Allowed

Manesh Kumar v. The State of Telangana and 2 others

Telangana HC5 Feb 2021WP/20541/2020

Case brief

AI extract

What is this about?

The High Court of Telangana allowed a Writ of Habeas Corpus challenging a preventive detention order. The Court quashed the order, holding that the detention was arbitrary as it was based on a single offense affecting individuals rather than public order, and the authority failed to apply mind considering the gap between bail release and detention.

What did the court decide?

The impugned detention order dated 16.10.2020 and consequential orders were set aside. The detenu is directed to be set at liberty forthwith, unless otherwise required in a criminal case.

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

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

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FRIDAY, THE FIFTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY ONE

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PRESENT

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THE HON'BLE SRI JUSTICE A. RAJASHEKER REDDY ANO THE HON,BLE DT. JUSTICE SHAMEEM^AKTHER

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WRIT PETITION NO: 20541 OF,2020

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Between:

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Manesh Kumar, S/o. Nandhi Kishore Sharma Aged about 32^{years, Occ.Private} employee R/o. H.No . 731/S, Kherakhurd, [,4CD^{primarySchool, North,West} Delhi-110082.

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...PETITIONER

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AND

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1 The State of Telangana, Rep. by its^Principal Secretary^{(Political) General} Administration Dep-artment, Secretariat, Telangana,^Hyderabad.

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2 The Commissioner of Police-cum- Additional^{District Magistrate,Rachakonda,} Ranga Reddy District.

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The Superintendent, Central Prison, Cherlapalli,^{/edchal-Ranga Reddy District.}

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...RESPONDENTS

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Petition under Article 226 ol lhe Constitution of^{lndia praying that in the} circumstances stated in the affidavit^{filed therewith, the High Court may be pleased to} issue writ order or direction more^particularly one^{in the natureof writ of Habeas} Corpus by declaring the order of the detention^passed by^{the 2nd respondentvide} proceedings No. 53//PD CELL/CCRB/RCKDI2020, dt. 1611012020 exercising^his powers conferred under sub section (2) of section 3 of the^{"Telangana prevention} of Dangerous Actives of Bootleggers, Dac6its,^{Drug-Offenders, Goondas, lmmoral} Traffic offenders and land grabbers Act 1986^(Act 1 of^19BG) to declare^{the same the} same as arbitrary, illegal, unconstitutional and contrary^{to the provisions of Act 1 of} 1986 and against the law laid down by the Apex Court^{in this regardandfurther} consequentially direct to release the^proposed detenue viz.,^{Rajnesh Ranjan,} S/o. Nanda Kishore Sharma, aged 24^{years, R/o. Plot} No.^{502, Kamadhenu} Apartment, Kowkoor, Alwal l\rlandal, tr/edchal District and^{nativeof JetkamliVillage,} Dharmapur Post, Vaishali District, Bhihar State, now^lodged at^{Centralprison} Cherlapalli, It/edchal- Ranga Reddy District, State of Telangana^{and to set him free} forthwith.

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lA NO: 1 OF 20

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Petit;on under Section^'151 CPC^praying that in the circumstances statedⁱⁿ the affidavit filed in support of the^petitlon, the High Court may be^pleased to suspend^the operation of the order of the 2nd respondent vide^{proceedings No. No.} 53/PD CELL/CCRB/RCKDI2)2), dt. 16-10-2020 of the^proposed detenue^{viz., Rajnesh} Ranjan S/o. Nanda Kishore Sharma, aged 24^years, R/o. Plot No. 502,^Kamadhenu Apartment, Kowkoor, Alwal Mandal, I,4edchal District and native of Jetkamli Village, Dharmapur Post, Vaishali District, Bhihar State, now lodged at Central^prison Cherlapalli, Niledchal- Ranga Reddy Distrlct, State of Telangana^pending disposal of the writ petition and^pass

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Counsel for the Petitioner: SRI S. SRINIVASA SHARMA Counsel for the Respondent No.1: GP FOR GENERAL ADMINISTRATION^DEPARTMENT Counsel for the Respondent Nos. 2&3: SRI G. MALLA REDDY, ASSISTANT GP FOR HOME

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The Court made the following: ORDER

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THE HON'BLE^{SRI JUSTICEA. RAJASHEKER REDDY} AND THE HON'BLE^{DT. ]USTICESHAMEEM AKTHER} t2

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ORDER:^{(PerHon'ble Dr' Justice ShameemAkther)}

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Mr. Manesh Kumar,^{the petitioner,has filed the present Habeas} Corpus^{petition,on behalf of his brother,Mr'RajneshRanjan'the} detenu, challenging^{the detention order, dated 16'10'2020' passed} by the Commissioner^{of Police,RachakondaCommissionerate'the} respondentNo.2,andtheconsequentialordersissuedbytheStateof Telangana,PrincipalsecretarytoGovernment(Political),General Administration Department,^{the respondentNo'1'}

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2'HeardthelearnedcounselforbothSidesandperusedthe record.

