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2021 DIGILAW 283 (TS)

Erukala Narsamma v. State of Telangana

2021-09-13

A.RAJASEKHAR REDDY, G.SRI DEVI

body2021
JUDGMENT : G. Sri Devi, J. 1. Smt. Erukala Narsamma, the petitioner, has filed this habeas corpus petition on behalf of her son, Sri Erukala Venkatesam @ Venkatesh S/o. Mogulaiah, the detenu, challenging the detention order vide Proceedings No. 23/PD-CELL/CYB/2021 dated 22.03.2021, passed by the 2nd respondent, and the consequential confirmation order passed by the 1st respondent vide G.O. Rt. No. 1138, dated 21.05.2021, whereby, the detenu was detained under Section 3(2) of the Telangana Preventive Detention Act, 1986 (Act 1 of 1986). 2. Heard Sri K. Venumadhav, learned Counsel for the petitioner, learned Assistant Government Pleader for Home appearing for the learned Additional Advocate General for the respondents and perused the record. 3. The case of the petitioner is that basing on two robbery offences viz., Crime No. 790/2020 of Dundigal Police Station and No. 812/2020 of Pet-Basheerbad Police Station, passed the impugned detention order, dated 22.03.2021. According to respondent No. 2, the detenu is a 'Goonda' as he has been habitually committing robberies by threatening with knife in an organized way to get easy money in the limits of Cyberabad Police Commissionerate, thus acting in a manner prejudicial to the maintenance of public order, apart from disturbing the peace and tranquility in the society. Subsequently, the impugned detention order was confirmed by the Government, vide G.O. Rt. No. 1138, dated 21.05.2021. 4. Learned Counsel for the petitioner would contend that the impugned detention order has been passed in a mechanical manner and without application of mind. Already criminal law was set into motion against the detenu. The detenue was released on conditional bails in the said two crimes referred to above. The apprehension of the detaining authority that after release on bail, the detenu would indulge in similar offences, unless he is prevented from doing so by an appropriate order of detention, is misconceived. The alleged crimes do not add upto "disturbing the public order" and they are confined within the ambit and scope of the word "law and order". Since the offences alleged are under the Indian Penal Code, the detenu can certainly be tried and convicted under the Penal Code. Thus, there was no need for the detaining authority to invoke the draconian preventive detention law against the detenu. Hence, the impugned orders tantamount to colourable exercise of power. The impugned orders are legally unsustainable and ultimately, prayed to allow the writ petition, as prayed for. Thus, there was no need for the detaining authority to invoke the draconian preventive detention law against the detenu. Hence, the impugned orders tantamount to colourable exercise of power. The impugned orders are legally unsustainable and ultimately, prayed to allow the writ petition, as prayed for. 5. On the other hand, the learned Assistant Government Pleader for Home appearing for the respondents filed counter supporting the impugned orders and submitted that the detenu is a 'Goonda'. He has been habitually committing robberies and thereby acting in a manner prejudicial to the maintenance of public order, apart from disturbing peace and tranquility in the society. Though the detenu was released on conditional bail, the apprehension of the detaining authority that there is every possibility of the detenu indulging in similar offences, is not misconceived. The series of crimes allegedly committed by the detenu were sufficient to cause a feeling of insecurity in the minds of the people at large. Since the modus of committing the crime was robbery, it has created sufficient panic in the minds of the general public. Therefore, the detaining authority was legally justified in passing the impugned detention order. Further, the Advisory Board rendered its opinion that there is sufficient cause for detention of the detenu and on considering the same alongwith the entire material, the Government confirmed the impugned detention order vide G.O. Rt. No. 1138, dated 21.05.2021. All the mandatory requirements were strictly followed by the detaining authority while passing the impugned detention order. The impugned orders are legally sustainable and ultimately, prayed to dismiss the writ petition. 6. In view of the submissions made by both the sides, the point that arises for determination in this writ petition is: "Whether the impugned detention order vide Proceedings No. 23/PD-CELL/CYB/2021 dated 22.03.2021, passed by the respondent No. 2, and the consequential confirmation order vide G.O. Rt. No. 1138, dated 21.05.2021, passed by the respondent No. 1, are liable to be set aside?" Point: 7. In catena of cases, the Hon'ble Supreme Court had clearly opined that there is a vast difference between "law and order" and "public order". The offences committed against a particular individual fall within the ambit of "law and order" and when the public at large is adversely affected by the criminal activities of a person, such activities of that person are said to disturb the public order. The offences committed against a particular individual fall within the ambit of "law and order" and when the public at large is adversely affected by the criminal activities of a person, such activities of that person are said to disturb the public order. Moreover, individual cases can be dealt with by the criminal justice system. Therefore, there is no need for the detaining authority to invoke the draconian preventive detention laws against an individual. Hence, according to the Hon'ble Apex Court, the detaining authority should be wary of invoking the immense power under the Act. 8. In Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740 , the Hon'ble Supreme Court has, in fact, deprecated the invoking of the preventive law in order to tackle a law and order problem. It was observed that every breach of public peace and every violation of law may create a 'law and order' problem, but does not necessarily create a problem of 'public order'. The distinction has to be borne in mind in view of what has been stated in the grounds of detention. 