Allowed

Kasula Lakshman v. The State of Telangana

Telangana HC17 Oct 2019WP/14693/2019

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging a preventive detention order. The Court held that the detaining authority wrongly invoked preventive detention laws for ordinary law and order offences like robbery and extortion, which did not disturb public order, and set aside the order releasing the detenu.

What did the court decide?

The petioner was granted liberty to move as he wished. The detention orders passed on 18.02.2019 and confirmed on 28.03.2019 were set aside.

Kasula Lakshman Vs The State of… — Constitutional and Fundamental Rights | Telangana HC (2019)

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HIGH COURT FOR THE STATE OF TELANGANA

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THE HON’BLE THE CHIEF JUSTICE RAGHVENDRA SINGH CHAUHAN

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AND

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THE HON’BLE SRI JUSTICE A.ABHISHEK REDDY

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WRIT PETITION No.14693 OF 2019

Date : 17.10.2019

Between :

Kasula Lakshman

... Petitioner

and The State of Telangana, Represented by its Principal Secretary, to Government (Poll), General Administration (Spl. (Law & Order) Department, Secretariat Buildings, Hyderabad. and others ... Respondents Counsel for the petitioner: Sri P.Ravi Shanker Counsel for the respondents: Sri S.Sharath Kumar, Special Government Pleader.

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The Court made the following :

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W.P.No.14693 of 2019 HCJ & AAR, J

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ORDER: (Per the Hon’ble Sri Justice A.Abhishek Reddy)

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Sri Kasula Lakshman, the younger brother of the detenu, Kasula Ramesh, has filed the present Writ Petition, challenging the Detention Order passed by the 2^nd respondent, who by exercising the powers conferred under Section 3 (2) of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, DrugOffenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser 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 (in short, ‘the Act’), vide proceedings in SB-ID.No.49/S1/PD-KMM/2018, dated 18.02.2019, and confirmed by the 1^st respondent vide G.O.Rt.No.918, General Administration (Spl. (Law & Order) Department, dated 28.03.2019, alleging that the detenu has been habitually engaging himself in unlawful activities by indulging in a series of property offences like robbery, extortion and theft, and thereby creating large scale fear and panic among the general public and adversely affecting the public order. The ground on which the detention order is passed by the 2^nd respondent is that in the year 2018, the detenu was involved in four similar offences viz., (1) crime No.213/2018 of Khammam Rural PS, (2) crime No.209/2018 of Khammam Rural PS, (3) crime No.127/2018 of Khammam Rural PS, and (4) crime No.101/2018 of Mudigonda PS.

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It is the case of the petitioner that the detenu was falsely implicated in the above referred cases. Even though, he got bail in

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W.P.No.14693 of 2019 HCJ & AAR, J

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all the above referred cases, he continued to be in judicial custody due to passing of the impugned detention order and the same is passed only to see that the detenu does not come out of the jail. Hence, the present writ petition.

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Heard the learned Counsel for the parties, and perused the impugned order.

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Sri P.Ravi Shanker, the learned counsel appearing for the petitioner, submits that relying only on four cases registered against the detenu, that too in the year 2018, the impugned detention order is passed. He further submits that the alleged cases do not amount to ‘disturbing the public order’. 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 Indian Penal Code. Thus, there was no need for the detaining authority to invoke the draconian preventive detention laws. Hence, the impugned detention order tantamounts to the colourable exercise power. Thus, the impugned orders are legally unsustainable.

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On the other hand, Mr.S.Sharath Kumar, the learned Special Government Pleader, pleads that in all the four cases the detenu was granted bail by the concerned Court. The series of crimes allegedly committed by him were sufficient to cause a feeling of insecurity and fear in the minds of the people at large. Since the modus of crime is intercepting the goods vehicles on the highways at isolated places by misrepresenting himself as a Police Constable and robbing money and other valuables from the drivers forcibly by assaulting them, it has created large scale fear and

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W.P.No.14693 of 2019 HCJ & AAR, J

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panic among the public. Therefore, the detaining authority was legally justified in passing the impugned detention order. Hence, the learned Special Government Pleader has supported the impugned detention order.