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3, Briefly, the facts^{of the case are that by relying on a singlecase} registered against^{the detenu in the year 2020, the respondent} No.2/CommissionerofPolice,RachakondaPoliceCommissionerate, passed the detention order^{dated 16'10'2020' According to the} respondent No.2,^{the detenuiS a .ImmoralTraffic offender, and that} he, along with his^{associates,was organizing prostitutionby} procuring girls from Maharashtra^{State through his agents and} organizing^{prostitutionclandestinely by acting as a leader/memberof} criminal^{gang to make easy money. With a view to preventthe} detenu from acting^{in a manner prejudicial to the maintenanceof} public order, the detention order,^{dated 16'10'2020, was passed'} The detention order^{was confirmedby the respondent No'1' Hence'} this writ^{petition before this Court.}

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ARR,J & W.P.No.20541 or

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)

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4, Sri S.Sreenivasa Sharma, the learned counsel for the petitioner, has vehemently contended that in the impugned detention order, the period of detention is not mentioned, which would adversely aFfect the right of life and personal Iiberty guaranteed under the Constitution of India, Though in the grounds of detention it was mentioned that several opportunities were afforded to the detenu to make representations and engage an advocate, but in fact, no such opportunity has been given. The detaining authority has not explained the grounds oF detention to the detenu in the language known to him. Moreover, the impugned detention order was passed basing on a single offence. The impugned detention order was passed mechanically and without application of mind. The alleged case does not add up to "disturbing the public order,,. It is confined within the ambit and scope oF the word "law and order,,. Since the offences alleged are under the Indian^penal Code and a special legislation, i.e., Immoral Traffic (prevention) Act, 1956, the detenu can certainly be tried and convicted under the penal Code and the said special legislation. Thus, there was no need for the detaining authority to invoke the draconian preventive detentign laws against the detenu. Hence, the impugned order tantamount to the colourable exercise of power. The impugned detention order is unsustainable and the same is liable to be set aside.

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On the other hand, Sri G.Malla Reddy, learned Assistant Government Pleader for Home appearing on behalf of the learned Advocate General for the respondents and would submit that the detenu is a 'Immoral Traffic Offender'. He along with his associates was organizing prostitution by procuring girls from Maharashtra State

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ARR,J & Dr'SAJ W.P.No.2054l of 2020

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throughhisagentsandorganizingprostitutionclandestinelybyacting as a leader/member^{of criminal gang, which is prejudicialto the} maintenance of^{public order.The order of detention together with} the grounds of detention^{and the material relied upon by the} detaining authority^{were supplied to the detenuin 'English' and 'Hindi'} languages. Further, after^{hearing the detenu and the investigating} officer, the Advisory^{Board opined that there is sufficient cause for} detention of the detenu.^{Sincethe detenu was exploitinginnocent} girls/women deceitfully as a member of the^{gang and causing wide-} spread contagious and sexually^{transmitteddiseases like HIV,} Syphilis, etc., and thereby^{endangeringpublic health at large, the} detainlng authority is legally iustified^{in passingthe impugned} detention order. Further,^{there is imminent possibilityof the detenu} indulging in similar activities^{again, which wouldbe prejudicial and} detrimental to the^{maintenanceof public order at large.Thereare no} grounds to grant the relief sought by the^{petitionerin this writ} petition 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 Petitionis:}

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"Whether the detention order, dated^76.7O.202O, passed by the respondent No.2 and the consequential orders passed by respondent^No.l 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 offgrces which are committed against a^particular

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ARR,J & W.P.No.2054l ol

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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 u nder the Act.

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B. In the case oF Ram Manohar Lohia v, State of Biharl, 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 detajned 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 publjc 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 malntain 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

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'^{AIR I 966 sc 740}

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i; Ez

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ARR,J &^DT,SAJ W.P.No.20541^o12020

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oublic order,^{it must affect the community or the public at} ffi:l:^{; #.e'iitirtl""t"or law and order leadinsto disorder} i! inu, not^{necessarilyiufficient for action under the Defence} of India^{Act but distr'lrbances which subvertthe publicorder} are. A District^{wagistiaie is entitled to take action underRule} 30(1)(b) to^{preventsuU'"rsion of public ordertrut not in aid of} malntenance^{or taw anJ oider under ordinary circumstances'"}

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9. In the case of^{Kanu Biswas v' State of west Bengal2' the} Supreme^{Courthas opinedas under:}

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"The^{questionwhether a man has only committed a breachof} taw ana^{order or has acted in a manner likely to causea} o:iirioun.u^{of the publlc order is a questionof degree and the} ;--t*[;iih"^{reach of the act uponthe society'Publicorderis} tii ir.r" irench^{call 'order publique' and is somethingmore} than ordinary^{maintenanceof law and order' The test to be} idoptea in^{determining whetheran act affects law andorder} ;;;'r;]; otJ""-ui^tuiaionin the abovecase' is: Does it lead io dirturbun.u^{of the current of life of the communityso as to} imount to^{a disturbanceof the publicorder or does lt affect} ;;;il an -inOiviarat leaving the tranquility of the societv undisturbed?"

