Allowed

Mohammed Naseem Begum v. The State of Telangana and 2 Others

Telangana HC8 Jun 2022WP/18832/2022

Case brief

AI extract

What is this about?

High Court allowed a habeas corpus petition challenging the preventive detention of a detenu under the Telangana Preventive Detention Act, 1986. The Court set aside the detention orders, holding that alleged theft and cheating offences fell under 'law and order', not 'public order', and relied on Section 3 IPC convictions rather than preventive detention.

What did the court decide?

Impugned detention order and confirmation order set aside; detenu Mohammed Atiq Ahmed @ Fardeen to be set at liberty forthwith if no longer required in other criminal cases.

Mohammed Naseem Begum Vs The State… — Constitutional and Fundamental Rights | Telangana HC (2022)

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l i

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J I I I I I I I I t Ii

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

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WEDNESDAY, THE EIGHTH DAY OF JUNE TWO THOUSAND AND TWENTYTWO

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PRESENT

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THE HONOURABLE DR. JUSTICE SHAMEEM AKTHER AND THE HONOURABLE SMT JUSTICE JUWADI SRIDEVI

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WRIT PETITION : 18832 OF 2022

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Between:

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Mohammed Naseem Begum, Wo Mohammed Nadeem Ahmed, Aged about.⁴⁶ years, Occ. Housewife, Rl/o. H. No. 1-38/829, lndiramma Nagar, Rasoolpura, Secunderabad, Hyderabad.

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...PETITIONER

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AND

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1 The State of Telangana, Rep. by its Principal Secretary General Administration (Spl. (Law and Order) Department, Secretariat, Hyderabad.

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2 The Commissioner of Police, Hyderabad. 3 The Superintendent, Central Prison, Chanchalguda, Hyderabad.

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...RESPONDENTS

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Petition under Article 226 of the Constitution of lndia^praying thatⁱⁿ the circumstances stated in the affidavit filed therewith, the High Court may^be pleased to issue an appropriate Writ, Order or Direction, more particularly one in the nature of Writ of Habeas Corpus, directing 3rd Respondent to^produce the detenue viz., Mohammed Atiq Ahmed @ Fardeen S/o. Mohammed Nadeem Ahmed now detained in Central Prison, Chanchalguda, Hyderabad, before this Hon'ble Court and set-aside the impugned detention order^passed by the Respondent No. 2 vide SB (l) No. 333/PD-4/HYD|2O21, dated. 0311212021 and confirmation order passed by the 1St Respondent vide G.O.Rt.No.744, dated 30/03/2022 as being illegal, arbitrary, improper, unilateral, unconstitutional and violative of Article 21 and 22 of the Constitution of lndia, and to forthwith release the Detenue.

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Counsel for the Petitioner: SMT. BlBl AYESHA MOHAMMED

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Counsel for Respondents: AGP FOR HOME FOR

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THE ADVOCATEGENERAL

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The Court made the following: ORDER

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

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WRI T PETITI ON No.1 32 0F o22

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ORDER: (Per Hon'bte Dr. lustice Shameem Akther)

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Smt.Mohammed Naseem Begum, the petitioner, has filed this Habeas Corpus petition on behalf of her son, Mohammed Atiq Ahmed @ Fardeen, S/o Mohd. Nadeem Ahmed, the detenu, challenging the detention order vide SB(I) No.333/pD4/HYD/202L, dated 03.12.2021, passed by the respondent No.2, whereby, the detenu was detained under Section 3(2) of the Telangana Preventive Detention Act, 1986 (Act 1 of 1986), and the consequential confirmation order yrde G.O.Rt.N o.744, General Administration (Spl. (Law & Order)) Department, dated 30.03.2022, passed by the Chief Secretary to Government, General Administration (Spl. Law & Order)) Department, Government of Telangana.

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2, Heard the learned counsel for the petitioner, learned Assistant Government^pleader for Home appearing for the respondents and perused the record.

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Learned counsel l'or the petitioner wouid submit that the impugned detention order was passed by relying on four crimes registered against the detenu viz., 7) Crime No.1B7/202I of

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DI.SA,J & JS,J 2 W.P.No.l8a32 of2022

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I i I I

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Begumpet Police Station,^{2) Crime No.B3/2021 of Karkhana Police} Station, 3) Crime^{No.774/202i of Ramgopalpet Police Station and} 4) Crime No.312/2021 of Bowenpalli^{PoliceStationof Hyderabad} Police Commissionerate. Subsequently, the^{impugneddetention} order was confirmed by the^{Government,vrde G.O'Rt.No.744,} dated 30.03.2022. The alleged^{cases do not add up tc "disturbing} the^public order". They are^{confinedwithin the ambit and scope of} the word^"law and order".^{Since the offencesalleged are under} the Indian Penal Code, the detenu can^{certainlybe tried and} convicted under the Indian^Penal Code.^{Thus,therewasno need} for the detainrng authority to invoke the draconian^preventive detention law. Hence, the^impugned orders tantamount^to colourable exercise of oower. Further, the detenu^{was granted} bail by the Courts concernedⁱⁿ ail the^{four cases relied upon by} the detaining authority. But^{he was} again^{sent to jail by invoking} the draconian^preventive detention^laws on^{the apprehension that} there is imminent^possibility oF the detenu committing^similar offences in future, which would be detrimental to^{the publicorder,} unless he is^prevented from doing so by an appropriate order^of detention. The subjective satisfaction^recorded by the^detaining authority in^preventively detaining the^{detenu is taintedand}

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Dr SA.J & JS,J w P No laa32 of 2022

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illegal. Thus, the impugned orders are legally unsustainable and ultimately,^prayed to allow the^{Writ Petition,} as^{prayed for.}

