TaxTMI 
TaxTMI 
2024 (3) TMI 1542
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....(2) of the Telangana Prevention of Dangerous Activities of Boot- Leggers, 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 (for short, the "Act 1986") and is directed against the judgment and order passed by a Division Bench of the High Court for the State of Telangana at Hyderabad (Special Original Jurisdiction) dated 16.09.2023 in Writ Petition No. 26941 of 2023 filed by the appellant herein by which the Division Bench rejected the writ petition and thereby declined to interfere with the order of preventive detention passed by the Commissioner of Police Rachakonda Commissionerate, State of Telangana dated 12.09.2023 in exercise of his powers under Section 3(2) of the Act 1986. A. FACTUAL MATRIX 5. The order of detention dated 12.09.2023 passed by the respondent No. 2 herein reads thus: "ORDER OF DETENTION ....
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....mmissionerate. Among the above offences, (02) offences vide Cr. Nos. 1) 129/2023 and 2) 106/2023 were reported to be out of this Commissionerate limits and as above (02) offences committed by the proposed detenu are referred to as criminal history of the proposed detenu and not relied upon .. The remaining (02) offences pertaining to this Commissionerate vide Cr Nos: 1) 39/2023, 2) 107/2023 of Madgul P.S. are considered as grounds for his detention. The offender/proposed detenu committed all the above Property theft offences/gold chain snatching offences continuously, repeatedly in quick succession and fall within proximity period and committed in one police station limits i.e. Madgul PS. The offender/proposed detenu along with his associates has been committing offences continuously, and repeatedly in order to earn easy money to lead lavish life, which are punishable under chapter XVII of Indian Panel Code. He is also committing illegal acts (thefts) involving breach of peace and public tranquility. The continuous presence of the offender in the area is detrimental to the maintenance of Public Order, apart from disturbing the peace, tranquility ....
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....: 285/2023. Police filed counter and prosecution opposed not to grant bail to him. Accordingly, the bail petition was dismissed on 24-08-2023. The proposed detenue again filed fresh bail petition in two ground cases vide Cr Nos: 1) 39/2023 of PS Madgul, 2) 107/2023 of PS Madgul before the Hon'ble JFCM at Amangal. Police filed counters opposing to grant bail. Even though, both the bail petitions were allowed by granting conditional bail to the proposed detenu on 05-09-2023 vide Crl MP Nos: 1) 337/2023, 2) 307/2023. Consequently, he was released in two ground cases vide release order Dis Nos: 1) 1741/2023, 2) 1742/2023 respectively. He was also granted bail in all other remaining history cases and consequently released from jail after furnishing sureties. The conditions imposed by the Court in two ground cases are i) The offender/proposed detenu shall not tamper the witnesses/victim during the course of further investigation, ii) he is directed to appear before the Court as and when directed without fail, iii) He is directed not to leave the State without permission of the Court. I have perused all the above conditions of the bail and however, those con....
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....l 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 and white collar or financial offenders Act 1 of 1986 (Amendment Act no. 13 of 2018)" and that you have been habitually engaging yourself in unlawful acts and indulging in committing of Property Offences, Robberies/Gold Chain Snatching offences including sacred Mangalasutras by using criminal force on women folk in Public streets continuously, repeatedly in one localised area in Madgul PS limits and thereby, creating widespread fear, panic among the general public and thus your activities are prejudicial to the maintenance of Public Order and adversely affecting the society. Thus, in the recent past, during the year 2023, in quick succession, you along with your associates were involved in (04) offences under penal sections covered by Chapter XVII of Indian Penal Code, 1860, vide Cr. Nos.) 129/2023 U/s 379 IPC of PS Chinthapally, 2) 39/2023 U/s 394 IPC of Madgu....