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In the instant^{case, the detenuis said to be involved in a} solitary case^{in crime No.523of 2O2O of lawaharnagarPoliceStation} and the^{detainingauthority, relying upon the said crime' passed the} impugned^{detention order. We shall present it in a tabularcolumn} the date of^{occurrence, the date of registrationof FIR' the offences} complained of^{and their nature, such aS bailable/non-bailable or} cog niza ble/non-cog^{niza ble.}

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CrimeNo'	Dateof Occurrence	Dateof registration ofFIR	Offences	Nature
523/2O2Oof lawaharnagar PS	07.07.2020	07.o7.2020	Section370(A)^of lPCand Sections^3, 4, 5and7of Immoral Traffic (Prevention)Act, 1956	Cognizable Non- bailable

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ll. Here, it is appropriate^{to refer the decision} rendered bY^the State of Bihaf, Hon'ble rAPex Court^{in Viiay NarainSingh v'} '^{(tgzz) s scc831}

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ARR,J. W.P.No 2054I !

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wherein it was held that a single act or omission cannot 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 omissions of the same class or kind, if the acts or omission in question are 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 cannot be treated as habitual ones.

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In the instant case, a bare perusal of the impugned detention order clearly reveals that the first bail petition moved by the detenu was dismissed on 21.07.2020 and thereafter, he moved another bail petition and he was granted bail on 29.07.2020 and released from prison vide release order in Dis.No.749/2020, dated 29.07.2020. However, the apprehension of the detaining authority that since the detenu was already enlarged on bail, there is imminent possibility of his indulging in similar prejudicial activities unless he is prevented from doing so by an appropriate order of detention, 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 daia 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. In the instant case, the bail application of the detenu was allowed on conditions. Further, even if bail is granted, the prosecuting agency is always at liberty to move application for ca ncellation of bail.

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'iros+1^{: sccra}

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ARR,J &^Dr'SAJ W.P.No.2054t^of2020

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It is^{apt to state that the draconianpowerof preventive} detention,^{which instantlydeprives a person of his personal liberty'} forces a^{person to be kept in custodywithouta fair trial and' that too'} only on^{presumptlons and suppositionsHence' such powers should} be exercised^{with great care and caution'In the instant case' grave} as the^{offencesmay be, it has beencommitted againstparticular} individuals.^{So, no inference of disturbance of publicorder can be} drawn. The^{instantcase can be tried under the PenalCode and} special legislation'^{Even otherwise, there is no history of the detenu} being^{prosecutedfor the offencesunderSections370(A) of IPC and} Sections 3,^{4, 5 and 7 of ImmoralTraffic (Prevention)Act' 1956'} Further, the^{detenu was released from prison on bail on 29'07'2020} and the^{impugneddetention order was passed on 16'10'2020'ie''} about more^{than two and half months after the release of the detenu} from^{prison. During the said period, there are no attemptsor} commission of^{the offencesof the nature for which the petitioneris} being^{prosecuted'As per the submissions made on behalf of the} petitioner/detenu,^{bail was grantedon conditionsand those} conditions^{were not taken into considerationbefore passing the order} of detention.^{under these circumstances,there was no need for the} detaining authority^{to pass the detention order' The impugned} detention order,^{dated16.10'2020, suffers fromnon-applicationof} mind {Ref: Rekha^{v. State of TamilNadu throughSecretary to} Government^{& another (2011) 5 SCC 244)>' Therefore'for the} reasons stated^{above, the impugneddetentionorder is legally} unsustainable.

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*.".^351;".,. 8

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t4. In the result, the Writ petition is allowed. The impugned detention order vide No.53/PD-CELL/CCRB/RCKD/ZO2O, dated 76.10.2020, passed by respondent N0.2, and the consequential orders passed by respondent No.1 are set aside. The respondents are directed to set the detenu, namely Mr.Rajnesh Ranjan, S/o. Nanda Kishore Sharma, at liberty forthwith, if he is no longer required in any other criminal case.

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

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SD/.M.MANJULA ASSISTANT REGISTRAR

//TRUE COPY//

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SECTION OFFICER