Allowed

Ghousia Begum v. The State of Telangana

Telangana HC2 Aug 2021WP/7490/2021

Case brief

AI extract

What is this about?

The High Court of Telangana allowed a Writ Petition challenging a detention order against Sikander Khan. The Court held that the reliance on cheating offences constituted a 'law and order' problem rather than a 'public order' disturbance, rendering the preventive detention order legally unsustainable and directing release.

What did the court decide?

The detention order and confirmation order are set aside; the detenu is directed to be set at liberty forthwith.

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

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HIGH COURT FOR THE STATE OF^{TELANGANA AT HYDERABAD} (Special Original Jurisdiction)

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MONDAY,THE SECOND DAY OF AUGUST TWO THOUSAND AND TWENTY ONE

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PRESENT

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THE HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY

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THE HONOURABLE DR. JUSTICE SHAMEEM^AKTHER

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WRIT PETITION NO: 7490 OF 2021

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Between:

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Ghousia Begum, W/o.Sikandar Khan, Aged about 37 years, occ. Housewife,R/o.H No.¹ 9-2-1¹ /1 52, Do Pahadshah Dargah, C ha rmina r. Hyderabad - 500053

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...PETITIONER

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The State of Telangana, represented by^{its Prl. Secretary,General} Administration Department, Secretariat.^Hyderabad

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The Collector and District l\lagistrate,^{Hyderabad District}

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The Commissioner Police,^{HyderabadCity}

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The Superintendent, Central Prison, Chanchaiguda,^Hyderabad.

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...RESPONDENTS

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Petition under Article 226 of lhe^{Constitution of lndia prayingthat in the} circumstances stated in the affidavit^{filedtherewith, the High court may be pleasedto} issue a Writ of Habeas Corpus declaring^{the DetentionOrder passed by the 3rd} Respondent herein in S.B(1)No.26lPD-7lHYDl2021,^{dated 30/01/2021as approved} by the 1st Respondent in G.O.Rt.No.316,^{General Administration (Special Lawand} order) Department, dated o8lo2l2o21^{as arbitrary, illegal andu nconstitutionaland} consequen y direct to release the husband of^{the Petitioner, Sikander Khan,s/o,Late} Suleman Khan, aged about 40^years, Occ.^{videographer, R/o.H No.19-4-279lDl3BBlz'} Near Deccan Bakery, Teegalakunta,^{tr,4ustafaNagar, Hyderabad presently residing at} H. No.1 9-3-294/A/36, Vattepally, Fathima Nagar,^{Falaknuma, Hyderabad who is now} lodged in Central Prison, Chanchalguda, Hyderabad.

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Counsel for the Petitioner:M/S. BlBl^{AYESHA MOHAMMED}

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Counsel for the Respondents: SRl. G. MALLA^{REDDY, AGP FOR HOME}

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ADDL. ADVOCATE GENERAL

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The Court made the following:

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

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WRIT PETITION No. 7490 0F 202t

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ORDER: (Per the Hon'bie Dr, Justice Shameem Akther)

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Smt. Ghousia Begum, the petitioner, has filed this Writ Petition on behalf of her husband, Sikander Khan, S/o. late Suleman Khan, the detenu, challenging the detention order vide SB(I).No.26lPD7/l1YD/2021 , dated 30.01.2021, passed by the respondent No.3Commissioner of Police, Hyderabad City, whereby, the detenu was detained under Section 3(2) of The Telangana Pre/entive Detention Act, 1986 (Act 1of 1986), and the consequential crnfirmation order vlde G.O.Rt.No.762, General Administration (Spl. (Law & Order)) Departnlent, dated 27.03.2021, passed by the respondent No.1Principal Secretary to Government, General Administration Department, Government of Telangana.

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Heard the submissions of Ms. Bibi Ayesha Mohammed, learned counsel for the petitioner, Sri G. Malla Reddy, learned Assistant Government Pleader for Home representing the learned Additional Advocate General for the respondents, and perused the record.

