Allowed

Meeramydeen v. The State of Telangana, And 2 Others

Telangana HC5 Mar 2020WP/1116/2020

Case brief

AI extract

What is this about?

The High Court set aside an illegal preventive detention order. Relying on Supreme Court precedents, it held that ordinary criminal offences regarding fake passports did not disturb public order, rendering the draconian preventive detention law inapplicable and the order a colourable exercise of power.

What did the court decide?

The impugned detention orders passed by the 2nd and 1st respondents are set aside, and the detenu is directed to be set at liberty forthwith.

Meeramydeen Vs The State of Telangana, And… — Pension and Retirement Benefits | Telangana HC (2020)

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HIGH COURT FOR THE STATE^{OF TELANGANA} AT HYDERABAD

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(Special Original Jurisdiction)

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THURSDAY, THE FIFTH DAY OF MARCH

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TWO THOUSAND AND TWENTY

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PRESENT

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THE HON'BLE THE CHIEF JUSTICE RAGHVENDRA SINGH CHAUHAN AND

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THE HON'BLE SRI JUSTICE A. ABHISHEK REDDY

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WRIT PETITION NO: 1116 OF 2020

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Between:

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Meeramydeen, S/o. Shahulhameed, aged 60^years, Occ. Real Estate,^R/o. 149fu16A, 2nd Street, Nethaji Nagar, New Washermenpet, Tondiarpet, Chennai, Tamilnadu 6ooo81

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...PETrroNER

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AND

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1 The State of Telangana, Rep. by its Principal Secretary. General Administration (Spl. (Law and Order) Department, Secretariat, Hyderabad.

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2 The Commissioner, of Police and Addl District lr4agistrate (Executive) Hyderabad City, Hyderabad.

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3 The Superintendent, Central Prison Hyderabad, at Chancha,nrOu...*arrorr=*r,

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Petition under Article 226 ol the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate Writ, Order or Direction, more particularly one in the nature of Writ of Habeas Corpus, directing 3rd Respondent to produce the detenue viz., Mohd Shaik llyas now detained in Central Prison, Chanchalguda, Hyderabad, before this Honorable Court and set-aside the impunged detention order passed by the 2nd Respondent vide S.B. (l) No.98/ PD-61 HYD|2O19, dt.01108/20"19 and confirmation order passed by the 1st respondent vide G.O.Rt. No. 3252, dated 0911212019 by 1st Respondent as being illegal, arbitrary, improper, unilateral, u nco n stitutiona I and violative of Article 21 and 22 of the Constitution of lndia, and to forthwith release the Detenue

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Counsel for the Petitioner: SMT. R. SOWMYA REDDY

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Counsel for Respondents: SRI S. SHARATH KUMAR,

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SPECIAL GOVERNMENT PLEADER

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THE ADVOCATE GENERAL

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The Court made the following : ORDER

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HCJ & AARJ WP I'1o.1116/2020

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ORDER: (Per the Honble Sri Justice A.Abhishek Reddy)

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Mr.Meera.nydeen, the brother-in-law of the detenu viz., Mohd.Shaik Il1'as, has filed the present Writ Petition, challenging the Detention Order passed by the 2nd respondent, who by exercising the powers conferred under Section 3 (2) of the Telangana Prelention of Dangerous Activities ol Bootleggers, Dacoits, Drug 3ffenders, Goondas, lmmoral Traffic Offenders, Land Grabbers. Spurious Seed Offenders, insecticiCe Offenders, Fertiliser Offenclers, Food Adulteration Offenders, Fake Document Offenders, Schr:duled Commodities Offenders, Fore st Offenders, Gaming Offen<lers, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders a nd white Collar or Finarrcial Offenders Act, 1986 (in short,^'t-he Act'), had issued proceedings in SB (l) No.98/PD-6/HYD r20.9, dated 01.08.2019, and confirmed by the 1st responc.ent vide G.O.Rt.No.3252, General Administration (SpI. (LeLu, & Order) Department dated 09.12.2019, alleging that Mohd.Straik [1yas has been habituali5' cheating the people seeking employm:nt abroad by creating fake pzrssports, VISAS and other documents alorg with his associates in arL organized manner to make huge easy nroney and thus creating ltrrge scale fear and panic among the pcople, thereby adversely affecting the public order. The ground on which the detention order is passed by ths 2na respondent is that in the year 2019, the dete'nu was invoived in four similar offences uiz., (1) crime No.35/2019 of Saidabad P.S., (2) crime No.5')/2O19 of Begumpet P.S., (3) crime No.33/2O19 ol Chaderghat P.ti., and (4) 33l2Ol9 of Nanrpally P.S.

