Allowed

Santhosh Singh v. The State of Telangana

Telangana HC23 Apr 2021WP/1691/2021

Case brief

AI extract

What is this about?

The High Court allowed a habeas corpus petition challenging a detention order against a drug offender. The court held that the single criminal act of peddling narcotics did not disturb public order but merely affected law and order. Relying on Supreme Court precedents, the court set aside the detention order granted under the Telangana Prevention of Dangerous Activities Act, 1986, and directed the

What did the court decide?

The detention order dated 18.11.2020 and the confirmation order dated 05.02.2021 were set aside. The detenu, Vasudev Singh, was directed to be set at liberty forthwith.

Santhosh Singh Vs The State of… — Constitutional and Fundamental Rights | Telangana HC (2021)

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HIGH COURT FOR THE SI r.,;;;,;i dli,;'j l,,l#"G,ili Ar HvDERABAD

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FRIDAY, IHE T\A ,*o ir-o r.,o.#JI IB, f,?p,fl"**,.

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PRESENT

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THE HON'BLE SRI JUSTIC rHE H.N,BLE ;; ;$il'* il;HT:,:::,"

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Betwee n:

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WRI TPE TITIO NN :169 10F 2021

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Ril'J t'j fl rfl S,1,."1t,..;mi', &n " t :lB: j,il, u;ild,;o.j; r..i va t e e m p, o ye e,

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AND

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,..PETITIONER

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1 The State of Telangana, Re

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32 Admrnistration r I ne ne superintendent commissioner of D;p,,,r,,i;i,,i of potice,Llvo"rroro Jails. &:il,]B!Jl:?j?fl,.,:;!JA?j: cn'encr,arguo;,,Hi,#t:T Ciiv n,vililfio Hyderabad o""ernment oi.tri"t Districr.Generar

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...RESPONDENTS

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Petition under Articre 226 0f the constitution of rndia praying that in the circumstances stated in the affidavit fired therewith, the High court may be preased to issue writ, order, direction particurarry in the nature of writ of Habeas corpus directing the respondents to produce the detenue by name Vasudev singh s/o.Guru Singh, aged about 26 years, Occ: private employee, R/o. H.No..14_10_1469, Machipura, Dhoolpet, Mangalhot, Hyderabad, before this Hon,ble court and set him at liberty by declaring the detention order 1811112020 issued in proceedings S B( I ). No. 228lP D-2t Hy D t 2o2o passed by the 2nd respondent and all the consequential orders passed by the^.1st respondent as illegal, arbitrary

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Counsel for the Petitioner: SRl. A. PRABHAKAR RAO

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Counsel for the Respondents: SRt c. MALLA REDDY, AGp FOR HOME FOR THE ADDITIONAL ADVOCATE GENERAL

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The Court made the following: ORDER

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THE HON'BLE^{SRI JUSTICEA' RA]ASHEKER REDDY} AND THE HON'BLE^{Dr' IUSTICE SHAMEEM AKTHER}

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WRIT PETITION^{No'1691OF 2021}

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ORDER:^{(Per the Hon'bleDr' lusticeShameemAkther)}

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Santhosh^{Singh, the petitioner,has filed this Habeas Corpus} petition on behalf of his^{brother,Vasudev Singh, the detenu'} challenging the detention^{order, dated 18.11.2020,passed by the} respondent No.2-Commissioner of^{Police,HyderabadCity,} wherein, the detenu was detained under Sub-Section^{(2) of Section} 3 of the Telangana Prevention of Dangerous Activities^of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land-Grabbers, Spurious Seed Offenders, insecticide Offenders, Fertilizer Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders & White Collar or Financial Offenders Act, 1986 and the consequential confirmation order, dated 05.02,2021, vide G.O.Rt.No.2B4, General Administration (Spl. (Law & Order)) Department, passed by the respondent No.1-Principal Secretary to Government, General Administration Department (pOLL), Government of Telangana.

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Heard the submissions of Sri A.prabhakar Rao, learned counsel for the petitioner, Sri G,Mallareddy, learned Assistant Government Pleader for Home representinq the learned Additional Advocate General for the respondents, and perused the record.

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ARR,J & Dr. SA.,, W.P.N-o. I 691 o1202 I

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Briefly, the facts of the case are that by relying on a single criminal case registered^{against the detenuin Crime No'106of} 2O2O of Habeeb^{NagarPoliceStation, the respondentNo'2-} CommissionerofPolice,HyderabadCity,passedtheimpugned detention^{order, dated 18.11.2020'Accordingto the respondent} No.2, the detenu^{is a'drugoffender'ashe has been indulgingin} illegal and^{highly dangerous activities in peddlingof Ganja' a} narcotic drug,^{among innocent people inHyderabadCity} endangering^{the lives of youth' causingirreparable damageto the} body^{organs, includingthe CentralNervousSystemand thereby'} crippling^{the mental and physicalhealthof the people addictedto} drugs^{and thus, acting in a manner prejudicial to the maintenance} of^{public order, apart from disturbing the peace'tranquiliry and} social^{harmony in the society' Hence' this Writ Petition before thls} Court.

