Kandukuri Mahesh Goud vs Chief Secretary To Government And 2 Others

The father of Sri Kandukuri Sai Teja Goud/detenu filed this petition under Article 226 of the Constitution of India, for issuance of writ in the nature of Habeas Corpus directing the respondents to produce the detenu and to call for the record and suspend order of detention in 177/PD-CELL/CYB/2021, dated 14.12.2021 passed by the Commissioner of Police, Cyberabad City/2nd respondent and to set-aside the order as unlawful and to set the detenu at liberty forthwith.

The brief facts of the case are that the detenu had adverse history of three cases vide a) Cr.Nos.594 of 2021 under Section 393 of IPC, b) 597 of 2021 under Sections 392, 302 read with 34 of IPC, and c) 616 of 2021 under Section 392 of IPC of P.S.Jeedimetla. On reference the 2nd respondent classified the detenu as “Goonda” within the meaning of Section 2 (g) and by considering the above crimes as ground offences and by observing that the detenu has been engaged in committing property offences in an organized way and in one offence the robbery had lead to murder of commuter and these activities of the detenu are prejudicial to maintain the public order and disturbing peace and tranquility in the area. Thus, the 2nd respondent had passed the impugned order under Section 3 (2) of the Prevention of Dangerous, Activities of Bootleggers, Dacoits and other offences or Financial Offenders Act, 1986 (hereinafter ‘the Act’).

We have heard the submissions of learned counsel for the petitioner, learned Assistant Government Pleader for Home for the respondents and perused the materials on record.

The learned counsel for the petitioner would submit that the detenu is innocent, never involved in any criminal activity much less the imputed charges and had been falsely implicated in the crimes, thus he cannot be ranked as Goonda. Further, even as per the first information statements in the registered crimes, no one reported that they had witnessed the offender, nonetheless, the police incriminated the detenu in all crimes based on alleged confessional statements, hence there is not even prima-facie case against him. These aspects are confirming that the order of detention is not based on substantive material and passed contrary to the objectives of legislation and the 2nd respondent had deliberately exceeded the jurisdiction and arrived at hasty decision. Further, the detaining authority failed to comply the mandatory provisions under Section 8 of the Act. Even otherwise the alleged acts are within the ambit of law and order and would not amount to public order disturbance. Furthermore, in all the crimes the detenu had been granted conditional bails, therefore, the order of detention is coloured, unfair to effect his personal liberties. Thus, prayed for declaring that the impugned order is un-lawful and un-constitutional and to set-aside the same.

Further on the aspect of distinction between public order and law and order disturbance the petitioner placed reliance on 1) Ahmed Hussain Vs. Police Commissioner 1997 (2) ALT (Crl) (AP), 2) Arun Ghosh Vs. State of West Bengal AIR 1970 SC 1228, 3) Ashok Kumar Vs. Delhi Administration AIR 1982 SC 1143.

Per contra, the learned Assistant Government Pleader for Home appearing for the respondents contested that the detenu has been continuing the criminal activities in an organized manner and in one case, his attempt to robbery lead to murder. That apart the petitioner was granted bail in the all the crimes as such there is eminent possibility of he indulging in similar offences of robbery, targeting lonely pedestrians by threatening/attacking with knife, which would cause severe harm in the locality particularly to the business communities. As the sense of fear would swamp the public of the city, the situation cannot be attended unless the petitioner is kept in detention, thus, the order of detention is essential to maintain public order, tranquility and peace in the community.

Further in the impugned order, it is evidently stated that in the first offence an attempt of chain snatching of the mother of the complainant, the detenu was identified by the complainant in test identification parade and involvement of other two offences were confessed by the detenu. The detaining authority/2nd respondent on appraisal of the facts and circumstances, rationally deduced that the movement of the petitioner in the society is not safe as there is imminent possibility that the detenu may involve in similar offences, passed the impugned order, thus there is no reason for interference.

In this position, the factor that needs determination is:

‘Whether the impugned order of detention is sustainable under the facts of law?”

POINT:

To justify and sustain the impugned order of detention, the aspects to be established are that the acts of the detenu are causing public order disturbance and the general laws are inadequate to meet the contingency and the preventive detention is essential. The law of preventive detention being jurisdiction of suspicion without any charge or trial and only to prevent the person from committing certain type of offences, it amount to prejudgment and effects the personal liberty guaranteed under Article 21 of the Constitution of India. Thus careful assessment of the grounds is mandatory.

Whether an act of offence form public order disturbance or a law and order issue is vividly dealt in the dictum of Hon’ble Apex Court in Dr. Ram Manohar Lohia Vs. State of Bihar AIR 1966 SC 740, wherein it has been held that, the contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. Further, postulated three concepts i.e. law and order, public order and security of the state. To appreciate the scope and extent of each of them propounded that, one should imagine three concentric circles. The largest circle represents the law and order the next represents the public order and the smallest represents the security of the state. An act might effect law and order but not public order, just as an act might affect public order but not the security of the state.

In Kanu Biswas v. State of West Bengal (1972) 2 SCC 831, the Hon’ble Supreme Court 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 reach of the act upon the society. Public order is something more than ordinary maintenance of law and order.

In Vijay Narain Singh v. State of Bihar (1984) 3 SCC 14 the Hon’ble Supreme Court stated that the law of preventive detention being a drastic and hard law, must be strictly construed and should not ordinarily be used for clipping the wings of an accused, if the criminal prosecution would suffice.

In the light of the above settled propositions, the case facts and circumstances are analysed, the accusations against the petitioner in the crimes are basically a law and order tangle. To expand these acts to be public order disturbance, the detaining authority should form opinion that these acts are causing public disorder. In the impugned order except recording the incidents and observing that it caused tension and insecurity in the local people, no event or any material demonstrating the graveness to draw such conclusion is referred. In the absence of such specifics and subjective study the hypothesis of the detaining authority appears to be founded in routine course with a possibility of over elaboration. Shorn of amplification the alleged offences in the crimes can be effectively dealt with under general penal law and in case of any adverse situation the prosecution/respondents are at liberty to avail remedies under the general law.

Furthermore granting of bail after judicial scrutiny by the competent court, itself is elucidating that, the projected severity had not been accepted. Howsoever, mere granting of bail, at any stretch could be a ground to invoke the preventive detention.

Therefore, we are of the considered opinion that the subjective satisfaction by the detaining authority that the alleged indicted acts of the petitioner are causing alarm or feeling of insecurity among general public is falling short to meet the mandated requirement for ordering preventive detention of the petitioner and the accusation can be effectively coped with under general laws, as the accusations against the detenu in the crimes is law and order issue and not in the grade of public order disturbance. In effect the impugned detention order is legally unsustainable and liable to be set aside.

In the result, the Writ Petition is allowed. The impugned Detention Order No. 177/PD-CELL/CYB/2021, dated 14.12.2021 passed by the 2nd respondent/Commissioner of Police, Cyberabad, Hyderabad, and the consequential confirmation order vide G.O.Rt.No.602, General Administration (Spl. Law & Order)) Department, dated 15.03.2022, passed by the 1st respondent are hereby set aside. The respondents are directed to set the detenu, namely Sri Kandukuri Sai Teja Goud S/o Kandukuri Mahesh Goud, at liberty forthwith, if he is not required in any other legal proceedings.

The miscellaneous petitions pending in this writ petition, if any, shall stand closed. There shall be no order as to costs.