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In view of the submissions made by both the sides, the point that rises for determination in this Writ Petition is:

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“Whether the detention order, dated 18.02.2019, passed by the 2^nd respondent and the confirmation order, dated 28.03.2019, passed by the 1^st respondent are liable to be set aside or not?”

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POINT :

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In catena of decisions the Hon’ble Supreme Court as well as this Court have held that there is a vast difference between “law and order” and “public order”. The offences which are committed against a particular individual fall within the ambit of “law and order”. It is only when the public at large is adversely affected by the criminal activities of a person, the conduct of a person is 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. The invoking of such law adversely effects the fundamental right of personal liberty which is guaranteed and protected by Article 21 of the Constitution of India. Hence, according to the Apex Court, the detaining authority should be wary of invoking the immense power under the Act.

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W.P.No.14693 of 2019 HCJ & AAR, J

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The Hon’ble Supreme Court in V.Shantha v. State of

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Telangana and Others¹ while considering the various provisions of

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the Act has held as under:

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The detenu was the owner of Laxmi Bhargavi Seeds, district distributor of Jeeva Aggri Genetic Seeds. Three FIRs were lodged against the detenu and others under Sections 420, 120-B, 34 IPC and Sections 19 and 21 of the Seeds Act, 1966. It was alleged that chilli seeds sold were spurious, as they did not yield sufficient crops, thus causing wrongful loss to the farmers, and illegal gains to the accused. Whether the seeds were genuine or not, the extent of the yield, are matters to be investigated in the FIRs. Section 19 of the Seeds Act provides for penalty by conviction and sentence also. Likewise, Section 20 provides for forfeiture. Sufficient remedies for the offence alleged were, therefore, available and had been invoked also under the ordinary laws of the land for the offence alleged.

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The order of preventive detention passed against the detenu states that his illegal activities were causing danger to poor and small farmers and their safety and financial wellbeing. Recourse to normal legal procedure would be time-consuming, and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the Preventive Detention Act as an extreme measure to insulate the society from his evil deeds. The rhetorical incantation of the words “goonda” or “prejudicial to maintenance of public order” cannot be sufficient justification to invoke the Draconian powers of preventive detention. To classify the detenu as a “goonda” affecting public order, because of inadequate yield from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of preventive detention. The grounds of detention are ex facie extraneous to the Act.

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The Hon’ble Supreme Court further held that preventive detention involves detaining of a person without trial in order to prevent

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1 (2017) 4 SCC 577

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him/her from committing certain types of offences. But such detention cannot be made a substitute for the ordinary law, and absolve the investigating authorities of their normal functions of investigating crimes which the detenu may have committed. After all, preventive detention in most cases is for a year only, and cannot be used as an instrument to keep a person in perpetual custody without trial.

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In the case of Ram Manohar Lohia v. State of Bihar² , the Hon’ble Supreme Court has, in fact, deprecated the invoking of the preventive law in order to tackle a law and order problem. The Hon’ble Supreme Court has observed as under:

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54. We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detained public disorder is the apprehended result. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression "public order' take in every kind of disorders or only some of them? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects

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2 AIR 1966 SC 740

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order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.

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10. In the case of Kanu Biswas v. State of West Bengal³ ,

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the Hon’ble Supreme Court has opined as under:

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T he 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. Public order is what the French call ‘order publique’ and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, as laid down in the above case, is: Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed?

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In the instant case, the detaining authority mainly relied on four cases registered against the detenu for preventively detaining him. We shall present in a tabular form the date of occurrence, the date of registration of FIRs, the offence complained of and their nature, such as bailable/non-bailable or cognizable/non-cognizable.

