Bukhari Kishen Rahul Singh vs State Of Telangana

,,,,,

Mr. Bukhari Kishen Rahul Singh, the petitioner, has filed this Habeas Corpus petition on behalf of his brother, Ritesh Singh, S/o. late Sudheer Singh,",,,,,

aged about 24 years, the detenu, challenging the detention order vide SB (I)No.205/PD-2/HYD/2020, dated 29.10.2020, passed by the respondent",,,,,

No.2-Commissioner of Police, Hyderabad City, wherein, the detenu was detained under Section 3(2) of the Telangana Prevention of Dangerous",,,,,

Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land-Grabbers, Spurious Seed Offenders, Insecticide",,,,,

Offenders, Fertilizer Offenders, Food Adulteration Offenders, Fake Document offenders, Scheduled Commodities Offenders, Forest Offenders,",,,,,

Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders & White Collar or Financial",,,,,

Offenders Act, 1986 (for short, ""P.D. Act"") and the consequential confirmation order vide G.O.Rt.No.120, General Administration (Spl. (Law &",,,,,

Order)) Department, dated 12.01.2021, passed by the Principal Secretary to Government, General Administration (Spl. (Law & Order)) Department,",,,,,

Government of Telangana.,,,,,

Heard the submissions of Sri A.Prabhakar Rao, learned counsel for the petitioner, Sri T.Srikanth Reddy, learned Government Pleader for Home",,,,,

representing the learned Additional Advocate General for the respondents and perused the record.,,,,,

The background of the case, in brief, is that by relying two criminal cases registered against the detenu in Crime Nos.316/2019 and 70/2020 of",,,,,

Mangalhat Police Station, Hyderabad, the respondent No.2-Commissioner of Police, Hyderabad, passed the impugned detention order, dated",,,,,

29.10.2020. According to the respondent No.2, the detenu is a ‘drug offender’, as he has been indulging in highly dangerous activities of",,,,,

peddling ‘ganja’, a narcotic drug, among the people in the limits of Hyderabad Police Commissionerate, duly endangering the lives of youth and",,,,,

innocent people, causing irreparable damage to their body organs, including the Central Nervous System and thereby, crippling the mental and physical",,,,,

health of the people addicted to drugs. With a view to prevent the detenu from damaging the health of general public, especially youth, by supplying",,,,,

‘Ganja’, which is prejudicial to maintenance of public order, the impugned detention order, dated 29.10.2020, was passed, which was confirmed",,,,,

by the Government, by order, dated 12.01.2021. Hence, this Writ Petition before this Court.",,,,,

The learned counsel for the petitioner vehemently contended that the impugned detention order is illegal, arbitrary, unconstitutional, improper, against",,,,,

the principles of natural justice and has been passed in a mechanical manner and without application of mind. The detenu is falsely implicated in the,,,,,

cases relied by the detaining authority. The alleged criminal activities of the detenu, in any event, would not satisfy the word ‘drug offender’.",,,,,

The detaining authority has not applied its mind to the facts and circumstances of the case, while passing the impugned detention order. The detenu",,,,,

was granted conditional bail in both the crimes relied by the detaining authority. Hence, there was no need to invoke the draconian preventive",,,,,

detention laws against the detenu, since the detenu would be well within the surveillance of police. Further, the detenu has been complying the bail",,,,,

conditions. The conditions imposed in the bail orders were sufficient to prevent the detenu from fleeing from justice. Thus, the impugned detention",,,,,

order is vitiated by non-consideration of the bail conditions. In case the detenu had violated the bail conditions, the sponsoring authority could have",,,,,

taken steps for cancellation of bail. Instead, the sponsoring authority gave a requisition to the detaining authority for passing the detention order.",,,,,

Further, the subjective satisfaction recorded by the detaining authority for preventively detaining the detenu is vague and not based on any material.",,,,,

