Allowed

Aslam Ansari v. The State of Telangana and 2 Others

Telangana HC13 Jun 2022WP/12014/2022

Case brief

AI extract

What is this about?

The High Court allowed habeas corpus petitions challenging preventive detention orders under the Telangana Preventive Detention Act. The Court held that offences under the IPC pertain to 'law and order,' not 'public order,' making preventive detention. The orders were set aside, and detenus were directed to be released.

What did the court decide?

Impugned detention orders are set aside; detenus Mohd. Afzal and Mohd. Faizan are directed to be set at liberty forthwith if not required in other criminal cases.

Aslam Ansari Vs The State of… — Constitutional and Fundamental Rights | Telangana HC (2022)

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

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MONDAY, THE THIRTEENTH DAY OF JUNE TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE DR. JUSTICE SHAMEEM AKTHER AND

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THE HONOURABLE SMT JUSTICE JUWADI SRIDEVI

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WRIT PETITION NOS: 12014 AND 12007 OF 2022

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W.P.No.120'14 of 2022

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Between:

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Aslam Ansari, S/o.Nafis, aged 25 years, Rl/o.Gali No.06, Near Kausar Masjid, Shahjahan Colony, Meerut City, Uttar Pradesh.

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...PETITIONER

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AND

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The State of Telangana, Rep. by its Principal Secretary to Government, GAD Dept.(Spl.Law and Order), Telangana Secretariat, Hyderabad.

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The Commissioner of Police, Cyberabad Commissionerate.

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The Superintendent of Jail, Central Prison. Cherlapalli, Medchal-Malkajgiri District.

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...RESPONDENTS

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Petition Under Article 226 of 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 of Habeas Corpus under Nt.226 of the Constitution of lndia directing the respondents to produce Sri.Mohd. Afzal, S/o.Nafiz, now detained at Central Prison, Cherlapally, Medchal District, before this Honourable Court and he may be ordered to be released forthwith/set at liberty after declaring his detention vide No.07PD-CELL/CYB 12022, dated 3110112022 passed by the 2nd respondent and consequential confirmation orders passed by the 1st respondent vide G.O.Rt.No.952 General Administration (Spl (Law and Order) Department, dated 02-05-2022 as illegal, u nconstitutional and void.

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(Prayer is amended as per Court Qrder dated 06-06-2022 vide l.A.No.1 of 2O22 in WP.No. 120'1 4 ot 2022)

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Counsel for the Petitioner : SMT.B.MOHANA REDDY

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Counsel for the Respondents : ADDL ADVOCATE GENERAL

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W.P.NO: 12007 OF 2022

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Between:

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Javed, S/o.Barakat, aged 43^years, R/o.H.No.1131, Gali No.4, Shahjahan Colony, Meerut City, Uttar Pradesh State.

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..PETITIONER

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AND

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The State of Telangana, Rep. by its Principal Secretary to Government, GAD Dept.(Spl.Law and Order), Telangana Secretariat, Hyderabad.

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The Commissioner of Police, Cyberabad Commissionerate.

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The Superintendent of Jail, Central Prison, Cherlapalli, Medchal-Malkajgiri District.

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...RESPONDENTS

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Petition Under Article 226 ot the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased toissue a Writ of Habeas Corpus under Art.226 of the Constitution of India directing the respondents to produce Sri.Mohd. Faizan S/o.Mohd. Jaweed, now detained at Central Prison, Cherlapally, Medchal Dlstrict, before this Honble Court and he may be ordered to be released forthwith/set at liberty after declaring his detention vide No.0B/PD-CELLiCYB 12022, daled 31-01-2022 passed by the 2nd respondent and consequential confirmation orders passed by the l"trespondent vide G.O.Rt.No.951 General Administration (Spl (Law and Orde$ Department, dated 02-05-2022 as illegal, unconstitutional and void.

