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2020 DIGILAW 756 (TS)

Shaik Shabbir v. State Of Telangana

2020-11-10

B.VIJAYSEN REDDY, RAGHVENDRA SINGH CHAUHAN

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JUDGMENT B. Vijaysen Reddy, J. - This writ of Habeas Corpus is filed challenging the detention order of Shaik @ Mohammed Saddam, S/o. Shabbir, dated 21.05.2020 passed by the Commissioner of Police, Warangal, in exercise of powers conferred under sub-section (2) of Section 3 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'), and as approved by the Government vide G.O.Rt.No.1158 dated 07.08.2020. 2. Heard Mr. Murtuza Ali Fauruqui, the learned counsel for the petitioner and Mr. T. Srikanth, the learned Government Pleader for Home for the respondents. 3. The learned counsel for the petitioner submits that the detenu was falsely implicated in a solitary offence registered in Cr.No.219 of 2019 under Section 8 (c) r/w 20 (b) (ii) (B) of the NDPS Act and Section 25(1)(a) of the Arms Act on the file of the Hasanparthy Police Station. The bail petition filed by the detenu was dismissed at the first instance by the I Additional District and Sessions Judge, Warangal. Thereafter, though the detenu was granted bail by the High Court in CRLP.No.842 of 2020 on 18.05.2020 and before the order was executed, the detaining authority issued the detention order on 21.05.2020 and executed it, while the detenu was still in remand under NDPS Act since 02.11.2019, which is arbitrary and illegal. Since the detenu was granted conditional bail, there cannot be any apprehension that he will commit similar offences. As such, there was no basis for the detaining authority to come to the conclusion that there is likelihood of detenu indulging in similar offences. Moreover, no cogent reasons are given before recording satisfaction for passing the detention order. 4. On the other hand, the learned Government Pleader submits that the detenu and his associates were found peddling 'Dry Ganja'. On 02.11.2019, on the basis of reliable information that some persons were transporting 'dry' ganja', the Sub-Inspector of Police, Hasanparthy Police Station along with staff, mediators and the Tahsildar reached Yellapur Village near railway flyover bridge and started checking the vehicles passing on the road. On 02.11.2019, on the basis of reliable information that some persons were transporting 'dry' ganja', the Sub-Inspector of Police, Hasanparthy Police Station along with staff, mediators and the Tahsildar reached Yellapur Village near railway flyover bridge and started checking the vehicles passing on the road. During the search, they noticed Toyota Innova and Hyundai Verna Cars coming from Hanmakonda side and on seeing the police, the persons in the said vehicles got down and started running. The SI and the staff chased and apprehended them. On enquiry, the detenu and his associates disclosed their identity and confessed that they have been peddling 'dry ganja'. The detenu and his associates have been purchasing 'dry ganja' from an unknown person at Visakhapatnam at Rs.2,000/- per Kg and selling the same to prospective customers at Rs.15,000/- per Kg. They also confessed that they were carrying button knives within an intention to attack if anyone stops them while transporting 'dry ganja'. After taking consent of the detenu and his associate, the Tahsildar with the assistance of the police checked the Toyota car and found 51 packets containing dry ganja (each packet weighing 4 Kgs.) under the seat and dickey of the said car and 56 packets of dry ganja (each weighing 2 Kgs.) from the Hyundai Verna car. The police also seized two button knives and one MI company cell phone and Samsung mobile from the detenu and his associate. The detenu and his associate were remanded to judicial custody. The contraband seized from the detenu and his associate was sent for chemical analysis and it was found to be Ganja, a Narcotic Drug. Though bail application filed by the detenu was dismissed by the Court below, he was granted bail by the High Court. Since there is imminent possibility of the detenu indulging in similar prejudicial activities after being released on bail and considering the ill-effects of Ganja on the society and the fact that the activities of the detenu are detrimental to public order and cause widespread danger to the public health within the meaning of explanation under Section 2(a) of the Act, the detention order was passed. 5. SOLITARY OFFENCE - PREVENTIVE DETENTION: The issue whether the detention order can be passed on the basis of solitary offence is no more res integra. 5. SOLITARY OFFENCE - PREVENTIVE DETENTION: The issue whether the detention order can be passed on the basis of solitary offence is no more res integra. However, even if the detenu is involved in a solitary offence and it is found that the prejudicial activity of the detenu has the propensity and potential to disturb the peace and tranquility in a locality or within the community thereby disturbing the public order, then the order of preventive detention needs to be sustained. No hard and fast rule can be laid down as to nature of the prejudicial activities and the effect such activities will have on public order. Whether the activities of the detenu would affect public order or not has to be tested in the background of such prejudicial activities in each case. 6. In the STATE OF TAMIL NADU AND OTHER v. NABILA AND ANOTHER, (2015) 12 SCC 127 the Hon'ble Apex Court while dealing with the issue as to whether the solitary offence can be the basis for passing the detention order, relied on its