Further, the detaining authority failed to furnish the material relied upon by it to the detenu in the language known to him, i.e., Hindi, which deprived the",,,,,

detenu to exercise his constitutional right of making a representation to the authorities. Moreover, the cases alleged against the detenu do not add up to",,,,,

“disturbing the public orderâ€. They are confined within the ambit and scope of the word “law and orderâ€. Since the offences alleged are,,,,,

under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’), the detenu can certainly be tried under the said",,,,,

special law. Thus, there was no need for the detaining authority to invoke the draconian preventive detention laws. Hence, the impugned detention",,,,,

order tantamounts to colourable exercise of power. Preventive detention cannot be made a substitute to punitive detention. The detaining authority has,,,,,

to be extremely careful while passing the detention order, since the detention ipso facto adversely affects the fundamental right of personal liberty",,,,,

enjoyed by the people under Article 21 of the Constitution of India. Thus, the detention order is legally unsustainable and ultimately, prayed to set aside",,,,,

the same and allow the writ petition as prayed for. In support of his contentions, the learned counsel had relied on the following decisions.",,,,,

M.Ahamedkutty Vs. Union of India (UOI) and others 1990 (2) SCC 1.,,,,,

Ramesh Yadav Vs. District Magistrate, Etah and others (1985) 4 SCC 232.",,,,,

Binod Singh Vs. District Magistrate, Dhanbad and others (1986) 4 SCC 416.",,,,,

Anitha Bai Vs. State of Telangana and others Decided on 12.04.2021 in W.P.No.1657 of 2021 by the High Court for the State of Telangana.,,,,,

Santhosh Singh Vs. State of Telangana and others Decided on 23.04.2021 in W.P.No.1691 of 2021 by the High Court for the State of Telangana.,,,,,

Smt. Sneha Singh Vs. State of Telangana and others Decided on 18.02.2019 in W.P.No.38082 of 2018 by the High Court for the State of,,,,,

Telangana.,,,,,

Nakka Srinu Vs. State of Telangana and others Decided on 26.12.2019 in W.P.No.20904 of 2019 by the High Court for the State of Telangana.,,,,,

Md.Naseem Vs. State of Telangana and others Decided on 09.11.2018 in W.P.No.32398 of 2018 by the High Court of Judicature at Hyderabad for,,,,,

the State of Telangana and the State of Andhra Pradesh.,,,,,

On the other hand, Sri T.Srikanth Reddy, the learned Government Pleader for Home, appearing for the respondents, supported the impugned",,,,,

detention order and submitted the detenu has been indulging in grave and dangerous activities of peddling ‘Ganja’, a narcotic substance, duly",,,,,

endangering the lives of youth and causing irreparable damage to their body organs including Central Nervous System and thereby, crippling the health",,,,,

of those who are addicted to drugs. The unlawful activities of the detenu were causing widespread danger to the public health and were detrimental to,,,,,

the public order. In the first crime, i.e., Crime No.316/2019, the police seized 21 Kgs of ‘Ganja’ and in the second crime, i.e., Crime",,,,,

No.70/2020, the police seized 22 Kgs of ‘Ganja’ from the possession of the detenu and his associate. Free sale of drugs not just impacts",,,,,

individuals and their health, but also adversely affects the society at large. If the youth gets caught in a  trap of drug addiction, they slowly begin to",,,,,

disobey the law and commit petty crimes, in order to ensure constant supply of drugs to themselves and eventually become physically and financially, a",,,,,

burden to the society itself. Therefore, sale of drugs by drug offenders adversely affects a large segment of society and hence, it disturbs the",,,,,

maintenance of public order. Further, the detenu stated that he studied up to intermediate in English medium and requested the detaining authority to",,,,,

provide him English translated copies of the detention order, grounds of detention and the documents relied upon. Accordingly, the detenu was served",,,,,

with the English translated copies within the mandatory period and the detenu acknowledged the receipt of the same by signing each page in English.,,,,,

