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2020 DIGILAW 754 (TS)

Gorre Laxmi v. State Of Telangana

2020-11-10

B.VIJAYSEN REDDY, RAGHVENDRA SINGH CHAUHAN

body2020
JUDGMENT B. Vijaysen Reddy, J. - The order of detention passed against Gorre Kannaiah, S/o. late Lingaiah, dated 01.12.2019, by the Commissioner of Police, Ramagundam and as confirmed by the State vide G.O.Rt.No.225 dated 27.01.2020, are challenged in this writ of Habeas Corpus as illegal and unconstitutional. The detention order was passed treating him as 'Goonda' under Section 2(g) 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. Heard Dr. B. Karthik Navayan, the learned counsel for the petitioner and Mr. T. Srikanth Reddy, the learned Government Pleader for Home appearing for the respondents. 3. The learned counsel for the petitioner submits that the impugned detention order suffers from non-application of mind, as the same was passed on stale ground and does not satisfy the proximity test. The detenu cannot read or write English but the respondent No.3 had served copies of the material in English. The alleged activities of the detenu do not come within the purview of public order and the detaining authority did not assign any reason for coming to such conclusion. The detention order is passed mechanically without looking into the facts of the case that ordinary law is sufficient to deal with the activities of the detenu and the satisfaction of the detaining authority that normal law may not be an effective deterrent is unfounded, unconstitutional and illegal. 4. On the other hand, the learned Government Pleader, while opposing the contentions of the learned counsel for the petitioner, asserted that the detenu engaged himself in unlawful acts and indulged in offences of burglaries in temples creating large scale fear and feeling of insecurity in the minds of the public, particularly, the devotees who visit the temple and the same are prejudicial to the maintenance of public order. The detaining authority having satisfied that such acts have the potential of disturbing the public order, passed the detention order with a view to prevent the detenu from further indulging in such prejudicial activities, in the larger public interest. The detaining authority having satisfied that such acts have the potential of disturbing the public order, passed the detention order with a view to prevent the detenu from further indulging in such prejudicial activities, in the larger public interest. The detenu answers the description of 'Goonda' as defined under Section 2(g) of the Act. 5. As seen from the detention order, the detaining authority referred to seven cases which cases are considered as ground cases for detention. The seven ground cases with relevant details as reflected in the detention order are shown as below: Sl. No. Crime No. and Date Police Station Offence Date of arrest Particulars of Bail 1. Cr.No.154 of 2019 Dt.2/3.08.19 CCC Naspur PS u/s 457 and 380 IPC 08.08.2019 in Cr.No.155 of 2019 No bail petition 2. Cr.No.155 of 2019 Dt.2/3.08.19 CCC Naspur PS u/s 457 and 380 IPC 08.08.2019 No bail petition 3. Cr.No.88 of 2019 Dt.02.08.19 Hajipur PS u/s 454 and 380 IPC 08.08.2019 in Cr.No.155 of 2019 No bail petition 4. Cr.No.123 of 2019 Dt.04.08.19 Ramakrishnapur PS u/s 457 and 380 IPC 08.08.2019 in Cr.No.155 of 2019 No bail petition 5. Cr.No.60 of 2019 Dt.01.05.19 Dharmaram PS u/s 457 and 380 IPC 08.08.2019 in Cr.No.155 of 2019 No bail petition 6. Cr.No.161 of 2019 Dt.02.08.19 Julapalli PS u/s 457 and 380 IPC 08.08.2019 in Cr.No.155 of 2019 No bail petition 7. Cr.No.169 of 2019 Dt.02.08.19 Dharmaram PS u/s 457 and 380 IPC 08.08.2019 in Cr.No.155 of 2019 No bail petition 6. The detenu was arrested in Cr.No.155 of 2019 on 08.08.2019 and remanded to judicial custody and subsequently, under PT warrants the detenu was arrested in other crimes. The detenu did not move bail petitions in any of the crimes. The detaining authority points out that there is apprehension of the detenu being released on statutory bail in due course, as the mandatory period of remand is completed and there is imminent possibility of the detenu indulging in similar offences unless the detenu is prevented from doing so by an appropriate order of detention. The detaining authority points out that there is apprehension of the detenu being released on statutory bail in due course, as the mandatory period of remand is completed and there is imminent possibility of the detenu indulging in similar offences unless the detenu is prevented from doing so by an appropriate order of detention. It is unwarranted for the detaining authority to pass the detention order on the premise that the detenu would be released on mandatory bail under Section 167(2) Cr.P.C. The State/Police should make all endeavours to file charge sheet within 60/90 days of remand, as the case may be, so as to prevent the accused from taking advantage of mandatory/default bail under Section 167(2) of Cr.P.C. But without doing so and without being vigilant of its duties and responsibilities, the State cannot be permitted to invoke provisions of preventive detention laws as an easy and alternate way method. 