility of detenu committing similar offences in future. The erstwhile High Court of Andhra Pradesh in S. Jayamma vs. Collector and District Magistrate, Cuddapah, 2004 (3) ALD 458 (FB): 13. Thus, there is no nexus between them and it cannot be said that there is possibility of detenu committing similar offences in future. The erstwhile High Court of Andhra Pradesh in S. Jayamma vs. Collector and District Magistrate, Cuddapah, 2004 (3) ALD 458 (FB): 13. The issue required to be adjudicated is whether the reference in the detention orders regarding the past conduct of the detenu for the purpose of arriving the propensity of criminal acts of the detenue would vitiate the detention Order. The Judgments are clear on this aspect, which are referred to above. The relevancy and proximity of time are sine qua non for successfully sustaining the order of detention. No hard and fast rule can be fixed and each case has to be decided on its own merits. The Supreme Court considered gap of sixteen months between the offending acts and the detention order and set aside the order of detention holding that the order of detention was based on stale incidents. Therefore, the proximity in time should provide a rational nexus between the incident relied on and the satisfaction arrived at while there is no prohibition to consider the past events, at the same time, there should be continuous link of events coupled with proximity of time. Under these circumstances only the order of detention would be immune from attack. Accordingly, we answer the reference as follows: While there is no specific bar for the detaining authority to refer to the past events, but at the same time such events should have a close and continuous link and proximity so as to provide a rational nexus between the incidents relied on and the satisfaction arrived at. 9. The right to life and personal liberty guaranteed under Article 21 of the Constitution of India is a precious right, which cannot be deprived to any citizen unless there are certain extraordinary circumstances. An accused, who is involved in a criminal case, has every right to apply for bail. Grant and dismissal of bail depends upon various factors. The Court below granted conditional bail and as stated in the counter affidavit, since the bail conditions are violated, the application for cancellation of bail was filed in S.R. No. 11115 of 2019 before the Metropolitan Sessions Judge, Hyderabad on 15.10.2019. Grant and dismissal of bail depends upon various factors. The Court below granted conditional bail and as stated in the counter affidavit, since the bail conditions are violated, the application for cancellation of bail was filed in S.R. No. 11115 of 2019 before the Metropolitan Sessions Judge, Hyderabad on 15.10.2019. However, the detaining authority, by vaguely stating that the bail conditions are violated, did not apply its mind as to which conditions of bail are violated and as to how such violation would necessitate invoking provisions of the Act for the purpose of passing detention order. The preventive detention law has to be invoked as a last resort but not as an easy way out. The detaining authority not only has to satisfy itself that there is an element of public order and release of detenu would be detrimental and prejudicial to such public order but also has to satisfy itself that in spite of detenu being dealt with under ordinary law, there is no change in his behaviour and that he is habitually indulging in criminal activities but curiously no such findings are given in the detention order. 10. In view of the above, the impugned detention order is liable to be set aside and accordingly set aside. 11. The writ petition is allowed. The impugned detention order dated 16.11.2019 passed by the respondent No. 2 and the consequential confirmation order dated 17.01.2020 are, hereby, set aside. The respondents are directed to set the detenu, namely Hassan Hamza, S/o. Siraj Hamza, at liberty forthwith, in case he is no longer detained in the criminal cases which have been registered so far against him. 12. As a sequel, the miscellaneous petitions, pending if any, shall stand closed. There shall be no order as to costs.