Further, the two crimes relied upon for detaining the detenu were committed by him in quick succession. In spite of his arrest and remand in the first",,,,,

crime, he did not mend his attitude and continued to commit similar offences after his release on bail. With a view to prevent the detenu from further",,,,,

indulging in such dangerous activities in the interest of the society, the impugned detention order was passed. The subjective satisfaction reached by",,,,,

S. No.,Crime No.,"D a t e of

Occurrence","D a t e of

registration of

FIR",Offence,Nature

1.,"316/ 2019 of

Mangalhat Police

Station",28.12.2019,28.12.2019,"ection 8 (c) read

with 20 (b) (ii)

(C) of NDPS Ac

Qty: 21 kgs of

Ganja","Cognizable/ Non-

bailable

t

2.,"7 0 / 2 0 2 0 of

Mangalhat Police

Station",23.03.2020,23.03.2020,"Section 8 (c) read

with 20 (b) (ii)

(C) of NDPS Ac

Qty: 22 kgs of

Ganja","Cognizable/ Non-

bailable

t

from the fact that as many as seven criminal cases were registered against him in succession, clearly showing that the alleged conditions of bail did",,,,,

not deter the detenu from repeating his alleged illegal activities.,,,,,

In the instant case also, grant of conditional bail to the detenu was specifically referred in the detention order and a copy of the conditional bail",,,,,

order along with other relevant material were supplied to the detenu. When the detaining authority had noticed grant of bail on conditions and a copy,,,,,

of the said orders have been served on the detenu to make a representation before the authorities concerned, it cannot be said that the detaining",,,,,

authority had not taken into consideration the conditions imposed while grating bail to the detenu. The detaining authority, having examined the material",,,,,

against the detenu including grant of conditional bail, was pleased to pass the impugned detention order. Further, the material placed on record reveal",,,,,

that the detenu committed first crime, i.e., Crime No.316 of 2019 on 28.12.2019 and he was granted conditional bail by this Court on 29.01.2020 vide",,,,,

Criminal Petition No.441 of 2020 and he was released from jail on 31.01.2020. In the said bail order, one of the conditions is that the detenu shall not",,,,,

indulge in similar activities in future. But after release from jail, the petitioner committed similar second crime, i.e., Crime No.70 of 2020 on",,,,,

23.03.2020. It establishes that the detenu had patently violated the bail conditions imposed in the first crime and those conditions did not deter him from,,,,,

committing second similar crime, wherein, substantial quantity of ganja was seized from the possession of the detenu and his associate. Further, in",,,,,

Kamarunnissa v. Union of India (1991) 1 Supreme Court Cases 128, the Hon’ble Apex Court held that if an authority passes an order after",,,,,

recording its satisfaction, such an order cannot be struck down ostensibly on the ground that the proper course for the authority was to oppose the bail",,,,,

and seek cancellation of bail.,,,,,

The learned counsel for the petitioner placed strong reliance over the judgment in M.Ahmedkutty’s case (1 supra) in support of his contention,,,,,

that non-consideration of bail order would amount to non-application of mind. Similar contention was raised before a Division Bench of this Court in,,,,,

Naresh Singh Vs. State of Telangana and others Decided on 05.03.2020 in W.P.No.502 of 2020 by the High Court for the State of Telangana,",,,,,

wherein, it was held as follows:",,,,,

“But a close scrutiny of the judgment in M.Ahmedkutty (supras) goes to show that the issue before the Hon’ble Supreme Court was whether,,,,,

the detaining authority considered the Supreme Court’s interim order in pending appeal against High Court’s quashing of a previous order of,,,,,

detention against the same detenu was considered or not. While dealing with the said issue, the Hon’ble Supreme Court held as under:",,,,,

“25. Non-consideration of the bail order would have therefore, in this case, amounted to non- application of mind. In Union of India v. Manoharlal",,,,,