7. The personal liberty of an individual is a precious and prized human right. The framers of the Constitution have recognized and reinforced such human right of personal liberty, and made it part of fundamental right guaranteed under Article 21 of the Constitution of India. Personal liberty is not a gift which the State can feel it has bestowed on its citizens. Every citizen will be entitled to right to life and personal liberty under Article 21 of the Constitution of India unless he is deprived so by following due process of law. A citizen enjoys personal liberty not at the mercy of the State, but because the Constitution has bestowed on him such right. If detention order is to be passed for the mere reason the detenu would be entitled to mandatory bail, then it would be travesty of justice. The benefit of mandatory bail under Section 167(2) Cr.P.C. is available to an accused so as to ensure that he is not kept under prolonged custody. The period of 60/90 days, as the case may be, from the date of the remand of the accused, in the wisdom of law makers is found to be reasonable for filing charge-sheet, and in default the accused would be entitled to default/mandatory bail. The period of 60/90 days, as the case may be, from the date of the remand of the accused, in the wisdom of law makers is found to be reasonable for filing charge-sheet, and in default the accused would be entitled to default/mandatory bail. Such benefit of default/mandatory bail is in consonance with basic elements of justice and fair play and in pursuit of protection of personal liberty which has acquired the status of fundamental right guaranteed under Article 21 of the Constitution of India. 8. The importance of default bail vis--vis personal liberty has been exhaustively discussed in the authoritative pronouncement of the Hon'ble Supreme Court in RAKESH KUMAR PAUL v. STATE OF ASSAM, (2017) 15 SCC 67 . The historical importance of default bail under Section 167(2) Cr.P.C. whereby facility of statutory bail given to the accused, who is in custody for a period of 60/90 days, as the case may be, if the charge-sheet is not filed, has been exhaustively discussed. The intrinsic connection of default bail with personal liberty has been culled out by the Hon'ble Supreme Court in the said judgment. Some important observations in the judgment are extracted below: "Discussion from personal liberty perspective 28. We may also look at the entire issue not only from the narrow interpretational perspective but from the perspective of personal liberty. Ever since 1898, the legislative intent has been to conclude investigations within twenty-four hours. This intention has not changed for more than a century, as the marginal notes to Section 167 of the Cr.P.C. suggest. However, the Legislature has been pragmatic enough to appreciate that it is not always possible to complete investigations into an offence within twenty-four hours. Therefore initially, in the Cr.P.C. of 1898, a maximum period of 15 days was provided for completing the investigations. Unfortunately, this limit was being violated through the subterfuge of taking advantage of Section 344 of the Cr.P.C. of 1898. The misuse was recognized in the 41st Report of the Law Commission of India and consequently the Law Commission recommended fixing a maximum period of 60 days for completing investigations and that recommendation came to be enacted as the law in the Cr.P.C. of 1973. The misuse was recognized in the 41st Report of the Law Commission of India and consequently the Law Commission recommended fixing a maximum period of 60 days for completing investigations and that recommendation came to be enacted as the law in the Cr.P.C. of 1973. Subsequently, this period was also found to be insufficient for completing investigations into more serious offences and, as mentioned above, the period for completing investigations was bifurcated into 90 days for some offences and 60 days for the remaining offences. 29. Notwithstanding this, the basic legislative intent of completing investigations within twenty-four hours and also within an otherwise time-bound period remains unchanged, even though that period has been extended over the years. This is an indication that in addition to giving adequate time to complete investigations, the Legislature has also and always put a premium on personal liberty and has always felt that it would be unfair to an accused to remain in custody for a prolonged or indefinite period. It is for this reason and also to hold the investigating agency accountable that time limits have been laid down by the Legislature. There is a legislative appreciation of the fact that certain offences require more extensive and intensive investigations and, therefore, for those offences punishable with death or with imprisonment for life or a minimum sentence of imprisonment for a term not less than 10 years, a longer period is provided for completing investigations. 