P. Rambabu vs State Of Telangana

With a request to invoke Article 226 of the Constitution of India and thereby to issue an order in the nature of writ of Habeas Corpus declaring the

order, vide G.O.Rt.No.1840, General Administration (Spl. Law & Order) Department, dated 18.8.2021, whereby the order of detention dated

05.06.2021 was confirmed, as illegal, unconstitutional and violation of the fundamental rights guaranteed under the Constitution of India, the petitioner,

projecting the grievance of his brother-Punem Raju, approached this Court.

The facts of the case and the grounds urged in nutshell are that Punem Raju (hereinafter be referred as “the detenuâ€, for brevity) is the brother

of the petitioner and he was detained invoking 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, fertiliser offenders, food adulteration

offenders, fake document offenders, scheduled commodities offenders, forest offenders, gaming offenders, sexual offenders, explosive substances

offenders, arms offenders, cyber crime offenders and white collar or financial offenders Act, 1986, (hereinafter be referred as “the P.D. Actâ€,

for brevity) on the ground that his activities are prejudicial to the maintenance of public order and that, to prevent him from further indulging in such

type of activities, his detention is necessary. It is stated that the order of detention dated 05.06.2021 was passed in a mechanical manner and the

allegation that the detenu will be causing public disorder is without any basis and indeed, the detenu was granted bail, in the crimes registered against

him, by the Criminal Courts. It is further stated that the Police concerned failed to get the real culprits booked and the detenu is involved in false cases

and the detention of the detenu is nothing but violation of his fundamental rights, more particularly the right to freedom of life and liberty and therefore,

the detention order is not maintainable. It is further stated that the allegation of respondent No.2 is that the detenu is involved in 12 criminal cases, but

those cases are based upon a confessional statement alleged to have been given by the detenu before a Police officer and therefore, the said

confessional statement is invalid and on that ground alone, the impugned order of detention is liable to be set aside. It is also stated that the impugned

order was passed without serving complete material to the detenu and thus, the said order of detention is vitiated under law and further, the offences

alleged to have been committed by the detenu do not fall under the criteria which requires detention and thus, the impugned order is liable to be set

aside.

Heard the submission of the learned counsel appearing for the petitioner as well as the learned Assistant Government Pleader for Home for learned

Additional Advocate General. Also, gone through the contents of the counter-affidavit filed by respondent No.2

In the light of the relief sought for and the grounds based on which the relief is claimed, the point that falls for consideration is:

Whether the order of detention dated 05.6.2021 issued under Section 3(2) of the P.D. Act and the confirmation of the said order of detention through

G.O.Rt.No.1840, General Administration (Spl. Law & Order) Department, dated 18.8.2021, are sustainable under law.

Projecting his version, the learned counsel for the petitioner submitted that the detenu was initially booked for 12 property offences alleged to have

been committed by him which are punishable under Sections 457, 454 and 380 I.P.C. and indeed, the detenu did not commit any such house burglary

as alleged and further, contending that those activities are prejudicial to the maintenance of public order and they disturb the peace, tranquillity and

social harmony in the society, invoking the provisions of the P.D. Act, the detenu was detained and indeed, the detenu did not commit any such

offences and all those offences are based on a confessional statement alleged to have been given by the detenu, but no such confessional statement

was given by the detenu, and even if he had given any such confessional statement, as the same was given during the custody of Police, the said

confessional statement is inadmissible in evidence and further, the detenu was granted conditional bail and he is complying with the conditions, but

without observing all these factors, only with a sole intention to further detain him illegally, the P.D. Act was invoked and narrating the detenu as

goonda, he is detained in Central Prison, Chenchalguda, Hyderabad, and that the order of detention was confirmed subsequently through

G.O.Rt.No.1840, dated 18.8.2021, without proper verification and giving justifiable reasons for such detention and therefore, the petitioner is before

this Court for justice.

Per contra, the learned Assistant Government Pleader for Home for learned Additional Advocate General contended that the acts of the detenu

were causing a sense of insecurity and fear in the minds of general public and as his unlawful activities were prejudicial to the maintenance of public

order and as those activities were disturbing peace, tranquillity and social harmony in the society, the order of detention was passed against the detenu

and therefore, the grounds urged by the petitioner are unjustifiable. Learned Assistant Government Pleader further stated that the necessary

procedure contemplated under law was followed and after hearing the detenu, the Advisory Board rendered its opinion and basing on the said opinion,

the order of detention was confirmed and thus, there is no violation of any legal provision. Learned Assistant Government Pleader further stated that

the detenu is involved in 12 property offences falling within the limits of Khammam Police Commissionerate and Mahabubabad Districts, vide Crime

Nos.44/2020, 47/2020, 120/2020, 141/2020, 239/2020, 248/2020 and 258 of 2020 of Karepalli Police Station, Crime Nos.26/2020, 205/2020, 107/2020

and 108/2020 of Kamepally Police Station, Khammam District and Crime No.162/2020 of Garla Police Station, Mahabubabad District and mere grant

of bail in those cases do not prevent the application of P.D. Act and to prevent the detenu from committing any further offences and also to safeguard

the public at large, the order of detention was passed and indeed, the detenu is a habitual offender and therefore, considering his past history, the

provisions of the P.D. Act were invoked and therefore, the order of detention and the confirmation of the said order though the aforesaid G.O. are

justifiable.

