Research › Search › Judgment

Telangana High Court · body

2021 DIGILAW 407 (TS)

Konala Anasuya v. State of Telangana

2021-12-13

A.RAJASHEKER REDDY, CHILLAKUR SUMALATHA

body2021
ORDER : A. Rajasheker Reddy, J. Smt Konala Anasuya, the petitioner, has filed this Habeas Corpus petition on behalf of her husband, Sri Konala Achi Reddy, S/o. Subbi Reddy, the detenu, challenging the detention order vide Proc.No.C1/3687/2021, dt.27.04.2021, passed by the 2nd respondent whereby, the detenu was detained under Section 3(2) of the Telangana Preventive Detention Act, 1986 (Act 1 of 1986) and the consequential confirmation order vide G.O.Rt.No.1450, dt.06.07.2021, passed by the 1st respondent. 2. Heard learned counsel for the petitioner and the 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 three crimes viz., (1) Cr.No.114/2020 of Tripuraram P.S.; (2) Cr.No.50/2021 of Nalgonda II Town P.S. and (3) Cr.No.44/2021 of Miryalaguda II town P.S., the respondent No.2 passed the impugned detention order, dated 27.04.2021. According to respondent No.2, the detenu along with his associates have induced innocent job aspirants/unemployed youth, promising to provide them jobs in Railways, Electricity Board, Government hospitals and other departments and thus collected huge amounts and failed to arrange jobs and also made them believe that as per their horoscopes they have certain problems and on the pretext of performing certain poojas, collected huge amounts from the victims and thus cheated them and thereby created panic and feeling of insecurity among the public, particularly un-employed youth, which is prejudicial to the maintenance of public order apart from disturbing peace, tranquility and social harmony in the society. Subsequently, the impugned detention order was confirmed by the Government, vide G.O.Rt.No.1450, dt.06.07.2021. 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 detenu was granted conditional bail by the Courts in all the three crimes and charge sheets were also filed and the detenue has not violated any bail conditions. But he was again sent to jail by invoking the draconian preventive detention laws on the apprehension that there is imminent possibility of the detenu, again, indulging in similar offences, which is unjustified. But he was again sent to jail by invoking the draconian preventive detention laws on the apprehension that there is imminent possibility of the detenu, again, indulging in similar offences, which is unjustified. He also submits that the detaining authority while passing the detention order though referred bail orders but, has not discussed the bail conditions imposed which vitiates the subjective satisfaction arrived by it and it goes to show non application of mind by the detaining authority while passing the impugned detention order. The alleged crimes do not add up to “disturbing the public order” and they are confined within the ambit and scope of “law and order”. Since the offences alleged are under the Indian Penal Code, the detenu can certainly be tried and convicted if found guilty 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. 5. On the other hand, the learned Assistant Government Pleader for Home appearing for the respondents filed counter and supported the impugned orders and submitted that the detaining authority has not only taken three cases as a ground for passing the order of detention but also taken the past history of the detenu of involving in seven (7) crimes of cheating the public which are affecting the public order apart from disturbing peace and tranquility in the area. 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 along with the entire material, the Government confirmed the impugned detention order vide G.O.Rt.No.1450, dt.06.07.2021. 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 Proc.No.C1/3687/2021, dt.27.04.2021, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.1450, dt.06.07.2021, passed by the 1st respondent, are liable to be set aside?” POINT: 7. 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 Proc.No.C1/3687/2021, dt.27.04.2021, passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.1450, dt.06.07.2021, passed by the 1st respondent, 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. 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 '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 three crimes indicated above, has passed the impugned detention order, dated 27.04.2021. 11. As seen from the material placed on record, the crimes relied upon by the detaining authority for preventively detaining the detenu relate to cheating by collecting huge amount from the unemployed youth by inducing them to provide jobs. In the present case, the detaining authority, basing on three crimes indicated above, has passed the impugned detention order, dated 27.04.2021. 