44. Strong words indeed. That being so we are of the clear opinion that adapting this principle, it would equally be the duty and responsibility of a court on coming to know that the accused person before it is entitled to 'default bail', to at least apprise him or her of the indefeasible right. A contrary view would diminish the respect for personal liberty, on which so much emphasis has been laid by this Court as is evidenced by the decisions mentioned above, and also adverted to in Nirala Yadav. (Emphasis added). 9. A contrary view would diminish the respect for personal liberty, on which so much emphasis has been laid by this Court as is evidenced by the decisions mentioned above, and also adverted to in Nirala Yadav. (Emphasis added). 9. The above judgment of the Hon'ble Supreme Court though is not related to preventive detention case, the importance of indefeasible right of default bail available to the accused who is in custody for a period of 60/90 days, as the case may be, after filing of charge-sheet has been reiterated keeping in view the basic human right of personal liberty, which is also part of fundamental right guaranteed under Article 21 of the Constitution of India. Such being the importance of default bail, which is indefeasible right to the person in custody, the same cannot be allowed to be curtailed in a casual manner unless there are some compelling reasons. 10. It would be opposed to all canons of justice if power of preventive detention is allowed to be resorted to in order to deprive the detenu of his statutory benefit available under Section 167(2) Cr.P.C. The benefit available under Section 167(2) Cr.P.C. cannot be taken away by resorting to draconian preventive laws. However, there cannot be any hard and fast rule laid down to say that a detention order cannot be passed under any circumstances when the detenu has the possibility of being released on default bail under Section 167(2) Cr.P.C. There should be some compelling reasons apart from the fact that the detenu/accused has the possibility of being released on default/mandatory bail. To be precise, mere possibility of detenu being released on default bail cannot be a sole circumstance to pass the detention order unless there are compelling reasons. The Hon'ble High Court of Delhi in SANJAY AGARWAL v. UNION OF INDIA AND OTHERS,2018 SCCONLINEDEL 10814 held at paras 35 to 40 as follows: "......With there being no bail application pending as such, the only reason for the apprehension of his release was the fact that the statutory period of 60 days after his arrest was coming to an end which meant that under Section 167 Cr.P.C, he would be entitled to a statutory bail. 36. The question, therefore, is whether that is a sufficient ground for invoking the extraordinary measure of preventive detention. In light of the decision in Rekha (supra), this question is no longer res integra. 36. The question, therefore, is whether that is a sufficient ground for invoking the extraordinary measure of preventive detention. In light of the decision in Rekha (supra), this question is no longer res integra. It was observed therein that preventive detention is not meant to be punitive and should only be used in exceptional cases and not as a substitute for the regular criminal law. 37. That the customs authorities were inefficient in ensuring that the challan against the detenue is filed in time, i.e. within 60 days after his arrest, will not mean that the power of preventive detention could be exercised. This would otherwise encourage an undesirable practice of the law enforcement agency allowing the detention of a detenue to continue till the statutory period under Section 167 Cr PC is set to expire, and then after failing to file a challan, mechanically invoke the power of preventive detention in the eleventh hour. 38. The Supreme Court in Moideen Koya (supra) has no doubt observed that a preventive detention order may be passed even against a person already in custody but as noted therein, the law in this regard has been explained in Rameshwar Shaw v. District Magistrate, (1964) AIR SC 334 as under: "As an abstract proposition of law, there may not be any doubt that Section 3(1) (a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail, but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail." 39. The Supreme Court in Moideen Koya (supra) also made reference to the decision in Vijay Kumar v. State of Jammu and Kashmir, (1982) 2 SCC 43 wherein it was observed: "If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State. Maybe, in a given case there yet may be the need to order preventive detention of a person already in jail. Maybe, in a given case there yet may be the need to order preventive detention of a person already in jail. But in such a situation the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made." 40. Therefore, it is incumbent upon the Respondents to make out the "compelling reasons" that necessitated a preventive detention order to be passed in respect of Mr. Sanjay Agarwal even though all his previous bail applications had been rejected and there was no pending bail