Allowed

Abdul Basheer v. The State of Telangana

Telangana HC13 Jun 2022WP/4424/2022

Case brief

AI extract

What is this about?

The High Court allowed a writ petition filed under Article 226 for habeas corpus. It set aside a preventive detention order (and its confirmation) against a petitioner's brother, ruling that the alleged offences constituted 'law and order' issues rather than 'public order' disturbance, especially as the detenu was already in judicial custody.

What did the court decide?

Impugned detention order and confirmation order set aside; detenu directed to be set at liberty forthwith.

Abdul Basheer Vs The State of Telangana — Pension and Retirement Benefits | 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 JUVVADI SRIDEVI

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WRIT PETITION NO: 4424 OF 2022

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Between:

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Abdul Basheer, S/o. Abdul Rasool, aged 29^years, Occ. Water^pump Mechanic, R/o. H.No. 1B-B-646/fu100, Mohd Nagar, Edi Bazar, Charminaer,^yakutpura, Hyderabad.

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...PETITIONER

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AND

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

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The Commissioner of Police and Addl District Magistrate (Executive), Hyderabad City.

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The Superintendent, Central Prison Hyderabad at Chanchalguda.

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...RESPONDENTS

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Petition Under Article 226 of the Constitution of lndia praying that in 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 i.e. Abdul Khaja @ Chota Khaja now detained in Central Prison Hyderabad, at Chanchalguda before this Hon'ble Court and set.aside the impunged detention order passed by the 2nd Respondent vide No. SB(l) No. 380/ PD-3/ HYD/ 2021 , dt. 01-12-2021 and confirmation order vide G.O.Rt.No.461 , daled 25-2-2022 passed by the 1st Respondent as being illegal, arbitrary, improper, unilateral, u nconstitutiona I and violative of Article 21 and 22 of the Constitution of lndia and to forthwith release the Detenue.

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(Prayer is amended as per Court Order dated 0646-2022 vide I.A.No.1 ot 2022 in WP.No.4424 of 2022)

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Counsel for the Petitioner : SRI.PASHAM TRIVIKRAM REDDY Counsel for the Respondents : ADDL ADVOCATE GENERAL The Court made the following ORDER

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THE HOll'Bl-E Dr. JUSTICE SHAMEEM ,{lil-HER AND THE HOt'BLE SMT. JUSTICE JUVVADI :iR:tDI:VI

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W I]:T PETITION N o .44 24 0F 20,>_i.

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ORDER: (l)er l.lc^'bLe t)r. lustice Shameem Akthcr)

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Mr Abdul Basleer, the petitioner, has filed^!his Habeas

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Corpus [)etition on behalf of his brother, Abdul t,(lrarja tg) Chota Khaja, S/o Abcrl Rasool, the detenu, challenging tfe letention order vicle Sll(I)t'lo.380/PD-3/HYD12027, date(i )1...2.2027, passed by the: respondent No.2, whereby, th,:^(1et,:nu was detained under Sr:ction 3(2) of the Telanganar P-eventive Detention Act, 1986 (Act 1 of 1986), and the c,:)ns:,quential confirmation or 1e:r vide G.O.Rt.No.461, Genr:ral l\dministration (Spl. (Lara, & O der)) Department, dated 25.02.2.1,i.t- p:ssed by the respondent llo.1.

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Heard thr learned counsel for the petiti()ner, learned Assistant Gove nment Pleader for Home app€rari rg for the respondents anc: perused the record

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The case c ' lh(: petitioner is that basing on th [e r: cri rres viz., Crime Nos.22O nd 222 of 2O2L of Kanchanbhag l)olice: Station and Crime No.5, 9 o1'2021 of Chandrayangutta Pollc,: ;tation, the respondent No., passed the impugned detentior ,:-der, dated 0L.I2.2021.. A,:r-orCing to respondent No.2, the clet€nu is a

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'Goonda'and he has been habltually ccmmitting offences including hurts and criminal intimidation in the limits of H'/dei-a'-had Police Commissionerate and thus causing widespread fear and panic among the general public by comnlitting such offences and thus he has been acting in a manner prejudicial to the maintenance of public order, apart from disturbing peace, tranquilit'y' and social harmony in the society. Subsequently, the impugned detention order was confirmed by the Government, vrde G.O.Rt.No.461, dated 25.02.2022

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Learned counsel for the petitioner wculd contend that the impugned detention order has been^passe:d in a mechanical manner and without application of mind. Alreaci'y crirrrinal law was set into motion against the detenu. The .ietenu was^granted conditional bail by the Courts concerned in ail the crimes relied upon by the detaining authority. However, for not furnishing sureties, he continued to be in^judicial custody. Despite the fact that the detenu is in^judicial custody, the impugned detention order has been passed against the detenu. The detaining authority, without appreciating the material on record, mechanically^passed the impugned detention order. The alleged crimes do not add up to "disturbing the public order" and they are confined within the ambit and scope oF the word "law and order".