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WP No.1116/2020

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It is the case of the^petitioner that^{the detenu was falsely} implicated in the above referred cases.^{Even though,the detenu} was granted bail in all the above referred cases,^{he continuedto be} in^judicial custody, due to^passing of the^{impugned detention order} and the same is passed only to see that the^{detenudoes not come} out of the^jai1. 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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4\ Mrs. Sowmya Reddy, the learned counsel appearing for the petitioner, submits that relying only on four cases registered against the detenu in the year 2019, the impugned detention order is passed. She further submits that the alleged cases do not amount to 'disturblng the public order'. They are confined within the ambit and scope of the word 1aw and order'. Since the olfences alleged are under the provisions of Indian Penal Code and the Indian Passport Act, the detenu can certainly be tried and convicted under the said provisions. Thus, there was no need for the detaining authority to invoke the draconian preventive detention laws. Hence, the impugned 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 iearned Special Government Pleader, pleads that in all the cases registered against the detenu, he obtained bail from the concerned Court. The series of crimes allegedly committed by the detenu were sufficient to cause a feeling of fear and panic among the people

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HC] & AARJ WP No.1116/2020

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thereby adversely affecting the public order. Since the modus of the crime is cheating the gullible people who intend to visit abroad on^job VISA anC visit VISA, by creating fake documents, tampering documents anc collecting huge amounts to lead a larish 1ife, it has created sufficir'nt panic among the general public esp,ecially the people who intend to travel abroad. Therefore, the detaining authorit5i was egally^justified in passing the impug;necl detention order. Hence , the learned Special Government Pleader has supported the impugned order.

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In vir:w 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 01.08.2019,^passed by the 2.d respondent, and the confirmation orrler, dated 09.12.20 [9, passed by the lst respondent, are ]iabLe to be set aside or ::rot?"

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POINT:

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In catr:na of decisions the Hon'ble Supreme Co--rrt as well as this Court have held that there is a vast differencc l>e,lveen "law and order" and ''public order". The offences which etre :ommitted against a partr,:ular individual fall within the ambit ol' "1aw and order". It is orrlS'when the public at large is adversr:l1z trffected by the criminal a<:t.ivities of a person, the conduct of a lrerr;on is said to disturb "thr: oublic order". Moreover, individual cases can be dealt with by l..:re criminal justice system. Therefort:, there is no need for the de':aining authority to invoke the dracon:an preventive detention laws agalnst an individual. The invoking of such law adversely effects; tl,s.{undamental right of personal liberty which is

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WP No.1116/2020

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guaranteed and protected by Article 21 of the Constitution^{of India.} Hence, according to the Apex Court, the^{detainingauthorityshould} be wary of invoking the immense^power under the^Act.

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The Hon'ble Supreme Court in V.Shantha v. State of Telangana and Othersl while considering the various^provisions of

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the Act has held as under:

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The detenu tDa-s the ouner of Laxmi Bhargavi Seeds, distict distibutor of Jeeua Aggri Genetic Seeds.^{Three FIRs} uere lodged against the detenu and others under Sections 420, 120-8, 34 IPC and Sections 19 and 21 of the Seeds Act, 1966. It was alleged tlnt chilli seeds sold u.tere spuiouq as theg did not gield sulftcient crops, thus causing wrongful loss to the farmers, and illegal gains to the acansed. Whether the seeds u.tere genuine or not, the ertent of the gield, are matters to be inuestigated in the FIRs. Section 19 of the Seeds Act prouides for penaltA bg conuiction and sentence al.so, Likeuise, Section 20 prouides for forfeiture. Sufficient remedies for the offence alleged uere, therefore, auailable and had been inuoked also under the ordinary laus of the land for the offence alleged.

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The order of preuentiue detention passed against the detenu states that his itlegal actiuities tuere causing danger to poor and small farmers and their safetg and financial uellbeing. Recourse to normal legal procedure uould be time-consumtng, and would not be an elfectiue detenent to preuent the detenu from^indulgingin further^{prejudicial actiuities in tlLe businessof} spunous seeds, affecting maintenance of public order, and tltot there was no other option except to inuoke the prouisions of the Preuentiue Detention Act as an ertreme meo.sure to insulate th.e societg from his euil deeds. The rhetoical incantation of the uords "goonda" or "prejudicial to maintenance of public order" cannot be suJficient justification to inuoke the Draconian pouers of preuentiue detention. To classifg the detenu as a "goonda" affecting public order, because of inadequate gield from the ch ti seed sold bg him and preuent him from mouing for bail euen is a

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'^{(2017)4 SCC 577}

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HCJ & AARJ lVP No.1116/2020

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gross abuse of the statutory power of preuentiue detention. The grounds oJ Cetention are ex facie ertraneous to the Act.

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The Hon'ble Su preme Court further held that preventivr: detention involves detaining of a person without trial in or(ler to prevent him/her from committing certain types of offences. But such detention cannot be made a substitute for the ordinary 1aw, and absolve the ini estigating authorities of their normz.l functions of investigating c:imes which the detenu may have conrmilted. After all, preventive detention in most cases is for a 5,ear only, and cannot be used as an instrument to keep a person in perpetual custody without triai.

