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2022 DIGILAW 233 (TS)

C. Abhayananda v. State of Telangana

2022-03-16

CHILLAKUR SUMALATHA, SHAMEEM AKTHER

body2022
ORDER : Shameem Akther, J. Sri C. Abhayananda, the petitioner, has filed this Habeas Corpus petition on behalf of his son, Chetty Saichitra Anand, the detenu, challenging the detention order vide No.160/PD-CELL/CYB/2021, dated 18.11.2021, passed by the respondent No.3, whereby, the detenu was detained under Section 3(2) of the Telangana Preventive Detention Act, 1986 (Act 1 of 1986). 2. Heard the 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 a recent solitary crime registered against the detenu viz., Crime No.515 of 2021 of Miyapur Police Station, Cyberabad Commissionerate, registered for the offence punishable under Section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’), the respondent No.3 passed the impugned detention order, dated 18.11.2021. According to respondent No.3, the detenu is a ‘Drug Offender’, as he has been engaging himself in illegal and highly dangerous activities of peddling ganja among the innocent people in the limits of Cyberabad Police Commissionerate endangering the lives of the people especially youth, college students and daily labourers and causing irreparable damage to their Central Nervous System, thereby crippling the mental and physical health of the people at large and acting in a manner prejudicial to maintenance of public order and health as well. Subsequently, the impugned detention order was confirmed by the Government, vide G.O.Rt.No.343, dated 11.02.2022. 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 got conditional bail in the solitary crime relied upon by the detaining authority vide order, dated 04.06.2021, passed in Crl.P.No.4044 of 2021 by this Court. 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 offence, which is unjustified. The alleged crime does not add up to “disturbing the public order” and it is confined within the ambit and scope of the word “law and order”. Since the offence alleged is under the NDPS Act, the detenu can certainly be tried and convicted under the said special law. The alleged crime does not add up to “disturbing the public order” and it is confined within the ambit and scope of the word “law and order”. Since the offence alleged is under the NDPS Act, the detenu can certainly be tried and convicted under the said special law. 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 supported the impugned orders and submitted that the detenu is a ‘Drug Offender’. He has been indulging in peddling of ‘ganja’, a narcotic substance, endangering the lives of youth causing irreparable damage to their body organs including the central nervous system, thereby crippling the health of those addicted to drugs. The detenu got conditional bail in the solitary crime relied upon by the detaining authority. Therefore, the apprehension of the detaining authority that there is imminent possibility of the detenu indulging in similar offence, is not misconceived. The crime allegedly committed by the detenu was causing widespread danger to public health and detrimental to public order. 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 on record, the Government confirmed the impugned detention order vide G.O.Rt.No.343, dated 11.02.2022. 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 No.160/PD-CELL/CYB/2021, dated 18.11.2021, passed by the respondent No.3, and the consequential confirmation order vide G.O.Rt.No.343, General Administration (Spl. (Law & Order)) Department, dated 11.02.2022, passed by the Principal Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana, are liable to be set aside?” POINT: 7. (Law & Order)) Department, dated 11.02.2022, passed by the Principal Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana, 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 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 a solitary crime indicated above, has passed the impugned detention order, dated 18.11.2021. We shall present it in a tabular form the date of occurrence, the date of registration of FIR, the offence complained of and its nature, such as bailable/non-bailable or cognizable/non-cognizable. 10. In the present case, the detaining authority, basing on a solitary crime indicated above, has passed the impugned detention order, dated 18.11.2021. We shall present it in a tabular form the date of occurrence, the date of registration of FIR, the offence complained of and its nature, such as bailable/non-bailable or cognizable/non-cognizable. Crime No. Date of Occurrence Date of registration of FIR Offences Nature 515/2021 of Miyapur PS 25.04.2021 25.04.2021 Section 20 (b) (ii) (C) of NDPS Act Qty : (1) 1 kg of Ganja (2) 700 ml weed oil (3) three weed oil bottles (10 ml) Cognizable/ Non-Bailable 11. As seen from the material placed on record, the solitary crime relied upon by the detaining authority for preventively detaining the detenu relate to peddling of ganja. The detenu was arrested in connection with the said crime and subsequently, he moved a bail petition in the said crime before the Metropolitan Sessions Judge, Cyberabad, Ranga Reddy District at L.B.Nagar, but the same was dismissed. Thereafter, the detenu filed Crl.P.No.4044 of 2021 before this Court and the same was allowed on 04.06.2021 on certain conditions. The conditional order of bail restricts the movement of the detenu and requires him to appear before the officer concerned periodically. Under these circumstances, the apprehension of the detaining authority that there is imminent possibility of the detenu indulging in similar offence, 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 handover 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 conditional bail by the Court concerned, 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. Moreover, criminal law was already set into motion against the detenu. Further, there is no antecedent criminal history against the detenu. Moreover, criminal law was already set into motion against the detenu. Further, there is no antecedent criminal history against the detenu. As held in Vijay Narain Singh v. State of Bihar, (1984) 3 SCC 14 , a single act or omission cannot be characterized as a habitual act because, the idea of ‘habit’ involves an element of persistence and a tendency to commit or repeat similar offences, which is patently not present in the instant case. Since the detenu has allegedly committed offence punishable under the NDPS Act, the said crime can be effectively dealt with under the provisions of the special law 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. 12. 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 single case, grave as the offence may be, in the given circumstances of the case, it is committed against particular individuals and not the general public at large. Hence, no inference of disturbance of public order can be drawn. The subject single case 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 instant single case does not fall within the ambit of the words “public order” or “disturbance of public order”. Instead, it falls within the scope of the words “law and order”. Hence, there was no need for the detaining authority to pass the impugned detention order. For the foregoing reasons, the impugned orders are legally unsustainable and are liable to be set aside. 13. In the result, the Writ Petition is allowed. The impugned detention order vide No.160/PD-CELL/CYB/2021, dated 18.11.2021, passed by the respondent No.3, and the consequential confirmation order vide G.O.Rt.No.343, General Administration (Spl. (Law & Order)) Department, dated 11.02.2022, passed by the Principal Secretary to Government, General Administration (Spl. 13. In the result, the Writ Petition is allowed. The impugned detention order vide No.160/PD-CELL/CYB/2021, dated 18.11.2021, passed by the respondent No.3, and the consequential confirmation order vide G.O.Rt.No.343, General Administration (Spl. (Law & Order)) Department, dated 11.02.2022, passed by the Principal Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana, are hereby set aside. The respondents are directed to set the detenu, namely Chetty Saichitra Anand, S/o. Abhya Anand Prakash, at liberty forthwith, if he is no longer required in any other criminal case. The Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed. There shall be no order as to costs.