Mohammed Amjad vs State Of Telangana

,,,,,

Mr. Mohammed Amjad, the petitioner, has filed this Habeas Corpus petition on behalf of his son, Mohd. Arbaaz @ Arbaz, aged 21 years, the",,,,,

detenu, challenging the detention order vide SB (I)No.155/PD-3/HYD/2020, dated 16.12.2020, 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.437, General Administration (Spl. (Law & Order)) Department, dated 24.02.2021, passed by",,,,,

respondent No.1.,,,,,

Heard the submissions of Sri C.Sharan Reddy, 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 three criminal cases registered against the detenu in Crime Nos.202/2019 and 278/2020 of",,,,,

Falaknuma Police Station and Crime No.174/2020 of Kalapathar Police Station, the respondent No.2-Commissioner of Police, Hyderabad, passed the",,,,,

impugned detention order, dated 16.12.2020. According to the respondent No.2, the detenu is a ‘Goonda’. He, acting as a leader of a criminal",,,,,

gang, committed offences including brutal murder, attempt to murder with rioting and criminal intimidation using lethal weapons, along with your",,,,,

associates, in an organized manner in the limits of Hyderabad Police Commissionerate, and thus created panic, terror and fear in the minds of general",,,,,

public, thereby disturbing the public order and peace and tranquility in the area. The unlawful activities of the detenu have been causing a feeling of",,,,,

insecurity in the minds of public on a regular basis, which is prejudicial to the maintenance of public order. With a view to prevent the detenu from",,,,,

acting in the manner which is prejudicial to the maintenance of public order, the impugned detention order, dated 16.12.2020, was passed, which was",,,,,

confirmed by the Government, by order, dated 24.02.2021. Hence, this Writ Petition before this Court.",,,,,

The learned counsel for the petitioner vehemently contended that the impugned detention order is vague, irrelevant, 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 ‘goonda’. 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 Crime Nos.202/2019 and 278/2020 and statutory/mandatory bail in Crime No.174/2020 by the Courts concerned. 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 and did not violate 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. Further, the subjective",,,,,

satisfaction recorded by the detaining authority for preventively detaining the detenu is based on insufficient material. 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 Indian Penal Code and Indian Arms Act, the detenu can certainly be tried under the Penal Code and 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.,,,,,

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, along with his associates, has been indulging in grave and dangerous activities of murder, attempt to murder",,,,,

with rioting and criminal intimidation using lethal weapons, in an organized manner. The unlawful activities of the detenu were creating large scale",,,,,

fear, terror and panic among the people and thereby, adversely affecting the public order. In the first crime, i.e., Crime No.202/2019, the detenu, along",,,,,

with his associates, attacked the complainant therein with a sickle on his abdomen causing bleeding injuries. In the second crime, i.e., Crime",,,,,

No.278/2020, the detenu attacked the complainant therein and gave fist blows on his face and pushed him down due to which, the complainant",,,,,

sustained injury on his lips and right elbow. In the third crime, i.e., Crime No.174/2020, the detenu, in order to avenge the murder of his brother,",,,,,

attacked the complainant therein with coconut cutting sickle on his head and other parts of body causing multiple chop and stab injuries. The said,,,,,

person succumbed to injuries while undergoing treatment. Further, the three crimes relied upon for detaining the detenu were committed by him in",,,,,

quick succession. In spite of his arrest and remand in two crimes, he did not mend his attitude and continued to commit similar third offence after his",,,,,

release on bail on conditions. 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 the detaining authority in preventively detaining the detenu is not tainted,,,,,

or illegal. Further, the Advisory Board, in its review meeting held on 21.01.2021, upon hearing the detenu and the concerned investigating officials and",,,,,

upon considering the entire material placed before it, rendered its opinion that there is sufficient cause for detention of the detenu. On considering the",,,,,

opinion of the Advisory Board and upon considering the entire material, the Government confirmed the impugned detention order vide G.O.Rt.No.437,",,,,,

dated 24.02.2021. Therefore, the detaining authority was legally justified in passing the impugned detention order. All the mandatory provisions and the",,,,,

safeguards envisaged under the law were strictly followed, while passing the impugned detention order and hence, the impugned detention order does",,,,,

not suffer from illegality or impropriety and ultimately, prayed to dismiss the Writ Petition.",,,,,

In view of the submissions made by both sides, the point that arises for determination in this Writ Petition is:",,,,,

“Whether the impugned detention order, dated 16.12.2020, passed by respondent No.2 and the consequential confirmation order, dated 24.02.2021,",,,,,

passed by the respondent No.1 are liable to be set aside?â€​,,,,,

POINT: As per the record, by relying on three criminal cases registered against the detenu in Crime Nos.202/2019 and 278/2020 of Falaknuma",,,,,

