Allowed

Javed v. The State of Telangana and 2 others

Telangana HC13 Jun 2022WP/12007/2022

Case brief

AI extract

What is this about?

The High Court quashed detention orders passed under the Telangana Preventive Detention Act against two individuals accused of dacoity. The court held that the offences fell within 'law and order' and could be dealt with under criminal law, making preventive detention unsustainable.

What did the court decide?

Detention orders set aside; detenus directed to be set at liberty forthwith.

Javed Vs The State of Telangana and 2 others — Pension and Retirement Benefits | Telangana HC (2022)

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THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER AND THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI

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WRIT PETITION Nos.12014 AND 12007 OF 2022

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COMMON ORDER: (Per Hon’ble Dr. Justice Shameem Akther)

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Though the petitioners in both these Writ Petitions are different, since the issue involved is one and the same, both the Writ Petitions are being taken up together and disposed of by way of this common order.

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W.P.No.12014 of 2022 is filed by Mr.Aslam Ansari, who is the brother of the detenu, namely, Mohd. Afzal, and W.P.No.12007 of 2022 is filed by Mr.Javed, who is the father of the detenu, namely, Mohd.Faizan. The petitioners herein filed the present Habeas Corpus petitions challenging the separate detention orders vide No.07/PD-CELL/CYB/2022 and No.08/PD-CELL/CYB/2022 of even date dated 31.01.2022, passed by the respondent No.2Commissioner of Police, Cyberabad Commissionerate, whereby, the detenus were detained under Section 3(2) of the Telangana Preventive Detention Act, 1986 (Act 1 of 1986), and the consequential confirmation orders vide G.O.Rt.Nos.952 and 951, General Administration (Spl. (Law & Order)) Department, of even date dated 02.05.2022, passed by the Chief Secretary to

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Dr.SA,J & JS,J W.P.No.12014 & 12007 of 2022

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Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana.

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Heard the learned counsel for the petitioners, learned Assistant Government Pleader for Home representing the learned Additional Advocate General appearing for the respondents in both the writ petitions and perused the record.

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Learned counsel for the petitioners would submit that the impugned detention orders of even date, dated 31.01.2022 were passed by relying on two crimes registered against the detenus viz., Crime Nos.608 of 2021 and 606 of 2021 of Shankarpally Police Station, Cyberabad Police Commissionerate. Subsequently, the impugned detention orders were confirmed by the Chief Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana vide G.O.Rt.Nos.952 and 951 of even date, dated 02.05.2022. 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 detenus 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 detention law.

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Dr.SA,J & JS,J W.P.No.12014 & 12007 of 2022

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Hence, the impugned orders tantamount to colourable exercise of power. Further, the bail applications moved by the detenus in crime No.608 of 2021 of Shankarpally Police Station were dismissed by the Court concerned. The detenus have not moved any bail applications in crime No.606 of 2021 of Shankarpally Police Station. Thus, the detenus continue to be in judicial custody. Despite the fact that the detenus are in judicial custody, the impugned detention orders have been passed against the detenus. The detaining authority, without appreciating the material on record, mechanically passed the impugned detention orders. There was no need for the detaining authority to invoke the draconian prevention detention law against the detenus. Hence, the impugned orders are legally unsustainable and ultimately, prayed to allow the writ petitions, as prayed for.

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4(i). On the other hand, the learned Assistant Government

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Pleader for Home appearing for the respondents supported the impugned orders and submitted that the detenus are ‘Dacoits’. They along with their associates had been indulging in dangerous activities such as dacoity with deadly weapons in the limits of Cyberabad Police Commissionerate and thereby creating large scale fear and panic and a feeling of insecurity among the general

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Dr.SA,J & JS,J W.P.No.12014 & 12007 of 2022

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public affecting the public order, apart from disturbing peace and tranquility in the society. The bail applications moved by the detenus in Crime No.608 of 2021 were dismissed by the Court concerned. Since the detenus moved bail applications in crime No.608 of 2021, the apprehension of the detaining authority that there is every possibility of the detenus again moving bail applications in crime No.608 of 2021 and filing fresh bail application in crime No.606 of 2021 and on release on bail, there is imminent possibility of their escaping to their native state Uttar Pradesh or remain absconding or commit more dacoities, is not misconceived. The series of crimes allegedly committed by the detenus were sufficient to cause a feeling of insecurity in the minds of the people at large. Since the modus of committing the crimes was dacoity, it created sufficient panic in the minds of the general public. Therefore, the detaining authority and the Government are justified in passing the impugned orders. The impugned orders are legally sustainable and ultimately, prayed to dismiss the Writ Petitions.