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3, The case of the petitioner is that by relying on four criminal cases registered against the detenu in the year 2O2O viz., Crime Nos.186 of 2O2O and 187 of 2020 of Kalapathar Police Station, Crime No.367 of 2020 of Chandrayangutta Police Station and Crime No.95 of 2020 of Shahalibanda Police Station, the responCent No.3 passed the impugned detention order, dated 30.01.20.t1. According to respondent No.3, apart from four crimes relied upon by the detaining authority, the detenu was involved in four other crirnes committed in

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the years 2014,2076 and 2017. According to respondent No.3, the detenu is a 'White Collar Offender', as he has been habitually committing the offences of cheating the people by promising employment abroad by taking huge amounts and providing them fake and fabricated Visa and other documents in the limits of Hyderabad Police Com missionerate, thus creating large scale fear and panic among the general public and thereby, acting in a manner prejudicial to the maintenance of public order, apart from disturbing the peace, tranquility and social harmony in the society, With a view to prevent the detenu from acting in a manner prejudicial to the maintenance of public order, the impugned detention order, dated 30.01.2021, was passed, Subsequently, the detention order was confirmed by the respondent No.1, vide G.O.Rt.No.762, dated 27.03.2027. Hence, this Writ Petition before this Court.

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Ms. Bibi Ayesha lYohammed, learned counsel for the petitioner, has raised the following contentions before this Court:

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Firstly, that relying on four crimes registered against the detenu in the year 2020, the impugned detention order is passed

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Secondly, 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 Indian Penal Code, Thus, there was no need for the detaining authority to invoke the draconian preventive detentron law Hence, the impugned orders tantamount to colourable exercise of power.

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Thirdly, the detenu was granted conditional bail in all the crimes relied upon by the detaining authority and rereased from jail on 17.10.2020. The detenu has been complying with the conditions imposed while granting ba il.

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Lastly, the impugned detention order has been passed in a mechanical manner without proper application of mind. Already criminal law was set into motion against the detenu. preventive detention cannot be made a substitute to punitive detention. The detaining authority has to be extremely careful while passing the detention order, srnce the detention ipso facto adversery affects the fundamental right and personal liberty enjoyed by the detenu under Article 2L of the Constitution of India. Thus, the impugned orders are legally unsustainable and ultimately, prayed to allow the Writ Petition, as prayed for.

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5' on the other hand, the rearned Assistant Government pleader for Home representing the respondents would contend that the detenu is a 'White Collar Offender, and he has been habitually committing the offences of cheating innocent people in an organized manner promising to provide employment abroad, The detenu has taken huge amounts from the innocent people ancl provided them fake and fabricated visa and other documents. The series of crimes allegedly committed by the detenu were sufficient tc, affect the even tempo of the society and create a feering of insecuritv in the minds of the people at large, All the mandatory provisions and the safeguards envisaged under the constitution of india were strictiy foilowed whire passing the impugned detention order and hence, the impugned detention order does not suffer from any illegality or impropriety.

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Further, the Advisory^{Board,in its review rneeting, upon hearingthe} detenu and the concerned^{investigating officials and uponconsidering} the entire material^{placed beforeit, renderedits opinionthat thereis} sufficient cause for detention^{of the detenu.Subsequently,the} Government confirmed the^{impugned detention order vide} G.O.Rt.No.762, General^{Administration(Spl. (Law & Order)),dated} 27.03.2021. Since the^{detenue got bail in all the four crimesrelied} upon by the detaining^{authority,the apprehensionof the detaining} authority that there^{is imminentpossibilityof the detenu indulgingin} similar offences,^{is not misconceived. 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 sides, the point that} arises for determination^{in this Writ Petition is:}

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"Whether the impugned detention^order,dated 3O,O7,2027/^{passedby the respondent No'3, and} the consequential^{confirmation order, dated} 27,O3.2O27t^passed by the^{respondentNo'7, are} liable to be set aside?"

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POINT:

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In catena of^{cases, the Hon'ble SupremeCourt hadclearly} opinedthatthereisavastdifferencebetween"lawandorder"and '.public ordei,,. The offences committed^{against a particular individual} fall within the ambit^{of "law and order" and when the public at large} is adversely affected^{by the criminalactivities of a person,such} activities of that^{personare said to disturb the publicorder'} Moreover, individual^{cases can be dealt with by the criminaljustice} system.Therefore,thereisnoneedforthedetainingauthorityt0

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invoke the draconian preventive detention laws against an individual. Hence, according to the Hon'ble Apex Court, the detaining authority should be wary of invoking the immense power under the Act.

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In 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. It was observed that every breach of public peace and every violatron of raw may create a'law and order'problem, but does not necessarily create a problem of 'public order'. The distinction has to be borne in mind in view of what has been stated in the grounds of detention.

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In Kanu Biswas v. State of West Bengat:, the Hon,ble Apex Court, while discussing the meaning of word 'public order,, held that the question whether a man has onry committed a breach of 'raw and order' or has acted in a manner rikery to cause a disturbance of the 'public order" is a question of degree and extent of the reach of the act upon the Society.