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In the ,rase of Ram Manohar Lohia v. State of Bihar2, the Hon'ble Su preme Court has, in fact, deprecated the^r nvoking of the preventive law in order to tackle a law and order problem. The Hon'b1e Suprer:Lc Court has observed as under:

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W<: haue here a case of detention under Rule' 30 of the Defence ',f India Rutes which permits apprehertsion and detention of a person likelg to act in a manner prejudrcial to the maintenance of pubtic order. It follouts that tf such a person is not detained pubtic disorder i-s the apprehended result. Discrder is no doubt preuented bg the main'' enance of lau and ,:rder also but disorder is a broad spectrum which includes et one end smalt disturbances ond at the other the most serous and cataclgsmic happenings. .)oe:; the expressiort^"public order' toke in euery kind of di:;orders or onlg some of them? The ansuer to this serues to c'tstirtguish "public orCer" from "lau.t and order" becouse the latter undoubtetllg takes in all of them. Public order if Cist;trbed, must lead to public disorder. Duery breach of the^peace: does not leod tc public disorder. When tuo drunkards qLlarrel and tfi.gQt.^{tlrcreis tiisarderbut not public disorder. The.gcanbe}

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2 AIR 1966 sc zq(;

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WP No.1115/2020

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deatt with under the powers to maintain la u.t and order but cannot be detained on the ground that theA were disfitrbing publie order. Suppose that the tuto fighters u.tere of iual communities and one of tlrcm tied to raise communal passions. TLrc problem is still one of law and order but it roises tlrc apprel'tension of public disorder. Other examples can be imagined. The controuention of law abuags affects order but before it can be said to affect pubtic order, it must affect the communitg or the public at large. A mere disturbance of law and order Leading to disorder is thus not necessarilg sufftcient for action under the Defence of India Act but disturbances which subuert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to preuent subuersion of public order but not in aid of maintenance of lau-t and order under ordinary circumstances.

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In the case of Kanu Biswas v. State of West Bengal:,

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the Hon'ble Supreme Court has opined as under:

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The question u-thether a man has onlg committed a breach of lau-t and order or has acted in a manner ltketg to cause a disturbance of the public order is a question of degree and the extent of the reacl't of the act upon the societg. Public order is what the French call'order publique' and is something more than ordinary maintenance of lau-t and order. The test to be adopted tn determining tuhether an act affects lau and order or public order, as laid dou.tn in the aboue case, is: Does it lead to disturbance of the current of life of the communitg so as ,o amount to a disturbance of the pubtic order or does it offect meretg an indiuidual leauing the tranquitity of the soctetg undisturbed?

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In the instant case, the detaining authority relied on four cases registered against the detenu for preventively detaining him. The below tabular form shows the date of occurrence, the date of registration of FIRs, the offence complained of and their

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3 1tozz1 e scc 831

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HC] & AARJ WP No.1115/2020

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nature, such AS bailable / non-bailable OI cogni::able/ non-

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cognizabie.

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sl. No.	CrirneNc,.	Dateof occurrence	Dateof registration of FIR	Offences	Nature
1	3512019ol Saidabad P.S.	Prior to 11.o2.2019	11.02.2019	Secs.420,467 468,471ofIP(l ard Sec.l2(1)(B)oi l.P.Act	()ognizable/ Non-Bailable
2	5912019ot Begumpet P.S.	22.O1.20t9	12.o2.20t9	Secs.420,465 467 ,468,47t e.rtd.472 IPC	()ognizable/ Non-Bailable
3	33I2019of Chaderghat P.S,	Priorto 12.02.2019	12.O2.2019	Secs.420,468 and 471IPC	('ognizable/
4	33/20t9ot' NampallyPSi	20.o1.2019	t3.o2.2019	Secs.420,468 and 471IPC	C:ognizable/ Non-Baitable

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A pelusal of the impugned detention order reveals that the detenu movr:d bail petitions in all the above crime s, and he was granted bail b5' the concerned Court. However, the apF,rehension of the detainilrg authority that in the event of his releasre on bail, there is imminent possibility of the detenu comm itting similar offences, unless he is prevented from doing so by an acpropriate order of detentr,:n, is highly misplaced. If the detenu ir; enlarged on bail and vir:,rates the conditions of bail or indullles in similar crimes while or: bail, the concerned authority/ Public Prosecutor is free to move th,: concerned Court for getting the bail cancelled. It is the bounden <luty of the police concerned to hand over the entire material record available to the Public Prosecutor/As:;istiu-rt Public Prosecutor to {ree that the bail application of the^(letenu is dismissed. If -he Police are vigilant enough to collect the data relating to thc alleged offences, and to furnish the relevant information to^--he learned Pubiic Prosecutors, the same could be placed'by the learr,ed Public Prosecutors before the <:oncerned Court. It is tl.,.e Police that have to take required measures to

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WP No.1116/2020

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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 lavrs, in order to breach the liberty of an individual.

