Dismissed

Naresh Singh v. The State of Telangana and 2 Others

Telangana HC5 Mar 2020WP/502/2020

Case brief

AI extract

What is this about?

The High Court of Telangana dismissed a writ petition filed by the brother of a detained individual challenging a preventive detention order passed under the Telangana Prevention of Dangerous Activities Act. The Court held that drug peddling prejudices public order and upheld the detention order despite bail grants, finding the detention authority acted within its jurisdiction.

What did the court decide?

The writ petition was dismissed with no order as to costs.

Naresh Singh Vs The State of Telangana and… — Pension and Retirement Benefits | Telangana HC (2020)

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HIGH COURT FOR THE STATE OF TELANGANA (Special Original Jurisdiction)

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THURSDAY ,THE FIFTH DAY OF I\4ARCH TWO THOUSAND AND TWENTY

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PRESENT

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THE HON'BLE THE GHIEF JUSTICE RAGHVENDRA SINGH CHAUHAN AND

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THE HON'BLE SRI JUSTICE A. ABHISHEK REDDY

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WRIT PETITION NO: 502 OF 2020

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Between:

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Naresh Singh, S/o Late Eshwsar Lal, aged 49 years, occu Private Teacher, r/o H No.13-1-1086, Bairamgalli, Uppal Dhoolpet lt/angalhat, Hyderabad.

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...PETITIONER

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AND

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The State of Telangana, rep by its Principal Secretary G A D ( Law and order ) Secretariat Hyderabad.

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The Commissioner of Police and Additional District lt/agistrate ( Executive ), Hyderabad District.

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The Superintendent, Central Prison, Chenchalguda, Hyderabad.

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...RESPONDENTS

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Petition under Article 226 o{ lhe Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be^pleased to issue a Writ order or direction more particularly in the nature of writ of HABEAS CORPUS directing the respondents to release the detenue forthwith by settrng aside the detention order passed by the 2nd respondent vide proceedings SB(1) No 30BlPD-2lHydl20'19 dated 3011212019 declaring the order as illegal, null and void as it is contrary to the Art 21 of the Constitution of lndia.

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Counsel for the Petitioner: SRl. CH. DHANAMJAYA

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Counsel for the 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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HC.I & AAR.] WP No.5O2 of 2O2O

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ORDER: (Per^'-1 L,: Hon'ble Sri Justice A.Abhishek Reddl )

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Naresh -q,ingh, the brother of the detenu viz., I\lanmohan Singh, has fjled the present Writ Petition, ch,rlle:-rging the detention order:, dated 30.12.2019 passed by the Cornmissioner of Police, Hyderabad City, the respondent No.2, and tht: approval order dated 03.01.2020 passed by Special Chief Secretary to Government (t)oll), the respondent No. 1. By the forrner order, Manmohan Singh was detained under Section 3(2) of the Telangana Prr:vention of Dangerous Activities ol Bcotleggers, Dacoits, Drug^-{ )ffenders, Goondas, Immoral Traf hc Offenders, Land-Grabber:;, Spurious Seed offenders, Insecticide Offenders, Fertilizer Offenders, Food Adulteration Offenders, Fake Document offenders, Scheduled Commodities Offenders, Forr:st Offenders, Gaming Offer.<lers, Sexual Offenders, Explosivt:,clubstances Offenders, Arr:,s Offenders, Cyber Crime Offenders {* White Collar or Financial^(-)ffenders Act, 1986 ("the Act", for s]rort). By the latter order, the respondent No.1 has approved the Cete:rtion order of the detenu.