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In the iitstant case, the detaining authority basing on four criminal cases viz., Crime Nos.1g6 of 2O2O and 187 of 2020 of Kalapathar Police station, crime No.357 of 2o2o of chandrayangutta Police station and crime No.95 of 2o2o of shaharibanda porice Station, registered against the detenu, has passed the impugned detention order. we shail present them in a taburar form the date of occurrence/ the date of registration of FiRs, the offen.es complained of and their nature, such as ba ila ble/non-baila ble or cognizable/noncognizable.

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AtR i 966 SC 740 '^(1972).lqsc ss1

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st. No,	CrimeNo	Dateof Occurrence	DateoT- registration ofFIR	C)tfences	Nature
1	186/20 20of KalapatharPS	Prrorlo 0708.2020	0708.2020	Sectrons^-420& .106orIPC	Coqrrizable/ Non bailable
2	L87/2020of KalapatharPS	Priorto 08.08.2020	08.082020	Sections420& 406 otIPC	CoqniTable/ Non^-bdildble
L]	367/2020ot Chandrayanqutta PS	Priorto 0808.2020	08.08.2020	Section420of IPC	Cognrzable/ ll1'1'*.
4	95/2020 ot ShahalrbandaPS	01.09.2019	20.08.2020	_ Section420 of IPC	_ Cognizable/ Non-bailable l

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As seen from the material^placed on^{record,all the crimes} relied upon by the detaining authority for^{preventively detaining the} detenu relate to cheating and^{criminal breach of trust. The detenu} was arrested in connection with the alleged^{offences and} subsequently he moved bail^{application in all the crimesand the} Courts concerned^{granted conditlonal bail to him. The conditional} order of bail restricts the^movement of^{the detenuand requires him} to appear before the officer^{concerned periodically.As per the} submissions made by the^{learned counsel for the petitioner,after} release on conditional bail, the detenu^{has not violated the bail} conditions. Under these circumstances,^{the apprehension of the} detaining authority that the^{detenu would indulge insimilar} 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 Prosecutoraboutthe} conduct of the detenu and to^{handover the entire caserecord} available against the detenu.^{The police are supposed to be vigilant} in collecting the whole data against the^{detenu and furnishthe same} to the Public Prosecutor/Additional^{Public Prosecutorto defeat the bail} application/s of the detenu.^{In the instantcase, since the detenu is} ,eieiieO on bail, in the event^{if it is found that the detenu is involved}

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(

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in further crimes, the prosecution can apprise the same to the Court concerned and seek cancellation of bail. Moreover, the criminal law was already set into motion against the detenu. Since the detenu has allegedly committed offences punishable under the indian penal Code, the said crimes can be effectively dealt with under the provisions of the Indian penal code. The detaining authority cannot be permitted to subvert, supplant or substitute the punitive law of land, by ready resort to preventive detentron,

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Here, it is apt to state that acts which are similar in nature, but committed in different contexts and circumstances, might cause different reactions. In one case, it might affect specific individuars only, and therefore wourd amount to 'raw and order probrem, onry, while in another, it might affect the pubric order. some infractions of law may lead to disturbance of^.law and order,, but every infraction of law does not necessarily result in'public disorder,. In the instant four crimes, grave as the offence may be, in the given circumstances of the case, they are committed against particular individuals and not the general public at large. Hence, no inference of disturbance of public order can be drawn. The subject cases can certainly be tried under the normal criminal law, and if convicted, can certainly be punished by the Court of raw. Thus, these cases do not falr within the ambit of the words "pubric order" or "disturbance of public order,,. Instead, they fall 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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For the reasons stated above, the impugned orders are legally unsustainable and are liable to be set aside.

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1 4. In the result, the^{Writ Petitionis allowed.The impugned} detention order vide SB(l).^{No. 25i PD-7} /NYD /^{2021,dated 30,01.2021,} passed by the respondent No.3 and the consequential^confirmation order vide G.O.Rt.No.762, General^{Administration (Spl. (Law &} Order)) Department, dated^{27.03.2021,passed by the respondent} No.1, are hereby set aside.^{The respondentsare directed to set the} detenu, namely, Sikander^{Khan, S/o' late Suleman Khan,at liberty} forthwith, if he is no longer^{required in any other criminal case.}

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Miscellaneous^{petitions pending in this Writ Petition,if any,}

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shall stand closed.^{There shallbe no orderas to costs.}

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SD/.K.ONESIM ASSISTANT REGISTRAR ,TRUE COPY'

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To,

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SECTION OFFICER ^--"

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