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13) In State of Maharashtra and Ors. v. Bhaurao

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Punjabrao Gawandea the Hon'ble Supreme Court has held as follows:

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23....personal libertg is a precious ight. So did the Founding Fathers belieue because, u-thile their first object uas to giue unto the people a Constitution uhereby a gouernment was established, their second object, equollg important, was to protect the people against the gouentment. That is u.thg, while conferring extensiue pouters on the gouemment like the power to declare an emergencA, the potaer to suspend the enforcement of fundamental ights or the pouLer to issue ordinances, theg assured to the people a Bill of Rights bg Part III of the Constitution, protecting against executiue and legislatiue despotism those human rights uthich theg regarded as fundamental.^{The imperatiue necessitgto protect these ights is a} lesson taught by all history and atl human experience. Our Constitution-makers had liued through bitter gears and seen an alien Gouernment trample upon human nghts tuhich the country had fought hard to preserue. Theg belieued like Jefferson that "an electiue despotism u.ras not the Gouernment u)e fought for''. And, therefore, tuhile orming the Gouernment ttLitL'L targe pouers to preuent anarchg from within and conquest from uithout, theg took care to ensure that those powers u-)ere not abused to mutilate the tiberties of the people.

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In the Nine-Judge Constitution Bench decision in LR. Coelho v, State of T.N.s the Hon'ble Supreme Court has

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observed as follows:

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4 (2008) 3 SCC 613

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s (2007) 2 scc 1

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HCJ & AAR) WP I'1o.1116i 2020

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10tt ......1t is necessary to alwags bear in mind that fundamental^{ights lLaue beencon sidered to be (the) heart and souL} of the Cons trtution

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..... Fundamental ights occupA @ uniE, e place tn the liues of cir,nlized societies and haue been described i;t^jutTgments as "transcend.ental", "inalienable", ond pimordial,

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It is also appropriate to refer to the dt:cisjon of the Hon'ble Apex C,:,urt in Rekha Vs. State of Tamil Nadu6, wherein it is held as folloq's:

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....criminal cases are alreadg going c'n ctgainst the detenu uncter uarious prouisions of the Indian Penal Code as uell as under the Drugs and Cosmetrcs Act, 1940 and if he is f<>und guiltg, he wilt be conuicted and giuen appropiate sentence. In our opinion, the ordinary law of the lond was sufficient to dea'. u.ttth this situation, c,.nd hence, recourse to the preuentiue detentictn law uas illegal."

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Wheneuer an order under a preuentiue deter'.tion latu is challengecl one of the questions the court must ask in decidtng its legatity is tuas the ordinary lotu of the land sufficie nt tc deat uith the situatic'n? If the ansu.ter is in the affirmotiue, the dete;ntion order will be illec,rctl.

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Grav,: as the offences may be, they relato to cheating, creating fake passports, VISAs, etc. So, no inference of disturbance of cublic order can be drawn. These types of cases can certainly br: tried under the normal criminal^jtLsti<;e system. And, if convictod, can certainly be punished by the Court of law. Flence, there wils no need for the detaining authority to pass the detention order.

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Therr:fore, for the reasons stated above, the impugned detention order is legally unsustainable.

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6 (2011) 5 SCC 2.1.,.

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WP No.1116/2020

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In the result, the Writ Petition is allowed. The impugned detention order, dated 01.08.2019 passed by the 2nd respondent, and the conlirmation order, dated 09.t2.2019, passed by the 1"t respondent, are hereby set aside, The respondents are directed to set the detenu namely, Mr.Mohd.Shaik I1yas, S/o.Shera Musaliar, at liberty forthwith, in case he is no longer detained in the criminal cases, which have been so far registered against him.

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The miscellaneous petitions pending, if any, shall stand

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closed. There shall be no order as to costs.

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SD/.CH.VENKATESWAR ASSISTANT REGIST R ,TRUE COPY/i

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SECTION OFFICER

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To,

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The Principal Secretary. General Administration (Spl. (Law and Order) Department, State of Telanqana Secretariat. HvdeiaUaa.

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The Commissioner, of Policb and Addl District [/agistrate (Executive) Hyderabad City, Hyderabad.

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J. The 9gllerintendent, Central Prison Hyderabad, at Chanchalguda 4. One CC to Smt. R Sowmva Reddv Advocate IOPUCI E Two CCs to the Advocate Generai, High Court for the State of Telangana (OUT) b. Two CCs to Sri S. Sharath Kumar, Special Government pleader, Higi Court for' the State of Telangana (OUT)

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