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Briefly, the facts of the case are that the colice had registered two cases against the detenu under the, provisions of Narcotic Drugs and Psychotropic Substance Act ('the NDPS Act', for short) dun:rg the year 2019. Relying on Crime No.157/2019 of Asifnagar Poli,:e Station, registered for the offence u nrler Section 8(c) r/w 20(b (ii) (c) of NDPS Act, and Crime N:.3Ii5 l2Ol9 of Prohibition & Excise Station, Dhoolpet, registered for the offence under Section 8(c) r/,w 20(b) (ii) (B) ol the NDPII Act, the ... Commissione: of Police, Hyderabad City, passed a rleten tion order

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HCJ & AARJ wP No.502 of 2020

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on 30.12.2019 against the detenu. According to the respondent No.2, since the detenu was peddling "Ganja", he fa1ls under the definition of "drug offender" as defined in Clause (f) of Section 2 of the Act. Since he has been repeatedly violating the provisions of the NDPS Act, since peddling of Ganja adversely affects the youth, his conduct has become prejudicial to the maintenance of public order. Moreover, while in Crime No.l57 /2019 allegedly "Ganja" weighing 22 kgs., was recovered, and in Crime No.355 of 2Ol9 , 2 Kgs of "Ganja" was recovered from the possession of detenu and his associates. Thus, the amount of "Ganja" being carried by the detenu was on higher side. Thereby, making the detenu as a potential threat to the maintenance of public order. Lastly, the detenu was granted bail in both the crimes. Therefore, in order to prevent the detenu from disturbing the public order, the said preventive detention order was passed by the respondent No.2. The said preventive detention order was subsequently approved by the respondent No.l by its order dated 08.01.2020. Hence, the present habeas corpus petition before this Court.

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

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Mr.Challa Dhanamjaya, the learned counsel for the petitioner, has raised the following contentions before this court:

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Firstly, the two cases registered against the detenu are under a special Act namely, the NDPS Act. Therefore, the detenu can be tried, convicted, and sentenced under the provisions of the

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HCJ & AAIIJ \VP No.5O2 of 202o

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said Act. Henc(r, the draconian law of preventive detonti ln should not have been invoked against the detenu.

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Lastly, there is a vast difference between the "lzrw ztnd orde/' and "public ord er". While a "law and order" case adversely affects an individual, a "public order' case adversely aflects a large segment of the society. The alleged sale of drug does not adversely affect a large segment of society. Therefore, mere sale of drugs does not amor.rnt to an act "prejudicial to the mair)tenance of a public order".^'Iherefore, the respondent Nos. I anrl 2 were not justified in pass,ing and confirming the preventive del:ntion order.

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On the other hand, Sri S. Sharath, the lezrrned Special Government I)leader, has submitted the follou,ing counterarguments:

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Firstly, rr:lying on the case of Haradhan Saha v. 'fhe State of West Bengal and othersl, the learned counsel has; plt:aded that there is a vast difference between "punitive detention" and "preventive del.r:ntion". While under a punitive deten tion, a person is detained for an alleged olfence already committed, for which he has been con.ricted and sentenced, preventive dr:tertion is a precautionary. power exercised in reasonable anti:ipe.tion of a person likely t -r commit an offence, if he were not p :eve nted from doing so. Such a detention may or may not relate to:rn cffence. An order of prevr:ntive detention may be made befr;re or during prosecution. Slrch an order may be made with or without prosecution or in anticipation or after discharge or :ven after

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'^{AIR1974SC2151}

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acquittal. Therefore, the pendency of a prosecution is no bar to an order of preventive detention. Hence, mere pendency of two criminal cases against the detenu, would not prevent the detaining authority from passing the detention order. Secondly, relying on the case of Arun Ghosh v. State of West Bengalz, the learned counsel has pleaded that what in a given situation may be a matter covered by "law and order", on account of its "impact on the society" may really turn out to be one of 'public order'. Relying on the case of Kanu Biswas v. State of West Bengal3, the learned counsel has pleaded that the test to be applied is: "Does the act lead to disturbance of 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 society undisturbed?"

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Thirdly, according to the learned counsel, the free sale of drugs not just impacts an individual, but most importantly, adversely affects the society at large. For, the youth gets caught in the trap of drug addiction, begins to disobey the law, potentially begins to commit petty crimes, in order to sustain constant supply of drugs to himself/ herself, and eventually becomes physically and financially a burden on the society itself. Therefore, the sale of drugs by drug offender adversely affects a large segment of the society. Hence, it disturbs the maintenance of public order.