A perusal of the material available on record reveals that the detaining authority placed reliance on five crimes for passing the order of detention

against the detenu which are as follows:-

(1) A case in Crime No.44 of 2020 of Karepalli Police Station alleging that the detenu committed offences punishable under Sections 457 and 380

I.P.C.

(2) A case in Crime No.120 of 2020 of Karepalli Police Station alleging that the detenu committed offences punishable under Sections 454 and 380

I.P.C.

(3) A case in Crime No.141 of 2020 of Karepalli Police Station alleging that the detenu committed offences punishable under Sections 454 and 380

I.P.C.

(4) A case in Crime No.239 of 2020 of Karepalli Police Station alleging that the detenu committed offences punishable under Sections 454 and 380

I.P.C.

(5) A case in Crime No.258 of 2020 of Karepalli Police Station alleging that the detenu committed offences punishable under Sections 454 and 380

I.P.C.

The contents of the counter-affidavit filed by respondent No.2 reveals that in the first case i.e., in Crime No.239 of 2020 of Karepalli Police Station,

the detenu obtained bail and in the rest of the cases, he has not moved any bail applications. The contents of the counter-affidavit also reveal that in all

those five cases, charge sheets were filed and the cases are pending trial. Admittedly, when an accused moves a bail application for grant of bail in

case of non-bailable offences, notice would be served upon the State and the State, represented by the Public Prosecutor, would be given an

opportunity to oppose the bail application and only upon hearing the Public Prosecutor, orders would be rendered in the bail applications. Even if the

Court grants bail, the State is having every authority to seek for cancellation of bail before the Court concerned or to apply to the higher forum

challenging the order of grant of bail. However, in the case on hand, the State does not appear to have done so while bail was granted to the detenu in

Crime No.239 of 2020 of Karepalli Police Station. The admitted version of the State is that in the remaining four cases, the detenu has not moved any

bail applications and therefore, the detenu might have been in judicial custody. In such a scenario, , this Court does not understand as to why again an

order of detention was passed against the detenu.

A perusal of the G.O. which is under challenge reveals that it was issued in a mechanical manner without at least revealing the plea taken by the

detenu before the Advisory Board and the reasons as to why the opinion of the Advisory Board was taken into consideration for confirming the order

of detention. When the case on hand is gone through, we are of the considered view that the offences which are alleged to have been committed by

the detenu at best falls within the ambit of “law and orderâ€​ and not under “public orderâ€​.

In catena of decisions, the Hon’ble Supreme Court clearly held that there exists vast difference between “law and order†and “public

order†and only when public at large is adversely affected by the unlawful activities of a person, then those activities of that person can be held to be

disturbing public order. The Hon’ble Supreme Court also envisaged that while invoking the provisions of the P.D Act which affects the

fundamental right to freedom of life and liberty of an individual, the detaining authority should be more careful and only when convincing and justifiable

grounds exist and when there is dire necessity to invoke such a law, the provisions of the P.D. Act have to be invoked.

In one such cases i.e., in the case of Ram Manohar Lohia v. State of Bihar AIR 1966 SC 740, indicating the distinction between “public

orderâ€​ and “law and orderâ€​, the Hon’ble Supreme Court observed as follows:-

“We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act

in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detained, public disorder is the apprehended result.

Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small

disturbances and at the other the most serious and cataclysmic happenings. Does the expression “public order†take in every kind of disorders or

only some of them? The answer to this serves to distinguish “public order†from “law and order†because the latter undoubtedly takes in all

of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards

quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained

on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal

passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. 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. A mere

disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which

subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of

maintenance of law and order under ordinary circumstances.â€​

The apprehension of the detaining authority is that in case, the detenu is set at liberty, he would take advantage of the liberty thus granted and

would involve in further offences and therefore, detention is essential. However, such an apprehension should not form basis for misplaced detention.

Also, as earlier indicated, the present case at best falls within the purview of “law and order†but not within the purview of “public orderâ€.

Dealing with this aspect, the Hon’ble Supreme Court in a case between Kanu Biswas Vs. State of West Bengal (1972) 3 SCC 831 held as

follows:-

“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 the extent of the reach of the act upon the Society. Public order is what the French call ‘order publique’

and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or

public order, as laid down in the above case, is: Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of

the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed?â€​

The offences alleged to have been committed by the detenu are lurking house trespass or house breaking by night and thefts in dwelling houses.

Thus, those acts do not fall within the ambit of disturbance of public order. Those cases can be tried by the Courts of law and all endeavor by the

State is to see that by producing authentic and convincing evidence, the accused gets convicted. Also, the State by rendering necessary assistance to

the Court can get those criminal cases disposed of on merits as expeditiously as possible. But, employing shortcut method and thereby passing order of

detention cannot be permitted and therefore, such order becomes illegal and unsustainable.

Thus, for the foregoing reasons, we are of the view that the relief sought for has to be granted. Resultantly, the Writ Petition is allowed. The

impugned order of detention dated 05.6.2021 passed by respondent No.2 and the consequential confirmation order vide G.O.Rt.No.1840, General

Administration (Spl. Law & Order) Department, dated 18.8.2021 passed by respondent No.1 are hereby set aside. The respondents are directed to

set the detenu by name Punem Raju, S/o Late Muthaiah, at liberty forthwith, if he is not required to be kept in judicial custody in other criminal cases.

Pending Miscellaneous Petitions, if any shall stand disposed of. No costs.