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(prayei is amended as per Court Order dated 06-06-2022 vide l.A.No.1 of 2022 in WP.No.12007 ot 2022)

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Counsel for the Petitioner : SMT.B.MOHANA REDDY

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Counsel for the Respondents : ADDL ADVOCATE GENERAL

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The Court made the following COMMON ORDER

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THE HON'BLE DT. JUSTICE SHAMEEM AKTHER AND THE I{ON'BLE SMT. JUSTICE ]UVVADI SRIDEVI

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WRIT PETITION Nos.12014 AND L2007 0F 2022

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COMMON ORDER: (t)cr Hon'bre Dr. Jusrrce Sharreern nkthcr)

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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 th is comrnon 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 iiled the present Habeas Corpus petitions cha{lenging the separate detention orders vide No.07IPD-CELL/CYB/2022 and No.0B/PD-CELL/CYB/2022 of even date dated 31.01.2022, passed by the respondent No.2Commissioner of Police, Cyberabad Comm issionerate, 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 02.05.202-2,^passed by the ChieF Secretary^to

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Government, General Administration^(Spl. (Law & Order)) Departnlent, Govern ment cf Telangana.

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Heard the learned counsel for the petiiioners, learned Assistant Government Pleader for Home represcnting 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 subrnit 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.60B of 2027 and 606 of 2C2l 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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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 ln crime No.606 of 2027 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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40' On the other hand, the learned Assistant Government 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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publac affecting the public order, apart from disturbing peace and tranquility in the society. The bail applications moved by the detenus in Crime No.60B of 2021 were dismrssed 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 oi the detenus again moving bail applications in crime No.608 of 2021 and filing fresh bail application in crime No.606 ot 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 allegecily 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 irnpugned 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 ord ers v ide N o. O 7/ P D^_ CE LL/CY B/ 2 O 2 2 and No.0B/PD-

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I I

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CELL/CYB/2)22 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 u nder 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

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'^{AtR 1966 sc 74o}

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()

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observed that every breach of^{public peace} and every^vioiation of Iauv may create a^'law and order' problem, br-rt does not necessarily create a problem of 'public order'. The distinction has to be borne in mind in view of what has been stateci in the crounds of delention

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B. In Kanu Biswas v. State of West Bengalr, the Hon'ble Apex Court, while discussing the meaning of word 'public order,' held that the question whether a man has on y 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 dcgree 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 erders^{of even} date, dated 31.01.2022.^We shall^present themⁱⁿ a tabular form the date of occurrence, the date of reqistration of FIR, the offences complained of and its nature, such as baila ble/non^- ba ilable or cog nizable/non-cog niza bie.

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CrimeNo. 60a/2O27 ot ShankarpallyPS	Dateof Occurrence 25.1O.2021	Dateof registration OfFIR ?.5.1o.2021 I	Offen€es Section 395ofIPC .t	Natu re Section395 iPc^, Cognizable/ Nqn B!tl9b.l9

(1 972) 3 SCO 83 l

Section 341
IPC
Cog niza ble/
Baila ble
Sectron 379 i
606/2021 ot 23.14.202 r 24 .10.202), Scctrons 141 , .l79 t___l IPL .
Shan karpally PS and 427 ol IPC i cognizabte/ ]
I Non Bailable I
Section 427
I l IPC -Non
I Cognizable/ I
I Bailable

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As seen from the material placed on record, the crimes relied upon by the detaining authority for^preventively detaining the detenus relate to Dacoity. The detenus were arrested in connection with crime No.60B of 202), on 28.10.202.1 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.60B of 2021, there is every possibility oF the detenus again moving bail application in crime No.608 of zOZt and filing fresh bail application in crime No.606 of 2O2l 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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Prosecutor about the conduct of the detenus and lo handorrer the entire case records avallable against the detenus. The police are supposed to bc vigilant in collecting the whole data against the detenus and furnish the same to the Public Prosecutor/Adcjitional Public Prosecutor to Cefeat the bail application/s of the detenus Moreover, criminal law was already set into niotion against the detenus. Further, since the detenus have committcd offences punishable under the Indian Penal Code, the said crimcs can bc effectively dealt with under the provisions cf the Indian Pcnal Code and there was no need for the detaining authorily to invoke^r.he draconian preventive detention law. Thus, the offences comrnitted 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 ot public order". Instead, they fall within the scope of the words "law and order". Hence, there was no need for the cietaining 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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t2. In the result, both the Writ Petitions are allowed. The impugned detention orders vide No.07/PD-CEIL-/CYB/2022, dated 37.01.2022 and No.0B/PD-CELL/CYB/2022, dateo 31.0t.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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