9. In Kanu Biswas v. State of West Bengal, (1972) 3 SCC 831 , the Hon'ble Apex Court, while discussing the meaning of word 'public order', held 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 extent of the reach of the act upon the Society. 10. In the present case, the detaining authority, basing on two crimes indicated above, has passed the impugned detention order, dated 22.03.2021. 11. As seen from the material placed on record, the crimes relied upon by the detaining authority for preventively detaining the detenu relate to robbery by threatening with knife in the limits of Cyberabad Police Commissionerate. The detenu was arrested in connection with the said crimes and subsequently, he was released on conditional bails. Under these circumstances, the satisfaction recorded by the detaining authority that there is every likelihood of the detenu indulging in similar offences, unless he is prevented from doing so by an appropriate order of detention, is highly misplaced. 12. The detenu was arrested in connection with the said crimes and subsequently, he was released on conditional bails. Under these circumstances, the satisfaction recorded by the detaining authority that there is every likelihood of the detenu indulging in similar offences, unless he is prevented from doing so by an appropriate order of detention, is highly misplaced. 12. Further, the conditional order of bail restricts the movement of the detenu and requires him to appear before the officer concerned periodically and the detenu would be under the surveillance of police and Court. If it is found that the detenu violated the bail conditions, the prosecution can apprise the same to the Court concerned and seek cancellation of bail. 13. Under these circumstances, the apprehension of the detaining authority that after release on bail, there is imminent possibility of the detenu committing similar offence, unless he is prevented from doing so by an appropriate order of detention, is highly misplaced. 14. Here, it is apt to state that acts which are 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 would amount to 'law and order problem' only, while in another, it might affect the public order. Some infractions of law may lead to disturbance of 'law and order', but every infraction of law does not necessarily result in 'public disorder'. In the instant case, grave as the offences may be, in the given circumstances of the case, they are committed against particular individuals and not the general public at large. Hence, no inference of disturbance of public order can be drawn. The subject cases can certainly be tried under the normal criminal law and, if convicted, can certainly be punished by the Court of law. Thus, the subject cases do not fall within the ambit of the words "public order" or "disturbance of public order". Instead, they fall within the scope of the words "law and order". Hence, there was no need for the detaining authority to pass the impugned detention order. 15. It is the bounden duty of the Police to inform the learned Public Prosecutor about the conduct of the detenu and to hand over the entire case record available against the detenu. Instead, they fall within the scope of the words "law and order". Hence, there was no need for the detaining authority to pass the impugned detention order. 15. It is the bounden duty of the Police to inform the learned Public Prosecutor about the conduct of the detenu and to hand over the entire case record available against the detenu. The police are supposed to be vigilant in collecting the whole data against the detenu and furnish the same to the Public Prosecutor/Additional Public Prosecutor to defeat the bail application/s of the detenu. Moreover, criminal law was already set into motion against the detenu. Since the detenu has allegedly committed offences punishable under the Indian Penal Code, the said crimes can be effectively dealt with under the provisions of the Penal Code and there was no need for the detaining authority to invoke the draconian preventive detention law. The detaining authority cannot be permitted to subvert, supplant or substitute the punitive law of land, by ready resort to preventive detention. 16. For the foregoing reasons, the impugned orders are legally unsustainable and are liable to be set aside. 17. In the result, the writ petition is allowed. The impugned detention order vide No. 23/PD-CELL/CYB/2021 dated 22.03.2021, passed by the respondent No. 2, and the consequential confirmation order vide G.O. Rt. No. 1138, dated 21.05.2021, passed by the respondent No. 1, are hereby set aside. The respondents are directed to set the detenu, namely Sri Erukala Venkatesam @ Venkatesh S/o. Mogulaiah, at liberty forthwith, if he is no longer required in any other criminal case. 18. The miscellaneous petitions, if any, pending in this writ petition shall stand closed. There shall be no order as to costs.