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On the other hand, the learned Assistant Government Pleader for Home appearing for the respondents supported the impugned orders and submitted that the detenu is a^'Goonda'. He has been habitually committing theft of two wheeler vehicles and mobile^phone in the limits of Hyderabad Police Commissionerate and causing widespread fear and^panic among the^people by committing such offences and thus acting in a manner^prejudicial to the maintenance of public order apart from disturbing the peace, tranquility and social harmony in the society. The detenu was granted bail/conditional bail in all the four crimes relied on by the detaining authority. Further, the detenu had violated the bail conditions and therefore, the Investigating Officer concerned filed a petition before the Magistrate concerned seeking cancellation of bail in Crime No.174 of 2O2l of Ramgopalpet Police Station and the same is pending. Therefore, the apprehension of the detaining authority that there is imminent^possibility of the detenu committing similar offences, is not misconceived. The series of crimes allegedly committed by the detenu were sufficient to cause a feeling of insecurity in the minds of the^people at large. Therefore, the detaining authority and the Government are I .,.

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Dr.SA.,J & JS,i w.P.No.18a32 of 2022

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justifieci in passing the impugned orders. The impugneci orders are legally sustainable and ult!mately. prayed to dismiss the Writ Petition.

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In view of the submissions maCe by both the sides, the point

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that arises for determination in this Writ Petition is:

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"Whether the impugned detention order vide SB(l) N1.333/PD-4/HYD/2021, dateci 03.12.2021, passed by the respondent lrlo.2, and the consequential confirmation order vide G.O.Rt.No.744, General Administration (Spl. (Law & Order)) Department, dated 30.03.2022, passed by the Chief Secretary to Government, General Administration (Spl. Law & Order)) Department, Government of Telangana, 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 arnbit of "law and order" and rrlhen 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 urith 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 imrnense power under the Act.

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Dr SA.J & JS-., W P No laa32 of2022

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)

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B. In Ram Manohar Lohia v. State of Biharr, 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 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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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 case, the detaining authority, basing on four crimes indicated above, has passed the impugned detention order, dated 03.12.2021. We shall present them in a tabular form the date of occurrence, the date of registration oF FIR, the oFfence complained of and its nature, such as bailable/non - bailable or cog nizable/non -cog nizable.

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'^ArR 1966 sc 740

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'^{(t972l 3} scc 831

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D'.SA,J & JS.J !v P No- 13a32 of 2022

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CrimeNo.	Dateof Occurrence	Dateof I registrationl	Offences	Nature
Cr.No.1B7l202iof BegumpetPS	18.05.2021	rs.05.2021	Section 379IPC	Cognizable/ Non Bailable
Cr.No.B3l2021 of KarkhanaPS	t9.o5.202r	19.05.2021	Section 379IPC	cognizable/ Non Bailable
C(.No.774/202! of RamgopalpetPS	08.08.2021	03.08.2021	Sections 420and 379rPC	Cognizable/ Non Bailable
Cr.No.31212021of BowenpalliPS	2!.O9.202r	22.09.202\|Section 379IPC	Cognizable/ Non Bailable

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As seen from the material^placed on^{record, the crimesrelied} upon by the detaining authority for^{preventively detainingthe} detenu relate to theft of two wheeler^{vehicles and mobilephone.} Further, the detenu was arrested in connection^{with the said crimes} and subsequently, he moved bail^petitions in the^{said crimes and} he was granted bail in all the crimes relied by the detaining authority by the Courts concerned and^{he was releaseC from jail.} Learned Assistant Government Pleader For Home^{would submitthat} the detenu had violated the bail conditions and therefore, the Investigating Officer concerned filed a^petition before^the Magistrate concerned seeking cancellation of^{bail in CrimeNo.174} of 2O2L of Ramgopalpet Police Station and the^same is^pending. Since it is alleged that the detenu had violated the bail^conditions, the^prosecution can apprise the same to the^{Magistrateconcerned} in the^pending application and seek cancellation of bail. Under these circumstances, the apprehension of the detaining authority

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Dr.SA,J & JSJ w.P No 18832 of2022

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( (

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that since the detenu was released on bail, there is^imminent possibility of his committing similar offences, which would be detrimental to^public order, unless he is^prevented from doing so by an appropriate order of detention, is misplaced. It is the bounden duty of the Police to inform the learned Public Prosecutor about the conduct of the detenu and to handover the entire case record available against the detenu. The^police are supposed to be vigilant in collecting the whole data against the detenu and furnish the same to the Public Prosecutor/Additional Public Prosecutor to defeat the bail application/s of the detenu. Moreover, criminal law was already set into motlon against the detenu. Further, since the detenu has committed offences^punishable under the Indian Penal Code, the said crimes can be effectively dealt with under the pr.ovisions of the Penal Code and there was no need for the detaining authority to invoke the draconian^preventive detention law. Thus, the offences committed by the detenu in the four 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 order. The detaining authority cannot be

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l)r Sn..J &^lS,.-i 8 w P No. i3S-12 of 2022

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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 impugnectordersare iegally} unsustainable and are^{liable to be set aside.}

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In the result, the Writ^{Petitionis allowed. The impugned} detention order vide SB(I)^{No.333/PD-4lHYD/2021,dated} 03.12.2021,^passed by the^{respondent No.2.and the consequential} confirmation order vide G.O.Rt.No.744,^{General Administration} (Spl. (Law & Order)) Depa!-tnrent. dated 30.03.2022,^{passeci by} the Chief Secretary to Government,^{GeneralAdministration(Spl.} Law & Order)) Department, Government^{of Telangana,are hereby} set aside. The respondents^{are directed to set the rletenu, namely} Mohammed Atiq A.hmed @^{Fardeen,9/o Mohd. NadeemAhmed, at} liberty forthwith, if he is^{no longer i'equiredin any other criminal} case.