Narang [(1987) 2 SCC 241] the Supreme Court’s interim order in pending appeal against High Court’s quashing of a previous order of,,,,,

detention against the same detenu was not considered by the detaining authority while making the impugned subsequent order against him. It was held,,,,,

that non-consideration of the interim order which constituted a relevant and important material was fatal to the subsequent detention order on ground,,,,,

of non-application of mind. If the detaining authority considered that order one could not state with definiteness which way his subjective satisfaction,,,,,

would have reacted and it could have persuaded the detaining authority to desist from passing the order of detention.â€​,,,,,

Thus, in the aforementioned case, the Hon’ble Supreme Court was not dealing with the issue regarding consideration of conditions imposed in the",,,,,

bail order by the detaining authority, but that aspect was not brought to the notice of the Division Bench in WP No.38082 of 2018, wherein the said",,,,,

order was passed basing on the order in W.P.No.32398 of 2018, dated 09.11.2018. The said distinction was not noticed by the Division Bench in",,,,,

W.P.No.32398 of 2018. In the instant case, as stated supra, conditional bail orders passed in favour of the detenu were considered by the detaining",,,,,

authority. When bail orders were considered, it cannot be said that the conditions imposed in the said order were not considered.â€​",,,,,

In the instant case, in view of the facts and circumstances and specific mention of grant of conditional bails to the detenu in the impugned",,,,,

detention order, it cannot be said that the detaining authority did not consider the conditions imposed while granting bail orders in favour of the detenu.",,,,,

So, the contention of the petitioner that the impugned detention order is vitiated by non-consideration of the bail conditions cannot be accepted.",,,,,

Further, it is apt to state that preventive detention is different from punitive detention. While punitive detention could be enforced under ordinary",,,,,

criminal law, the law of preventive detention can be enforced against habitual offenders to prevent them from committing the future similar offences,",,,,,

which are detrimental to the public interest, disturbing the even tempo of life and causing damage to public health. The legal parameters for testing the",,,,,

validity of ‘preventive detention’ fundamentally vary from that of ‘punitive detention’.,,,,,

In the case of Madhu Limaye Vs. Sub-Divisional Magistrate (1970) 3 SCC 746. The Hon’ble Apex Court held as follows:,,,,,

“The acts which disturb public tranquility or are breaches of the peace should not be given a narrow meaning, but should be given a liberal",,,,,

interpretation. For the expression ‘in the interest of public order’ is very wide amplitude.â€​,,,,,

In the case of Commissioner of Police & Others Vs. C.Anita (Smt.) (2004) 7 SCC 467, the Hon’ble Apex Court examined the issue of ""public",,,,,

order"" and ""law and order"" and observed as follows:",,,,,

“The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression ""law and order"" is wider in scope",,,,,

inasmuch as contravention of law always affects order, ""public order"" has a narrower ambit, and public order could be affected by only such",,,,,

contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a,,,,,

whole or even a specified locality. The distinction between the areas of ""law and order"" and ""public order"" is one of the degree and extent of the reach",,,,,

of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the,,,,,

maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum,,,,,

of the public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption",,,,,

of disorder that helps to distinguish it as an act affecting ""public order"" from that concerning ""law and order"". The question to ask is: ""Does it lead to",,,,,

disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the,,,,,

tranquility of the society undisturbed?"" This question has to be faced in every case on its facts.""",,,,,

As per the clause (f) of Section 2 of the P.D.Act, a “drug offender†means a person, who manufactures, stocks, imports, exports, sells or",,,,,

distributes any drug or cultivates any plant or does any other thing in contravention of any of the provisions of the Drugs and Cosmetics Act, 1940",,,,,

