Allowed

Syed Afzali Begum v. The State of Telangana

Telangana HC14 Oct 2019WP/436/2019

Case brief

AI extract

What is this about?

This High Court allowed a writ petition challenging the preventive detention orders against the petitioner's husband. The court held that habitual burglary and theft constitute 'law and order' problems, not 'public order' disturbances, and thus do not justify preventive detention under Article 21. The detention orders were quashed, and the detenu was released.

What did the court decide?

Quashed the detention order dated 09.10.2018 and confirmation order dated 19.10.2018. Directed access to liberty for the detenu. Ordered formation of a medical board by Nizam's Institute of Health Sci

Syed Afzali Begum 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 AND THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER

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Writ Petition No.436 of 2019

Date: 04.07.2019

Between:

Syed Afzali Begum

…Petitioner
And

The State of Telangana,
Rep. by its Principal Secretary to Govt (POLL),
General Administration (Spl. (Law & Order) Dept.,
Secretariat, Hyderabad,
and others.
…Respondents
Counsel for the Petitioner : Sri Shaik Karimulla
Counsel for the respondents : Sri S. Sharath,
Special Government Pleader
The Advocate General
The Court made the following:

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HCJ & Dr. SAJ W.P.No.436 of 2019

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ORDER: (Per the Hon’ble Dr. Justice Shameem Akther)

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Smt. Syed Afzali Begum, the petitioner, has filed this present petition on behalf of her husband-Syed Mohammad, challenging the detention order dated 09.10.2018 passed by the Commissioner of Police, Hyderabad City, the respondent No.6, and the confirmation order dated 19.10.2018 passed by the Principal Secretary to Government (POLL), Government of Telangana, the respondent No.1.

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Heard the learned counsel for the parties, and perused the impugned orders.

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Briefly, the facts of the case are that by relying on the five recent cases registered against the detenu, the Commissioner of Police, Hyderabad City, respondent No.6, passed the detention order dated 09.10.2018. According to the respondent No.6, the detenu was involved in as many as thirty three burglary cases in the limits of Hyderabad Police Commissionerate. But, merely relying on the recent five cases, the detention order was passed. Subsequently, by order dated 19.10.2018 the detention order was confirmed by the Principal Secretary to Government (POLL), Government of Telangana, respondent No.1. Hence, this writ petition before this Court.

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Mr. Shaik Karimulla, learned counsel for the petitioner, has raised the following contentions before this Court:

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HCJ & Dr. SAJ W.P.No.436 of 2019

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Firstly, that relying only on the five cases registered against the detenu, the detention order is passed. There is no evidence about the alleged cases registered against the detenu. The alleged cases do not add up 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 penal code. Thus, there was no need for the detaining authority to invoke the draconian preventive detention laws. Hence, the impugned order tantamount to the colourable exercise of power. Thus, the impugned orders are legally unsustainable.

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On the other hand, Mr. S. Sharath, the learned Special Government Pleader, pleads that in each case, allegedly committed by the detenu, he managed to get bail from the Court concerned. The series of crimes allegedly committed by him were sufficient to cause a feeling of insecurity in the minds of the people at large. Since the modus of committing the crime was lurking house-trespass and theft in dwelling house, it has created sufficient panic in the minds of the general public. Therefore, the detaining authority was legally justified in passing the impugned orders. Hence, the learned Government Pleader has supported the impugned orders.

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

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HCJ & Dr. SAJ W.P.No.436 of 2019

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“Whether the detention order, dated 09.10.2018, passed by the respondent No.6 and the confirmation order, dated 19.10.2018, passed by the respondent No.1, are liable to be set aside?”

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POINT:

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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 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. For the invoking of such law adversely effects the fundamental right of personal liberty which is protected and promoted 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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In the case of Ram Manohar Lohia v. State of Bihar¹ ,

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the Hon’ble Supreme Court has, in fact, deprecated the invoking of the preventive law in order to tackle a law and

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1 AIR 1966 SC 740

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HCJ & Dr. SAJ W.P.No.436 of 2019

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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 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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HCJ & Dr. SAJ W.P.No.436 of 2019

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In the case of K anu Biswas v. State of West Bengal² ,

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the 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 present case, the detenu is allegedly involved in five criminal cases in Crime Nos.1/2018, 179/2018, 13/2018, 15/2018 and 46/2018. We shall present them in a tabular column the date of occurrence, the date of registration of FIRs, the offences complained of and their nature, such as bailable/non-bailable or cognizable/noncognizable.

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Crime No.	Date of Occurrence	Date of registration of FIR	Offences	Nature
1/2018 of Golconda PS	31.12.2017	01.01.2018	Sections 457 & 380 of IPC	Non-bailable/ cognizable
179/2018 of Golconda PS	27.05.2018	28.05.2018	Sec.457, 380, 109, 411 r/w 34 IPC	Non-bailable/ cognizable
13/2018 of Asifnagar PS	24.12.2017	21.01.2018	Sections 457 & 380 of IPC	Non-bailable/ cognizable
15/2018 of Humayunnagar PS	20.01.2018	20.01.2018	Sections 454 & 380 of IPC	Non-bailable/ cognizable
46/2018 of LangerHouse PS	20.02.2018	21.02.2018	Sections 457 & 380 of IPC	Non-bailable/ cognizable

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2 (1972) 3 SCC 831

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HCJ & Dr. SAJ W.P.No.436 of 2019

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A bare perusal of the detention order clearly reveals that the detaining authority is concerned by the fact that in all the criminal cases the detenu has been granted bail by the Court concerned. However, the apprehension of the detaining authority that even in future the detenu is likely to get bail, is highly misplaced. It is the bounden duty of the Police to inform the learned Public Prosecutor about the conduct of an accused and to handover the history-sheet of the accused. If the Police were vigilant enough to collect the data on the alleged offenders, 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. However, it is the Police that has to take required measures to inform the Public Prosecutor about the criminal history of the offender. For the inaction of the Police, the respondent No.6 cannot be permitted to invoke the preventive detention laws in order to breach the liberty of an individual.

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Grave as the offences may be, they are lurking housetrespass and theft in dwelling house. So, no inference of disturbance of public order can be drawn. These cases can be tried under the normal criminal law. Hence, there was no need for the detaining authority to pass the detention order. Therefore, the impugned orders are legally unsustainable.

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For the reasons stated above, the Writ Petition is hereby allowed. The impugned detention order dated 09.10.2018 and

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HCJ & Dr. SAJ W.P.No.436 of 2019

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the confirmation order dated 19.10.2018 are hereby set aside. The respondents are directed to set the detenu , namely Syed Mohammad S/o. Syed Sarwar, at liberty forthwith, in case he is no longer detained in the criminal cases which have been registered so far against him. Upon his release, the detenu is directed to appear before the Deputy Commissioner of Police, West Zone, Hyderabad on 08.07.2019 at 10.30 AM.

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This Court further directs the Chairman of the Psychiatric Department, Nizam’s Institute of Health Sciences, Hyderabad to constitute a Medical Board of three senior most Psychiatrists in order to discover any psychological/ psychiatric problem(s) with which the detenu may be suffering from. The Deputy Commissioner of Police shall ensure that the detenu is produced before the Medical Board on 09.07.2019. The Medical Board is requested to submit its report before this Court on 11.07.2019.

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RAGHVENDRA SINGH CHAUHAN, HCJ

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Dr. SHAMEEM AKTHER, J

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Date: 04.07.2019 scs

Syed Afzali Begum v. The State of Telangana

Case brief

What is this about?

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Syed Afzali Begum v. The State of Telangana

Case brief

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