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4 Sri^{A.PrabhakarRao' learned counsel for the petitioner'has} ra ised^{the followingcontentions before this Court:}

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Flrstly,^{that relying only on a single case registeredagainst} the detenu^{in the year 2020' the impugned detention orderis} passed.

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Secondly,^{the alleged case does not add up to "disturbingthe} public order"'^{They are confined within the ambit and scope of the} word^{"law and order"'Since the offence alleged is underthe} Narcotic^{Drugs and Psychotropic Substances Act' 1985(for short'} 'NDPS^{Act'), the detenu can certainly be tried and convicted under} the^{saidspecial law' Thus' there was no need for the detaining}

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I-

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AttR,.l^{& Dr' SA} 'l W. P.No^{l69t ol loll}

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authority^{to invokethe draconian preventive detentionlaws} Hence,^{the impugneddetention order tantamounts to colourable} exercise^of Power.

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Thirdly, the^{detainingauthority is not justified in invoking} draconian^{power under the preventivedetention laws'The} detaining authority^{has to be extremely careful while passing the} detention order.^{The detentionipso facto adversely affects the} fundamental rights^{and personal liberty enjoyed by the detenu} under Article 21^{of the Constitutionof India'}

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Lastly, the detaining authority^{has not applied its mind to the} facts and circumstances of the^{case, while passing the detention} order. The detenu was^granted conditional^bail by^{this Court vide} order, dated 10.77.2020,^passed in Crl.P.No.542L of 2020 and he was released from^jail on 11.11.2020. After release on bail, the detenu has not involved in any crime or criminal activity and he never violated the bail conditions. Therefore, the impugned detention order deserves to be set aside.

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On the other hand, Sri G,tr4alla Reddy, learned Assistant Government Pleader for Home, appearing on behalf of the respondents, would submit that the crime allegedly committed by the detenu was sufficient to cause a feeling of insecurity in the minds of the people at large. Since the modus of committing the crime was peddling narcotic drugs among the innocent people, it has created sufficient panic in the minds of the general public. frlrrcr, the respondent No.1 has confirmed the impugned detention order vide G.O.Rt.No.2B4, General Administration

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.,1

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w.p.No ARR.J I6qlofl0ll& Dr.SA.r

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(Special (Law and Order)), Department, dated A5.02.2021. Therefore, the detaining authority was legally justified in passing the impugned detention order and ultimately, prayed to dismiss the Writ petition.

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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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"Whether the detention order, dated 1g.11 .2O2O, passed by the respondent No.2 and the consequential confirmation order, dated O5.O2.2O21, 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 ou ra b le Supreme Court had clearly opined that there ls a vast difference between ',law and order" and "public order,,. The offences which are committed against a particurar individuar fail within the ambit of "raw and order". It is only when the public at large is adversely affected by the criminal activities of a person, the conduct of such a person is sald 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 aFfects the fundamental right of personal liberty, which is protected and promoted by Article 21 oF the Constitution of India. Hence, according to the Honourable Apex Court, the detaining authority should be wary of invoking the immense power under the Preventive Detention Act.

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ARR.J^{& Di'SA'J} W.P.No.1691^{of 2021}

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B.^{ln the caseof Ram Manohar Lohia v' State of Biharl' the} Honourable^{SupremeCourt has' in fact' deprecatedthe invokingof} the^{preventivelaw in order to tackle a Iaw and orderproblem'The} Honourable^{Supreme Courthas observed as under:}

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"54, We have^{here a caseof detention underRule30 of} theDefenceoflndiaRuleswhichpermitsapprehensionand detentionofapersontiketYtoactinamannerprejudicialto the maintenance^{of public order' It followsthat if sucha} person is not detained^{pubtic disorder is the apprehended} result. Disorder^{is no doubt prevented by the maintenance} of law and order^{also but disorder is a broadspectrum} which inctudes at^{one end small disturbances and at the} other the most serious^{and cataclysmichappenings'Does} the expression "public^{order'takein every kind of disorders} or only some of them?^{The answer to this servesto} distinguish "public order"^{from "law and order"because the} latter undoubtedly takes in att^{of them' Public order if} disturbed, must tead to^{public disorder. Every breachof the} peace does not lead to pubtic 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^{groundthat they} were disturbing public order. Suppose that the two fighters were of rival communittes and one of them trted to raise communal passions. The^problem is still one of^{law and} order but it raises the apprehension of^pub!ic 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

AIR 1966 SC 740

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ARR.J &, Dr ,r , W. C. lv" I aq I .p -.o2'l

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order but not ln aid lntena nce of law and order under ordinary rirrr -rta nc,oJr.ma

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9. In the case of Kanu Biswas v. State of West Bengal2, the

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Honourable Supreme Court has opined as under;

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"The question whether a man has only committed a breach of law and order or has acted in a manner tikety to cause a disturbance of d e s re e a n d t h e e x te n t :" r ;":: ;*;' : ; " " "^{17' :';::, ;:} society. public order is what the French call ,order publique, and is something more than ordinary maintenance of raw and order. The test to be adopted in determining whether an act affects law and order or public order, as taid down in the above case, is: Does it tead 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 individuat leaving the tranquility of the society undisturbed?,,

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In the present case, the detaining authority relied on a single case vide crime No.106 0f 2o2o of Habeeb Nagar porice station, for preventively detaining the detenu. We shall present it in a tabular form the date oF occurrence, the date of registration of FIR, the offences complained of and their nature, such as bailable/nonbailable or cognizable/non-cognizable.