(Central Act XXIII of 1940), or the Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985) and the rules, notification and",,,,,

orders made under either Act, or in contravention of any other Law for the time being in force, or who knowingly expends or applies any money in",,,,,

furtherance or support of the doing of any of the above mentioned things by himself or through any other person, or who abets in any other manner the",,,,,

doing of any such thing.,,,,,

The personal liberty of an individual, which the law preserves and protects, can also be taken away by following the procedure established by law,",,,,,

when it is used to jeopardize the public good. In the instant case, the commission of alleged offences as indicated in the above table clearly",,,,,

demonstrates that the detenu, along with his associate, clandestinely indulging in procuring ‘Ganja’ to sell the same to youth and people addicted",,,,,

to drugs to make easy money and lead a lavish life, which would certainly disturb the public peace and tranquility. As mentioned above, the detenu,",,,,,

instead of mending himself, committed similar offence after his release on conditional bail in the first crime. So it is imperative upon the officers",,,,,

concerned to pass the order of detention, since the acts of the detenu are prejudicial to the maintenance of public order. The detaining authority had",,,,,

sufficient material to record subjective satisfaction that the detention of the detenu was necessary to maintain public order and even tempo of life of,,,,,

the community. The order of detention does not suffer from any illegality. The grounds of detention, as indicated in the impugned order, are found to",,,,,

be relevant and in tune with the provisions of the P.D. Act. Since the detenu was granted conditional bail in both the cases relied by the detaining,,,,,

authority, there is nothing wrong on the part of the detaining authority in raising an apprehension that there is possibility of the detenu committing",,,,,

similar offences, which would again certainly affect the public health at large. Though the learned counsel for the petitioner contended that the detenu",,,,,

was not supplied with the documents relied upon by the detaining authority in the language known to him, i.e., Hindi, the said contention has been",,,,,

refuted by the respondents in the counter contending that the detenu studied up to intermediate in English medium and he requested the detaining,,,,,

authority to provide him English translated copies of the detention order, grounds of detention and the documents relied upon and accordingly, the",,,,,

detenu was served with the English translated copies within the mandatory period and the detenu acknowledged the receipt of the same by signing,,,,,

each page in English. There is no reply by the petitioner disputing the said contention. Moreover, in the course of submissions, the learned counsel for",,,,,

the petitioner has not pressed this point. Therefore, it is deemed that the detenu has been supplied with the copies of the documents relied by the",,,,,

detaining authority in the language known to him, i.e., English. Moreover, the said contention cannot be a ground to set aside the impugned detention",,,,,

order. The subjective satisfaction reached by the detaining authority is not tainted or illegal on any account. The acts of the detenu cannot be,,,,,

effectively dealt with under special law.,,,,,

Before parting, as righty observed by this Court in Naresh Singh’s case (11 supra), the menace of drug abuse and proliferation of drug trade is",,,,,

an open secret. Drug abuse is not only confined to the urban centres, but has even spread to rural areas. It is common knowledge that drug problems",,,,,

are rampant amongst the youth. The easy availability of drugs has distorted the lives of the many young men and women in our society. In order to,,,,,

ensure a steady supply of drugs for themselves, these young men and women are prone to commit petty offences. The illegal money earned in this",,,,,

activity fuels the other nefarious activities. Therefore, what may patently appear to be a “law and order†problem, on a deeper analysis, emerges",,,,,

as a “public order†problem. Hence, while dealing with preventive detention cases qua offences committed under the NDPS Act, the Courts have",,,,,

to be vigilant with regard to the impact of such offences on the society at large. Thus, the learned counsel for the petitioner is unjustified in claiming",,,,,

that the two cases registered against the detenu should be seen as “law and orderâ€​ problem and not as a “public orderâ€​ problem.,,,,,

Under these circumstances, the detaining authority is justified in passing the impugned detention order. We do not see any merit in this Writ",,,,,

Petition and as such, it is liable to be dismissed.",,,,,

The Writ Petition is, accordingly, dismissed. There shall be no order as to costs.",,,,,

Miscellaneous petitions pending, if any, in this Writ Petition, shall stand closed.",,,,,