earlier judgment in the UNION OF INDIA v. CHAYA GHOSHAL, (2005) 10 SCC 97 and observed in para 13 as follows: "13. In the instant case, as noticed above, the High Court quashed the order of detention mainly on the ground that the detenu was in remand in connection with the solitary ground case when there was no material before the detaining authority to show that either the detenu himself or his relatives are taking steps to file application for bail in the solitary ground case. In our opinion, the view taken by the High Court while passing the impugned order cannot be sustained in law. This point was considered by this Court in the case of UNION OF INDIA v. CHHAYA GHOSAL,2004 10 SCC 97 and observed:- "23. So far as the finding of the High Court that there was only one incident is really a conclusion based on erroneous premises. It is not the number of acts which determine the question as to whether detention is warranted. It is the impact of the act, the factual position as highlighted goes to show that the financial consequences were enormous and ran into crores of rupees, as alleged by the detaining authority. The High Court seems to have been swayed away that there was only one incident and none after release on bail. It is the impact of the act, the factual position as highlighted goes to show that the financial consequences were enormous and ran into crores of rupees, as alleged by the detaining authority. The High Court seems to have been swayed away that there was only one incident and none after release on bail. The approach was not certainly correct and the judgment on that score also is vulnerable. At the cost of repetition it may be said that it is not the number of acts which is material, it is the impact and effect of the act which is determinative. The High Court's conclusions in this regard are therefore not sustainable." 7. XXX XXX XXX 8. As seen from the record, the detenu was granted conditional bail by the High Court in CRLP.No.842 of 2020 on 18.05.2020 and the detention order was passed on 21.05.2020 while the detenu was still in judicial custody under the NDPS Act. As compared to the provisions of Cr.P.C, the provisions of NDPS Act are stringent. If conviction is recorded under Section 20(b)(ii)(c) of the Act, even for grant of bail under Section 37 of the NDPS Act, there is strict mechanism provided under the NDPS Act. The concerned Court can grant bail only if the accused/detenu is not, prima facie, found involved in the crime. In SAYED ABUL ALA v. UNION OF INDIA, (2007) 15 SCC 208 the Supreme Court held as under: 19. An application for bail is required to be filed and considered by the appropriate Court in terms of Section 439 of the Code of Criminal Procedure but in cases involving the provisions of the NDPS Act, the detaining authority was required to take into consideration the restrictions imposed on the power of the court to grant bail having regard to the provisions of Section 37 thereof. 20. Section 37 reads as under: "37. 20. Section 37 reads as under: "37. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974) -- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for [offences under Section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless -- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail." The statute, thus, puts limitation on the jurisdiction of the court in the matter of grant of bail. They cannot be ignored by any Court of Law. Several decisions of this Court and of High Court operate in the field. 21. Proper application of mind on the part of the detaining authority must, therefore, be borne out from the order of detention. In cases where the detenu is in custody, the detaining authority not only should be aware of the said fact but there should be some material on record to justify that he may be released on bail having regard to the restriction imposed on the power of the Court as it may not arrive at the conclusion that there existed reasonable grounds for believing that he was not guilty of such offence and that the detenu could not indulge in similar activity, if set at liberty. 22. The detaining authority furthermore is required to borne in mind that there exists a distinction between the "likelihood of his moving an application for bail" and "likelihood to be released on bail". While arriving at his subjective satisfaction that there is likelihood of the detenu being released on bail, recording of the satisfaction on the part of the detaining authority that merely because an application for grant of bail had been filed, would not be enough. It would also not be sufficient compliance of the legal obligation that the detaining authority had informed himself that the detenu has retracted from his earlier confession. It would also not be sufficient compliance of the legal obligation that the detaining authority had informed himself that the detenu has retracted from his earlier confession. The detaining authority without examining the provisions of the NDPS Act, more specifically Section 37 of the NDPS Act, passed the detention order. Thus, the detention order suffers from non-application of mind and is liable to be set aside. The writ petition is allowed. The impugned detention order dated 21.05.2020 and the confirmation order dated 07.08.2020 are hereby set aside. The respondents are directed to set the detenu, namely Shaik @ Mohammed Saddam, S/o. Shabbir, at liberty forthwith, in case he is no longer detained in the criminal cases which have been registered so far against him. As a sequel, the miscellaneous petitions, pending if any, shall stand closed. There shall be no order as to costs.