application qua him. In the considered view of the Court, the imminent possibility of the detenu being entitled to statutory bail was not a "compelling" reason to invoke the extraordinary power of preventive detention. In another judgment of the Hon'ble High Court of Delhi in SHASHI GOYAL v. UOI & OTHERS, (2008) 101 DRJ 696 (DB) it was observed as under: 4. In the factual matrix of the present case we cannot over-emphasise the need to explain the necessity and the expediency of the preventive detention of the Detenu, keeping in mind that he had become entitled to statutory bail under Section 167(2) of the Cr.PC as a Challan had not been filed within sixty days of his arrest. There is a plethora of precedents to the effect that such detention cannot be clamped down in pique, only because the Detenu has been enlarged on bail by a competent Court. Indeed, it would sound the death-knell of the Fundamental Right of personal liberty if preventive detention can be resorted to simply because the State is unable to complete its investigation and present a Challan within the statutory period of sixty/ninety days as the case may be. Section 167(2) of the Cr. PC would be subverted. Wherever and whenever such action manifests itself, courts of law would stamp it out swiftly and completely. 11. An order of detention has to be resorted to as an extreme and last step only when attempts made by the authorities to deal with and prosecute the detenu under ordinary law do not yield results. The preventive detention laws cannot be invoked as an easy way of bypassing the ordinary law. 11. An order of detention has to be resorted to as an extreme and last step only when attempts made by the authorities to deal with and prosecute the detenu under ordinary law do not yield results. The preventive detention laws cannot be invoked as an easy way of bypassing the ordinary law. If detention order is passed, it is very imperative for the detaining authority to apply its mind and to arrive at a conclusion that ordinary law is not capable of acting deterrent against the detenu. The High Court of Judicature for the State of Telangana and the State of Andhra Pradesh in C. NEELA v. STATE OF TELANGNA, (2017) 2 ALD(Cri) 760 held as under: "...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." 12. Apart from that, there is also no proper conclusion arrived at by the detaining authority as to how public order is affected. There is a difference between law and order and public order. The offences i.e. burglaries/thefts are, allegedly, committed by the detenu in the temples during later hours when they are closed and thus it cannot be said that the activities of the detenu would have bearing on the peace and tranquility thereby affecting public order. There is a difference between law and order and public order. The offences i.e. burglaries/thefts are, allegedly, committed by the detenu in the temples during later hours when they are closed and thus it cannot be said that the activities of the detenu would have bearing on the peace and tranquility thereby affecting public order. It is held by the Supreme Court in ARUN GHOSH v. STATE OF WEST BENGAL, (1970) 1 SCC 98 as under: "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 reach 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 recognized as meaning something more than ordinary maintenance of law and order. In S.K. KEDAR v. STATE OF WEST BENGAL, (1972) 3 SCC 816 the Supreme Court held as under: The relevant criteria to distinguish in the abstract between acts prejudicial to maintenance of law and order and those which are prejudicial to maintenance of public order are laid down in a number of rulings of this Court (see Pushkar Mukherjee and others v. The State of West Bengal, (1969) 1 SCC 10 , Sudhir Kumar Saha V. Commisssioner Of Police, Calcutta, (1970) 1 SCC 149 and Nagendra Nath Mondal v. The State of West Bengal, (1972) 1 SCC 498 ). The question whether a person 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 one of degree and the extent of the reach of the act upon the society. An act by itself is not determinative of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. 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 effect upon the community. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. 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 effect upon the community. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. 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 the law and order. 13. In view of the above, the impugned detention order is liable to be set aside and accordingly set aside. The writ petition is allowed. The impugned detention order dated 01.12.2019 and the confirmation order dated 27.01.2020 are hereby set aside. The respondents are directed to set the detenu, namely Gorre Kannaiah, S/o. Lingaiah, at liberty forthwith, if he is no longer detained in judicial custody in the criminal cases, which have been so far registered against him. As a sequel, the miscellaneous petitions, pending if any, shall stand closed. There shall be no order as to costs.