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In view of the submissions made by both the sides, the point that arises for determination in these Writ Petitions is:

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“Whether the impugned detention orders vide No.07/PD-CELL/CYB/2022 and No.08/PD-

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Dr.SA,J & JS,J W.P.No.12014 & 12007 of 2022

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CELL/CYB/2022 of even date dated 31.01.2022, passed by the respondent No.2, and the consequential confirmation orders vide G.O.Rt.Nos.952 and 951, General Administration (Spl. (Law & Order)) Department of even date, dated 02.05.2022, passed by the Chief Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangan, 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 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 criminal activities of a person, such activities of that person are 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. 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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7. In Ram Manohar Lohia v. State of Bihar¹ , the Hon’ble

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Supreme Court has, in fact, deprecated the invoking of the preventive law in order to tackle a law and order problem. It was

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1 AIR 1966 SC 740

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Dr.SA,J & JS,J W.P.No.12014 & 12007 of 2022

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observed that every breach of public peace and every violation of law 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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8. In Kanu Biswas v. State of West Bengal² , the Hon’ble Apex Court, while discussing the meaning of word 'public order,' held that the question whether a man has only committed a breach of ‘law and order’ or has acted in a manner likely 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 present cases, the detaining authority, basing on two crimes indicated above, had passed the impugned detention orders of even date, dated 31.01.2022. We shall present them in a tabular form the date of occurrence, the date of registration of FIR, the offences complained of and its nature, such as bailable/non-bailable or cognizable/non-cognizable.

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Crime No.	Date of Occurrence	Date of registration of FIR	Offences	Nature
				Section 395
608/2021 of Shankarpally PS	25.10.2021	25.10.2021	Section 395 of IPC	IPC - Cognizable/ Non Bailable

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2 (1972) 3 SCC 831

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Dr.SA,J & JS,J W.P.No.12014 & 12007 of 2022

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				Section 341 IPC - Cognizable/ Bailable
606/2021 of Shankarpally PS	23.10.2021	24.10.2021	Sections 341, 379 and 427 of IPC	Section 379 IPC - Cognizable/ Non Bailable
				Section 427 IPC –Non Cognizable/ Bailable

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10. As seen from the material placed on record, the crimes relied

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upon by the detaining authority for preventively detaining the detenus relate to Dacoity. The detenus were arrested in connection with crime No.608 of 2021 on 28.10.2021 and remanded to judicial custody and their arrest was regularized in crime No.606 of 2021 of Shankarpally Police Station through PT warrants. The bail applications moved by the detenus in Crime No.608 of 2021 were dismissed by the Court concerned. Under these circumstances, the apprehension of the detaining authority that since the detenus moved bail applications in crime No.608 of 2021, there is every possibility of the detenus again moving bail application in crime No.608 of 2021 and filing fresh bail application in crime No.606 of 2021 and on release on bail, there is imminent possibility of their escaping to their native state Uttar Pradesh or remain absconding or again indulge in similar prejudicial activities, is highly misplaced. It is the bounden duty of the Police to inform the learned Public

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Dr.SA,J & JS,J W.P.No.12014 & 12007 of 2022

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Prosecutor about the conduct of the detenus and to handover the entire case records available against the detenus. The police are supposed to be vigilant in collecting the whole data against the detenus and furnish the same to the Public Prosecutor/Additional Public Prosecutor to defeat the bail application/s of the detenus. Moreover, criminal law was already set into motion against the detenus. Further, since the detenus have committed offences punishable under the Indian Penal Code, the said crimes can be effectively dealt with under the provisions of the Indian Penal Code and there was no need for the detaining authority to invoke the draconian preventive detention law. Thus, the offences committed by the detenus in the aforesaid crimes relied by the detaining authority do not fall within the ambit of the words “public 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 orders. The detaining authority cannot be permitted to subvert, supplant or substitute the punitive law of land, by ready resort to preventive detention.

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For the foregoing reasons, the impugned orders are legally unsustainable and are liable to be set aside.

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Dr.SA,J & JS,J W.P.No.12014 & 12007 of 2022

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In the result, both the Writ Petitions are allowed. The impugned detention orders vide No.07/PD-CELL/CYB/2022, dated 31.01.2022 and No.08/PD-CELL/CYB/2022, dated 31.01.2022, passed by the respondent No.2, and the consequential confirmation orders vide G.O.Rt.Nos.952 and 951, dated 02.05.2022, passed by the Chief Secretary to Government, General Administration (Spl. (Law & Order)) Department, Government of Telangana, are hereby set aside. The respondents are directed to set the detenus , namely Mohd Afzal, S/o Nafiz and Modh.Faizan, S/o Mohd. Jaweed, at liberty forthwith, if they are no longer required in any other criminal case.

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Miscellaneous Petitions, if any, pending in these Writ Petitions shall stand closed. There shall be no order as to costs.

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______________________ Dr. SHAMEEM AKTHER, J

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__________________ JUVVADI SRIDEVI, J

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Date: 13.06.2022 ssp

Javed v. The State of Telangana and 2 others

Case brief

What is this about?

What did the court decide?

Javed v. The State of Telangana and 2 others

Case brief

What is this about?

What did the court decide?

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