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s. No,	CrimeNo.	Dateof Occurrence	Dateof registration ofFIR	Offence	Nature
				Section 8(c)
1	tO6/2020 of HabeebNagar PS	1.3.O7.2020	73.07.2020	20(b)(ii)(c)o NDPSAct	ognizable/ Non- bailable
				t 145kgs ofGanJa

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' 1t9zz1^{e scc83 t}

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ARR,J^{& Dr'SA'J} W.P.No^{1691 of 2021}

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11.^{Itis appropriate to refer the decision rendered by the} State^of Honourable^{SuPremeCourt in VijaYNarainSingh} BihaF,wherein^{it was held that a single act or omissioncannot be} characterized^{as a habitual act or omission because'the idea of} 'habit' involves^{an element of persistence and a tendency to repeat} the acts or^{omissionsof the same class or kind' if the acts or} omission^{in questionare not of the same kind or even if they are of} the same kind when^{they are committed with a long interval of} time between them,^{they cannotbe treatedas habitual ones'}

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As seen from the^{materialplaced on record, the detenuwas} arrested in connection^{with Crime No.106 of 2020 of Habeeb Nagar} Police Station on L3.07.2020 and^{remandedto judicial custody.} Subsequently, the detenu moved six bail^{petitionsbeforethe Court} of I Additional Metropolitan Sessions Judge, Hyderabad, and^the same were dismissed. Thereafter, the detenu moved bail application before this Court and the same was allowed on certain conditions vide order, dated 70,17.2020, passed in Criminal Petition No.5421 of 2020, Even assuming that ball conditions are violated by the detenu, nothing prevents the prosecution from seeking cancellation of bail. It is needless to state that the detenu is under surveillance of the Court and the police. In the event, it is found that bail conditions are violated by the detenu and he is involved in further crimes, the prosecution can apprise the same to the concerned Court and seek cancellation of bail. The apprehension of the detaining authority that since the detenu was granted bail, there is imminent possibility of his committing similar \ r 1^ros+1 : sec14

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ARR,,J & Dr. SA.,l W P.No. I6s I oI 202l

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offence, which is detrimentai to ihe public order, unless he is prevented from doing so by an appropriate order of detention, js highiy mispiaced. it is the bounden duty of the police to inform the learned public prosecutor about the conduct of an accused and to handover the entire case records, available against the detenu, The police ought to have been vigilant ln collectin g the whole data against the detenu and to furnish the same to the public Prosecutor/Additiona I public prosecutor to deFeat the bail application/s of the detenu.

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13, As held in Vijay Narain Singh,s case (3 supra), 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, Moreover, when bail is granted for the ofFence alleged under Section B(c) r/w 20(b)(ii)(c) of NDPS Act, the matter ought to have been carried before apprcpriate Court for ca nce llation of ba il.

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\4. Grave as the offence may be, it relates to^peddling of narcotic drugs. So, no inference oF disturbance of^public order^can be drawn. The subject case can certainly be tried^{under the special} law. Thus, this 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.}

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Therefore, for the reasons stated above,^{the impugned} orders are legally unsustainable

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9 ARR^{J & Dr'SA'J} W. P. No,1691^{of ?021}

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In^{the result, the Writ Petitionis allowed' The impugned} detention^{order Vide SB(I) No.22BlPD-Z/ilYDl2o2o,dated} 18.11.2020,^{passedby the respondentNo 2' and the consequential} confirmation^{order vide G.O.Rt.No.284, GeneralAdministration} (Spl. (taw & Order))^{Department, dated 05'02 2021' passed by} respondent No.1,^{are hereby set aside' The respondents are} directed to set^{the detenu, namely Vasudev Singh,S/o GuruSingh,} at liberty forthwith, if^{he is no longer requiredin any othercriminal} case.

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The Miscellaneous Petitions, if any,^pending in^{this Writ}

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Petition shall stand closed. There shall be no order^{as to costs,}

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SD/. T.TIRUMALA DE VI A"ISTANT RTSTRAR

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//TRUE COPY//

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SECTION OFFICER

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To, 1. Ij^:,f^{rl:,frl.*cretary to Government, General Administration Department} {Holl). State ot Telangana. Secretariat. Hyderabad. 2. The Commissioner of Police, Hyderabad City, Hyderabad District 3. The S^tperintendent of Jails, Chenchalguda,'HyOlraOJO, Hyderabad - - District. 4.R Two One CCs CC to to Sri the A. Advocate General,^prabhakar Rao. Adv6cate ICjpUCi High Couh toi tnL State of Telangana at Hyderabad. [OUTI

6 Two CD Coples

CHR

HIGH^COURT

DATED:2310412021

ORDER

W.P.No.1691 of 2021