.1. SA, .r & JS. J -) \V.t, \ ) 342.1 of 2022

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Since the offen es alleqed are under the Indian l-r€ n,)l^(:ode and Arms Act, the <.:lerru can certainly be tried ald con,,icted under the Indian Pena Co,Je and the said special laur. Thu:;, there was no need for tl e cetaining authority to invcke^l:h -. draconian preventive det,, ntion law against the dete,nu. Hence, the impugned orde s tantamount to colourable exerc !;qr c1' power The impugned rrders are legally unsustainable ,lr'rd u^r:imately, prayed to allow 'he \Vrit Petition, as prayed for.

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On the⁽ ther hand, the learned Asslstant So'/ernment Pleader for Horre appearing For the respondents r;upported the impugned orderr an(l Submitted that the detenu is a^(.ioonda'. He has been habir uall'/ committing offences includirr; hurts and criminal intimi lation in the limits of Hyderabad Police Commissionerat, :, tt-us caus;ng widespread fear and ljani: among the general pul. lic try committing such offenc:es^-tlre s;eries of crimes allegedly conlmitted by the detenu were prejcrdicial to the maintenance of public order, apart from disturb rr; tht: peace, tranquility, and ocierl harmony in the Society. Thou;l tl-rl detenu was earlier detl inec under the provisions of^-Telan(lana Act 1 of 1986 (PD Act) v de order, dated 05.10.2016, tl-rere vrers no change in his attitude rnd after release from preventive rlr:te.tion, he again committ( J the subject three crimes T: r ref ore, the

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cjetaining authority and the Government are justified in passing the impugned orders. The impuEned orders are legally sustainable and ultimately, prayed to dismiss the Vvrit Petition.

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In view of the submissions made by both the sides, the point that arases fcr determination in thls Writ Petition is:

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"Whether the impugned detention order vide SB(r)No,3B0/PD-3/HYD/2121, dated 01.12.2021, passed by the respondent No.2 and the consequential confirmation order vide G.O.Rt.Nc.461, General Administration (Spl. (Law & Order)) Department, dated 25.02.2022,^passed by the respondent No.7, are liable to be set aside?"

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POINT

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-1 . 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,

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the detaining i'uthority should be wary of invokinrl -he immense power u nder th: Ac:.

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B. In Ram^vlanohar Lohia v. State of Bihar^t, tlr,: Hon'ble Supreme Cour hers, in fact, deprecated the inv,:rkirrg of the preventive law n order to tackle a law and order l)r) rle r. It was observed that ver,r breach of^{public peace} and ev:ry violation of law may create a 'law and order'problem, but doe'; rrot rrecessarily create a^proble n o'"public order'. The distinction ha:: t(, tle borne in mind in vi,, w of what has been stated in t rc grounds of detention.

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In Kanu Biswas v. State of West Bengal2, ttr : Hon'ble Apex Court, w, ile Jiscussing the meaning of word 'tub ic order,' held that the question whether a man has on11, cornmitted a breach of^'law i. nd order'or has acted in a manner lillr:ly to cause a disturbance oF^I he 'cublic order', is a question of de(l'ee and extent of the reach of .he act upon the Society.

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1,0. In the prr^.sent case, the detaining authority, t,ar;ing on three crimes indicat(d above, passed the impugned de:ri::ntion order, dated 01.12.2( 21. We shall present them in a tabllar form the date of occUrrr: nce, the date of registration of Fl F. thr: offences

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'AIR^{1966sc 740} '^{(1972)3 scc83 l}

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Dr sl.^I f,..lS.^:

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complainecj of and its nature, such as bailable/non-bailable CT cognizable/non -cog nizable.