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Lastly, even if the detenu was granted a bail on the previous occasion, it has not prevented him from subsequently committing

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:, (1970) 1 SCC 98 I (1972) 3 SCC 83 r

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an offence under the NDPS Act. Therefore, the detain ing authority has reached a subjective satisfaction that if the deter.u vrere to be released on ba^jl. again he will indulge in the sarrre .rctivity of distributing arrd selling "Ganja' to the public at large. Tht: fact that he had increased the quantity of "Ganja" to be sold in the open market was a c.ear indication of his repetitive behaviour of selling "Ganja" to the 1'oung in the society. Hence, it is imperative that the detenu be det,rined by respondent No.2 and respcndent No.1. Therefore, the Iearned counsel has supported the impugned orders.

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In the ci, ;: of Ram Manohar Lohia v. State of Bihara, the Hon'ble Suprer:e Court has demarcated the distinr:tiorr between 'public order" and "law order'' in the following words

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'54. We haue here a case of detention under Rute 3O <tf the Defence oJ lndia Rules uhiclt permtts apprehen sion and detention of a person likelg to act in a manner pre.judtctnl to the maintenance of public order. It follou.ts that tf such a person [s not detained public disorder is the opprehe'nded result. Di::order is no doubt preuented by the maint,znuu:e of Iantt ancl ord.er olso but disorder is a broad spectntm uhich includes ot one end small disturbances and at the oth,?r the mosf se;ious and cotaclgsmic happenings. Does the expressir;t "public order' take in euery kind of dtsorders or only som<z of them? The ansu.ter fo this serues to dLstingu[sh "public orcier" from "law and order" because 'he latter undoubtedlg takes in alt of them. Public order if dishLrbed, must leacl to public disorder. Euery breach of the pzacet does not lead to public dborder. When tuto drunkards quaffel and ftght^{there b disorderbut not public disorder.Th,?Acan be} dealt wit4 under the pouers to maintain law and order but

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4 AIR 1966 SC 74(i

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HC.] & AAR.I WP No.5O2 of 2020

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cannot be detatned on the ground that theA were disturbing public order. Suppose that the tuo ftghters were of riual communittes and one of them tied to raise communal passions. The problem ls still one of latu and order but it raises the apprehension of public disorder. Other examples can be tmagined. The contrauention of law alLuays affects order but before it can be said to affect publtc order, it must affect the communitg or the public at large. A mere disturbance of lau.t and order leading to disorder is thus not necessailg sulficient 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 pubtic order but not in aid of maintenance of lau-t and order under ordinary ctrcumstances"

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In Arun Ghosh (supra), the Hon'ble Supreme Court has clearly opined that what in a giuen situation maA be a matter couered bg laut and order, on account of its impact on the society mo.A reallA tum out to be one of 'public order'. lt has further observed as under:

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"Take the case of assault on girls. A guest at a hotel may kiss or make aduances to half a dozen chamber maids. He mag annog them and also the management but he does not cause disturbance of public order. He may euen haue a fracas^{uith the} fiends^{of one of the girlsbut euen then it} would be a case of breach of latu and order onlg. Take another cose of a man uho molests uomen in lonelg places. As a resutt of his actiuities girls going to colleges and schoob are in constant danger and fear- Women going for their ordinary business are afraid of being uaglaid and assaulted. The actiuity of this man in its essential qualitA is not different from the act of the other man but in its potenttaltty and in tts affect upon the pubttc tranquilttg there is a uast dtfference. The act of the man u.tho molesls the girls in lonelg places causes a dishtrbance in the euen tempo of

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HCJ & AARJ U P llo.502 of 2020

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liuing ulhic:h is the first requirement of public or der. He disturbs tf,€ societA and the communi.tg. His act ntake.; all the uomen apprehenstue of their honour and he can be said to be cau:;ing disturbance of pubtic order and nc,' me-rela committing rndtuidual actions uhich may be taken r';te oJ bg the cimin tl prosea)tion agencies."