Police Station and Crime No.174/2020 of Kalapathar Police Station, the respondent No.2-Commissioner of Police, Hyderabad City, passed the",,,,,

impugned detention order, dated 16.12.2020. According to the respondent No.2, the detenu is a ‘goonda’. He, acting as a leader of a criminal",,,,,

gang, committed offences including brutal murder, attempt to murder with rioting and criminal intimidation using lethal weapons, along with your",,,,,

associates, in an organized manner, in the limits of Hyderabad Police Commissionerate, and thus created panic, terror and fear in the minds of general",,,,,

public, thereby disturbing the public order and peace and tranquility in the area. The detenu is a potential threat to the maintenance of public order. In",,,,,

the three cases relied upon by the detaining authority, the detenu was granted conditional bail in two crimes and statutory/mandatory bail in one crime",,,,,

by the Courts concerned. In order to prevent the detenu from indulging in such illegal activities, which are detrimental to the public order, the impugned",,,,,

detention order, dated 16.12.2020, was passed, which was confirmed by the Government by order, dated 24.02.2021.",,,,,

The material placed on record also reveals that the detenu-Mohd.Arbaaz @ Arbaz, S/o. Mohd. Amjad, is alleged to be a ‘goonda’ and has",,,,,

been habitually indulging in the acts of goondaism on a regular basis and has been causing a feeling of insecurity in the minds of public in the limits of,,,,,

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

Occurrence","D a t e of

registration of fir",Offence,Nature

1.,"202/2019 of

Falaknuma

Police Station",02.07.2019,03.07.2019,"Sections 147,

148, 452, 307 r/w

149 of IPC","Section 147, 148 â€

Cognizable/ Bailable

Sections 452, 307 :

Cognizable/ Non-

Bailable

2.,"278/2020 of

Falaknuma

Police Station",23.06.2020,24.06.2020,"Sections 323, 506

of IPC and

Section 25(1-B)

of Arms Act","Section 323 : Non

Cognizable/ Bailable

Section 506 :

Cognizable/ Non-

Bailable Section

25(1-B) of Arms

Act :

Cognizable/Bailable

3.,"174/2020 of

kalapathar Police

Station",20.07.2020,20.07.2020,"Sections 147,

148, 120B, 302,

506 r/w 149 r/w

109 of IPC and

Section 25(1-A)

of Arms Act","Section 147, 148 â€

Cognizable/ Bailable

Section 120B : Non-

Cognizable/ Bailable

Section 302 :

Cognizable/ Non-

Bailable Section 506

: Cognizable/ Non-

Bailable Section

25(1-A) of Arms

Act :

Cognizable/Bailable

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 in the first,,,,,

two cases 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. It is apt to state that the",,,,,

detenu, after release on conditional bail in first crime, committed the second crime; and after release on conditional bail in second crime, committed the",,,,,

third crime. It establishes that the conditions imposed in the bail orders of the first two crimes did not deter him from committing third grave offence of,,,,,

murder. 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 further contended 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 (g) of Section 2 of the P.D.Act, a “goonda†means a person, who either by himself or as a member of or leader of a gang,",,,,,

habitually commits, or attempts to commit or abets the commission of offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of",,,,,

the Indian Penal Code.,,,,,

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 despite grant of conditional bails by the Courts concerned in the first two cases, he did not mend his attitude and committed third",,,,,

crime, which is more grievous in nature. So it is imperative upon the officers concerned to pass the order of detention, since the acts of the detenu",,,,,

created terror and panic in the locality, which is prejudicial to the maintenance of public order. Therefore, the contention raised on behalf of the detenu",,,,,

that the three criminal cases registered against the detenu should be seen as ‘law and order problem’ only and the conditions imposed while,,,,,

granting bail in the first two crimes were not considered by the detaining authority, are unsustainable. Further, it is evident from the record that the",,,,,

detenu committed the three crimes relied upon by the detaining authority in quick succession. Here, it is apt to refer to the decision of the Hon’ble",,,,,

Apex Court in Subrahmanian Vs. State of Tamil Nadu 2012 (4) SCC 699, wherein, it was held as follows:",,,,,

It is well settled that the court does not interfere with the subjective satisfaction reached by the detaining authority except in exceptional and extremely,,,,,

limited grounds. The court cannot substitute its own opinion for that of the detaining authority when the grounds of detention are precise, pertinent,",,,,,

proximate and relevant, that sufficiency of grounds is not for the court but for the detaining authority for the formation of subjective satisfaction that",,,,,

the detention of a person with a view to preventing him from acting in any manner prejudicial to public order is required and that such satisfaction is,,,,,

subjective and not objective. The object of the law of preventive detention is not punitive but only preventive and further that the action of the,,,,,

executive in detaining a person being only precautionary, normally, the matter has necessarily to be left to the discretion of the executive authority. It is",,,,,

not practicable to lay down objective rules of conduct in an exhaustive manner. The satisfaction of the detaining authority, therefore, is considered to",,,,,

be of primary importance with certain latitude in the exercise of its discretion.,,,,,

In the instant case, 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 pertinent, proximate, relevant and in tune with the provisions of the P.D. Act. In view of the facts and",,,,,

circumstances of the case, even the grant of conditional bail to the detenu in the first two crimes and statutory bail in the third crime would not make",,,,,

the detention order unsustainable on any score. 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 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 the provisions of Indian Penal,,,,,

Code and the special law.,,,,,

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.",,,,,