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Sl. No.	Crime No.	Date of occurrence	Date of registration of FIR	Offences	Nature
1.	213/2018 of Khammam Rural PS	13.06.2018	13.06.2018	Section 392 IPC	Cognizable/ Non-Bailable
2.	209/2018 of Khammam Rural PS	11.06.2018	11.06.2018	Section 384 IPC	Cognizable/ Non-Bailable

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3 (1972) 3 SCC 831

W.P.No.14693 of 2019

HCJ & AAR, J

3.	127/2018 of Khammam Rural PS	29.03.2018	29.03.2018	Section 384 IPC	Cognizable/ Non-Bailable
4.	101/2018 of Mudigonda PS	24.05.2018	26.05.2018	Section 384 IPC	Cognizable/ Non-Bailable

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A perusal of the impugned detention order reveals that

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in all the four cases, the detenu moved bail petitions, and he was granted bail by the concerned Court. However, the apprehension of the detaining authority that after release on bail, there is imminent possibility of his committing similar offences, unless he is prevented from doing so by an appropriate order of detention, is highly misplaced. If the detenu is enlarged on bail and violates the conditions of bail or indulges in similar crimes while on bail, the concerned authority/Public Prosecutor is free to move the concerned Court for getting the bail cancelled. It is the bounden duty of the police concerned to hand over the entire material record available to the Public Prosecutor/Assistant Public Prosecutor to see that the bail application of the detenu is dismissed. If the Police are vigilant enough to collect the data relating to the alleged offences, and to furnish the relevant information to the learned Public Prosecutors, the same could be placed by the learned Public Prosecutors before the concerned Court. It is the Police that have to take required measures to inform the Public Prosecutor about the criminal history of the offender. For the inaction of the Police, the detaining authority cannot be permitted to invoke the preventive detention laws, in order to breach the liberty of an individual.

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In State of Maharashtra and Ors. v. Bhaurao

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Punjabrao Gawande⁴ the Hon’ble Supreme Court has held as

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follows:

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23....personal liberty is a precious right. So did the Founding Fathers believe because, while their first object was to give unto the people a Constitution whereby a government was established, their second object, equally important, was to protect the people against the government. That is why, while conferring extensive powers on the government like the power to declare an emergency, the power to suspend the enforcement of fundamental rights or the power to issue ordinances, they assured to the people a Bill of Rights by Part III of the Constitution, protecting against executive and legislative despotism those human rights which they regarded as fundamental. The imperative necessity to protect these rights is a lesson taught by all history and all human experience. Our Constitution-makers had lived through bitter years and seen an alien Government trample upon human rights which the country had fought hard to preserve. They believed like Jefferson that "an elective despotism was not the Government we fought for". And, therefore, while arming the Government with large powers to prevent anarchy from within and conquest from without, they took care to ensure that those powers were not abused to mutilate the liberties of the people.

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In the Nine-Judge Constitution Bench decision in I.R. Coelho v. State of T.N.⁵ the Hon’ble Supreme Court has

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observed as follows:

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109. ……It is necessary to always bear in mind that fundamental rights have been considered to be (the) heart and soul of the Constitution

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49. ..... Fundamental rights occupy a unique place in the lives of civilized societies and have been described in judgments as "transcendental", "inalienable", and primordial.

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4 (2008) 3 SCC 613

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5 (2007) 2 SCC 1

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It is also appropriate to refer to the decision of the Hon’ble Apex Court in Rekha Vs. State of Tamil Nadu⁶ , wherein it is held as follows:

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23. … .criminal cases are already going on against the detenu under various provisions of the Indian Penal Code as well as under the Drugs and Cosmetics Act, 1940 and if he is found guilty, he will be convicted and given appropriate sentence. In our opinion, the ordinary law of the land was sufficient to deal with this situation, and hence, recourse to the preventive detention law was illegal. ”

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30. Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal.

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Grave as the offences may be, they relate to robbery, extortion and theft. So, no inference of disturbance of public order can be drawn. These types of cases can certainly be tried under the normal criminal justice system. And, if convicted, can certainly be punished by the Court of law. Hence, there was no need for the detaining authority to pass the detention order.

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Therefore, for the reasons stated above, the impugned detention order is legally unsustainable.

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In the result, the Writ Petition is allowed. The impugned detention order, dated 18.02.2019, passed by the 2^nd respondent, and the confirmation order, dated 28.03.2019, passed by the 1^st respondent are hereby set aside. The respondents are directed to set the detenu namely, Mr.Kasula Ramesh, S/o.Yadaiah, at

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6 (2011) 5 SCC 244

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liberty forthwith, if he is no longer detained in judicial custody in the criminal cases, which have been so far registered against him.

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The miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.

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_________________________________ RAGHVENDRA SINGH CHAUHAN, HCJ

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