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ln the ca.e' of Madhu Limaye v. Sub-Divisional Magistrates, the Apex Court had clearly opined that acts rt'hich disturb public tranquility or are breaches of the peace should not be Tiuen a narrolt meaning, but should be giuen a liberal interpret,ztion. For the expression'in t,\e interest of public order' is uery wide anplitude. Io the case of Kan.u Blswas (supra), the Supreme Court ha: opined as under:

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"The^que:;tion uthether a man has onlg committed a brectch of tau-t and order or has octed in a manner tikelg t<; cause o disturbar.r of the public order ts a question of degree and the exter' of the reach of the oct upon the socie g. )\Lblic order is ruhat the French call 'order publtqut:' anul is somethin:t more tltan ordinary maintenance of lau, and order. Thc test to be adopted in determining u..theti.er c'.n. act affects klu' and order or public order, as laid doun tn the aboue co:;<t, is: Does it lead to disturbance of the :un=nt of life of thr: community so as Io amount to a disturba,tce o-f the public or:l.e:r or does tt affect merelg an indiuidual lenu[ttg the tranquilit .7 of the societg undtsturbed?"

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Therefore, while deciding the present cas;e, the above mentioned prin,:iples would necessarily have to be k:pt in mind.

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The me .race of drug abuse and the prolife rati,rn of drug trade is an ol)(ln secret. Drug abuse is not only t onf Lrred to the

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s (1970) 3 SCC 74:

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HCJ & AARJ WP No.502 of 2020

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urban centres, but has spread its tentacles even to the rural areas. It is common knowledge that drug problems are rampant amongst the young, be they from the urban or the rural area. The easy availability of drugs has warped the lives of the young men and women in our societSz. In order to ensure a steady supply of drugs, these young men and women are prone to commit petty offences. Thus, the substance abuse triggers of a series of petty crimes being committed by the young. On the other hand, the proliferation of drug strengthens the drug trade, the drug mafia and the underworld. The amount of money earned by the underworld fuels nefarious activities like prostitution and terrorism. Therefore, what may appear, on the surface, to be "a law and order problem", ona deeper analysis, emerges as "a public order" problem. Hence, u,hile dealing with preventive detention cases qua offences committed under the NDPS Act, the court has to be alive to the "impact of the offence" on the society at large.

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Thus, the learned counsel for the petitioner is unjustified in claiming that the two cases registered against the detenu should be seen as "1aw and order" problem and not as a "public order" one.

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In the cases of N. Meera Rani v. State of Tamil Nadu6 and

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Kamarunnissa v. Union of IndiaT, the Apex Court has observed that as preventive detention is intended to prevent a detenu from

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6 (1989) 4 SCC 418

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? (1991) 1 SCC 128

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acting in any mirrrner prejudicial to public order, ordinarilf it need not be resorted ;o, if the detenu is in custody, unless^.-he detaining authority has rca son to believe that the subsisting crrstc,ciy of the detenu may so.)n terminate on his being released cn bail. And having regard :o his recent antecedents the detenu is likely to indulge in similar prejudicial activities, unless he is prevented from doing so by an rrppropriate order of preventive detenti,rn.