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CrimeNo. t	Dateof Occurrence	Dateof registration ofFIR	--t I I t Offcnces	Nature
220of 2021of I^{KanchanbaghPS} I I	08.10.2021	I 09.ro.2c2L	I Section 324ofIPC and Sections 25(1)(B) ofArms Act	Section 324o IPC: Cognizable/' NonBailable Section25 (1)(B)of Arms Act: Bailable
222of2021of KanchanbaghPS f l I	11.10.2021	l I 72.10.2021 I I !	Sections324and 506olIPC	Cognizable/ NonBailable
I		I i i 'I		Section50 Cognizabie/
549of 2021ofi Chandrayanguttaⁱ PSI	-tt.),0.?0)i	I I 12.t0.2c21.	Section506ofIPC Sccticn 2:i(i)(B) olArlns Act	Non3ailabie Section25 (t)($)ofArms Act: aailaDle

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As seen from the material placed on record, the detenu \ryas

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arrested and rcmanded to^judicial custody in Crime lJos.220 and 222 of 2021 of Kanchanbagh Poiice Station and his arrest was regularized in Crime No.549 of 202I of Chandrayangutta Poiice Station through PT warrant. The detenu was^granted conditionai bail by the Courts concerned in all the crimes relied upon by the detaining authority. However, for not furnishing sureties, he continued to be in^judicial custody as on the date of passing of ihe impugned detention order. Under these circumstances, the apprehension of the detaining authority that since the detenu was granted bail, there is imminent possibllity of his indulging in similar prejudicial activities again immediately after his release /

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I \

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t I

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from^jail after urnishing sureties, which would be d(rtrimental to the public ordr r, urnless he is^prevented from do rg so by an appropriate or( er of detention, is highly misplac(:cl. It is the bounden duty r: f the Police to inform the learned Pu [,] c Prosecutor about the cond rct of the detenu and to handover tht: ertire case record availabl( against the detenu. The police are: supposed to be vigilant in,: ollecting the whole data against th,: detenu and furnish the si me to the Public Prosecutor/Adrlitional Public Prosecutor to d rfeat the bail application/s of the de:,:.tu. Further, the conditional rrder of bail restricts the movement cf the detenu and requires him to appear before the offrct:r t:oncerned periodically and the detenu would be under the surrt:illance of the police and the⁽ lourt. Moreover, criminal law lvas alrr:ady set into motion agains: the detenu. Further, since tht: detenu has allegedly comnitted offences punishable under th() [ndian Penal Code and Arms Act, the said crimes can be efFecti,3 y dealt with under the prov sions of the Penal Code and the s.r c special iaw and there was 10 need for the detaining authority tr: invoke the draconian prevt ntive detention law. Thus, the offenr:es allegedly committed by^'he detenu in the crimes relied by tlle detaining authority do nol fall within the ambit of the words "putrlic order" or "disturbance of public order". Instead, they fall \i/i :hin the scope

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of the wcrds^"law and orCer". Hence, there was nc need for the detaining authority to pass the impugned det.ention order. The detaining authority cannot be^permitted to sutrvert, supplant or substitute the punitive law of land, by ready resort to preventive detention.

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

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In^thc resull, the Wr-it Petitiorr is allo',rred.^.rhe impugned detention oroer vide SB(I) Nc.3BO/PD-3rHYD/2021, dated Ol.l2.2A2),^passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt.No.461, Genei-al Administration (Spl. (Law & Ci-der)) Department, dated 25.02.2022, passed by the respondent No.1, are hereby set aside. The respondents are directed to set the detenu, namely Abdul Khaja @ Chota Khaja, S/o Abdul Rasool, at liberty l'orthwith, if he is no longer required in any other criminal case

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Miscellaneous Petitions, if any,^pending in this Writ Petition

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shall stand closed. There shall be no order as to costs.

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SD/. T. SRINIVAS DEPUTY REGISTRAR //TRUE COPY// cib SECTION OFFICER

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The Principal Secretary, General Administration (Spl. (Law and Order) Department, Secretariat, State of Telangana at Hyderabad. 2. The Commissioner of Police and Addl District Magiskate (Executive), Hyderabad City.

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' ,. an" Superinten lent, Central Prison Hyderabad at Chanctta guda. 4. Two CC to Adv rcate General, High Court for the State of^--r:langana at Hyderabad. (OllT)

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