11. As seen from the material placed on record, the crimes relied upon by the detaining authority for preventively detaining the detenu relate to cheating by collecting huge amount from the unemployed youth by inducing them to provide jobs. Further, the detenu was arrested in connection with all the three crimes and subsequently, he moved bail petitions in the said crimes and he was granted conditional bails by the Courts concerned and was released. Under these circumstances, the apprehension of the detaining authority that since the detenu was released on bail, there is imminent possibility of his involving in similar offences unless he is prevented from doing so by an appropriate order of detention, is highly misplaced. 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. Further, in the instant case, since the detenu was granted bail by the Courts concerned, if it is found that the detenu has involved in further crimes, the prosecution can apprise the same to the Courts concerned and seek cancellation of bail. 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 draconian preventive detention laws. The detaining authority cannot be permitted to subvert, supplant or substitute the punitive law of land, by ready resort to preventive detention. 12. The Apex Court in Criminal Appeal No.733 of 2021 in Banka Sneha Sheela v. The State of Telangana & Others considered the similar issue wherein the detenu was involved in five offences relating to cheating and criminal breach of trust. The Apex Court while considering the appeal filed by the State of Telangana at paras 13 and 14 held as follows; “13. The Apex Court while considering the appeal filed by the State of Telangana at paras 13 and 14 held as follows; “13. There can be no doubt that for ‘public order’ to be disturbed, there must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects ‘law and order’ but before it can be said to affect ‘public order’, it must affect the community or the public at large. 14. There can be no doubt that what is alleged in the five FIRs pertain to the realm of ‘law and order’ in that various acts of cheating are ascribed to the Detenu which are punishable under the three sections of the Indian Penal Code set out in the five FIRs. A close reading of the Detention Order would make it clear that the reason for the said Order is not any apprehension of widespread public harm, danger or alarm but is only because the Detenu was successful in obtaining anticipatory bail/bail form the courts in each of the five FIRs. If a person is granted anticipatory bail/bail wrongly, there are well-known remedies in the ordinary law to take care of the situation. The State can always appeal against the bail order granted and/or apply for cancellation of bail. The mere successful obtaining of anticipatory bail/bail orders being the real ground for detaining the Detenu, there can be no doubt that the harm, danger or alarm or feeling of security among the general public spoken of in Section 2(a) of the Telangana Prevention of Dangerous Activities Act is make believe and totally absent in the facts of the present case.” While referring several Judgment, the Apex Court allowed Criminal Appeal No.733 of 2021 filed by the detenu and quashed the detention order. 13. In the present case, the ground cases relied on by the detaining authority are only 3 and as such, the law laid down by the Apex Court in the aforesaid case applies to the facts of the present case. 14. In the instant cases, grave as the offences may be, in the given circumstances of the case, they are not committed against the general public at large. Hence, no inference of disturbance of public order can be drawn. 14. In the instant cases, grave as the offences may be, in the given circumstances of the case, they are not committed against 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/special law and, if convicted, can certainly be punished by the Court of law. Thus, the subject cases do not fall within the ambit of “public order” or “disturbance of public order”. Instead, they fall within the scope of “law and order”. Hence, there was no need for the detaining authority to pass the impugned detention order. 15. For the foregoing reasons, we are of the opinion that the impugned orders are legally unsustainable and are liable to be set aside. 16. In the result, the Writ Petition is allowed. The impugned detention order vide Proc.No.C1/3687/2021, dt.27.04.2021, passed by the 2nd respondent and the consequential confirmation order vide G.O.Rt.No.1450, dt.06.07.2021, passed by the 1st respondent pursuant to the detention order, are hereby set aside. The respondents are directed to set the detenu, namely Sri Konala Achi Reddy, S/o. Subbi Reddy, at liberty forthwith, if he is no longer required in any other criminal case. 17. The Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed. There shall be no order as to costs.