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Moreover, the Hon'ble Supreme Court has ins.ste,l that the detention order must indicate Iirstly that the detainir: g a.rthority is well aware of t. re fact that the detenu is already ir a subsisting custody. Secon,lly, compelling reasons must be statr:d fcr passing the detention o:der while the detenu is already in custoriv. In case of Dharmendra Suganchand Chelawat v. Union r)f IndiaE, the Apex Court clt iined the expressioo^" compelling rea:;on:;" as there must be cogent reasons before the detaining authorir.y o e the basis of which it rn;rv be satisfied that (a) the detenu s I kely to be released from :ustody in the near future, (b) takin I in to accounr the nature of the antecedent of the activities of the d:tenu, it is likely that, aftr:r he is released from custody, he u'ould indulge in prejudicial ac,-ivities, and (c) it is necessary to detain him to prevent him lrom engaging in such activities. In the case of Kamarunnissa (supra), the Apex Court has held that if the authority pas:es an order, after recording his satisfacti:n, such an order cannot be struck down ostensibly on the ground that the proper cours(: lor the authority was to oppose the bail, and if bail

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8 (1990) I SCC 7.:,)

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were granted notwithstanding such opposition, the detaining authority could question it before a higher court.

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The learned counsel for the petitioner is unjustified in claiming that the detaining ,authority has not considered the existence of the bail orders passed in both the crimes. A bare perusal of the impugned order dated 30.l2.2ol9 clearly reveals that the detaining authority had, indeed, considered the bail orders. However, despite the bail orders in earlier crimes, the detenu had again violated the provisions of the NDPS Act in Crime No.157/2019 o[ Asif Nagar Police Station and Crime No.355 of 2079 of Prohibition & Excise PS, Dhoolpet. Therefore, even the privilege of bail was violated by the detenu. Therefore, considering the fact that the detenu was again released on bail in the above referred crimes, considering his previous conduct, the detaining authority was certainly^justified in concluding that "il is apprehended that there is an imminent possibility of his uiolating bail conditions and committing similar offences, u.thich u-tould be detrimental to public order and public health at large, unless Le is preuented from doing so bg an oppropriate order of detentiorl' .

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The learned counsel for the petitioner submitted that the conditions imposed in the bail order have not been considered and the detention order has to be invalidated on that ground. In support of his contention, he relied on the judgments reported in M.Ahmed.kuttg a. Unlon of Ind.lae and judgments of this Court in WP No.38082 of 2018, dated 18.02.2019. But a close scrutiny of the^judgment in M.Ahmedkuf,ty (supra) goes to show that the e (1990) 2 scc I

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issue before tht: Hon'ble Supreme Court was whether the detaining authorify consirlered the Supreme Court's interim orcler^jn pending appeal against High Court's quashing of a previous order of detention against the same detenu was considered or rot. While dealing with the said issue, the Hon'ble Supreme^(lourt held as under:

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"25. Non -consideration of the bail order u.tould ltaue, therefore, m this case amounted to non- application of ntind. In Union o.f India u. Manoharlal Norang I(1987) 2 S'CC 2411 the Suprenrc Court's inteim order in pending appea'. agoinst Higlt CourT's quashing of a preuious order of cLetet^Ltion against ltLe same detenu was not considered bg the detaintnll autLtoity while mak[ng the tmpugned subsequent order aga nst him. It Luas hetd that non-constderatic.tn o-f the interim order which constituted a releuant and inpo;1ant matenal tL)os fotal to the subsequent detention order on ground of ton-application of mind. If tle detaining ctuthortty considered that order one could not state uith de|inite.Less which u,a1t his subjecttue satbfaction utould haue reocted and it couid haue persuoded the detatning authoitg to dzsist from^{passutgthe order of detention."}

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In the said case, the Supreme Court was not de.rling with the issue regarding consideration of conditions impos:d in the bail order by the detaining authority. But that aspect wasi not brought to the notice of the Division Bench in WP No.38CtB2 of 2018, wherein the said order was passed basing on the order in WP No.32398 of 2018, dated 09.11.2018. The said distinction was not noticed by t)-re Division Bench in WP No.32398 of 2018. In the present case, a:, stated supra, the bail orders passec in favour of the detenu werrr considered by the detaining authority, \Vhen bail

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orders were considered, it cannot be said that the conditions imposed in the said order were not considered.

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Hence, for the reasons stated above, this court does not find any merit in the present writ petition. It is, hereby, dismissed. No order as to costs.

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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.VENKATESW ASSISTANT REGI