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.... her tiffin carrier box and fled away from the place. Further, she added that she can identify them if she sees them again. Hence, she requested to take necessary action against the persons. Basing on the above contents, a case in Cr No: 39/2023 U/s 394 IPC has been registered and taken up investigation. During the course of investigation, the IO visited the scene of offence and recorded the details of the scene of offence observation in Crime Details Form (CDF). IO examined the complainant, other witnesses who got panicked on seeing the incident in broad day light and recorded their detailed statements. While the investigation was in progress, it was detected by arresting the accused/proposed detenu in Cr No. 107/2023 u/s 392 IPC of Madgul PS on 12-08-2023. During the examination, he confessed his guilt of offence of the above case and other offences as well. The offender/propose detenu confessed that they spent entire booty for their lavish expenses. Role & participation of this proposed detenu :- It was made out that the offender/proposed detenu Nenavath Ravi (A-3) was sitting in rear side seat of the auto along with A-4 and they noti....
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.... the offenders. While the investigation was in progress, the police Madgul arrested the offender/proposed detenu Nenavath Ravi on 12-08- 2023 at 1230 hours Cr. No. 107/2023 of PS Madgul and produced before the Hon'ble JFCM at Amangal for judicial remand and lodged in Central Prison Cherlapally. In pursuance of his confession, police seized stolen booty i.e. 1) Honda Shine Motor Cycle BR No: TS 05 EZ 6413 pertaining to Cr No. 129/20232 of PS Chintapally from the house of his relative in Manneguda village at his instance in the presence of mediators. Further, the investigating Officer seized 1) One Auto bearing No: TS 12 UA 7860, 2) One Splendor Plus bike bearing No: TS 05 FK 9086 which were used for commission of offences have also been seized from the possession of his associates at his instance. In addition, Gold jewellery in all cases totaling 11.7 tolas was also seized from the possession of his associate Munavath Ramesh (A- 1) at the instance of this proposed detenu and other associates. The case is UI for collecting further evidence. Linking Evidence: i) In pursuance of his confession, Police seized stolen booty i.e. Gold pusthe....
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....07-08-20 23 vide Crl MP No. 285/2023. Police filed counter and prosecution opposed not to grant bail to you. Accordingly, the bail petition was dismissed on 24-08-2023. You have again filed fresh bail petitions in two ground cases vide CR Nos: 1) 39/2023 of PS Madgul, 2) 107/2023 of PS Madgul before the Hon'ble JFCM at Amangal. Police filed counters opposing to grant bail. Even though, the bail petitions were allowed by granting conditional bail to you on 05-09-2023 vide Crl Mp Nos: 1) 337/2023, 2) 307/2023. Consequently, you were released in two ground cases vide release order Dis Nos: 1) 1741/2023, 2) 1742/2023 respectively. You were also granted bail in all other remaining history cases and consequently released from jail after furnishing sureties. The conditions imposed by the Court in two ground cases are i) The offender/proposed detenu shall not tamper the witnesses/victim during the course of further investigation, ii) he is directed to appear before the court as and when directed without fail, iii) He is directed not to leave the state without permission of the Court. I have perused all the above conditions of the bail and however, those condi....
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....lant be preventively detained. B. IMPUGNED JUDGMENT OF THE HIGH COURT 8. The appellant detenu being aggrieved by the order of preventive detention preferred Writ Petition No. 26941 of 2023 in the High Court for the State of Telangana at Hyderabad seeking a writ of Habeas Corpus. The High Court vide its impugned judgment and order declined to interfere and accordingly rejected the writ petition. 9. The High Court while rejecting the writ application filed by the appellant detenu made the following observations: - "16. While passing the detention order, the detaining authority not only considered the commission of offences committed by the detenus and their associates, but also considered its impact disturbing 'public order' and also the modus operandi adapted by them in commission of offences. Therefore, in order to prevent the detenus from committing similar offences, the impugned detention order was passed. xxx xxx xxx 21. As discussed above, the detenus have committed the aforesaid two (02) offences of robbery and chain snatchings and creating panic and scare among the public, especially in women folk. Thus, they have engaged in unlawful acti....
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....on 2(g) of the Act 1986. In other words, mere registration of the FIRs for the offences of theft, robbery etc. is not sufficient to arrive at the subjective satisfaction that the alleged activities of the appellant detenu are prejudicial to the maintenance of public order. b. As per the explanation to Section 2(a) of the Act 1986, the activities in question must cause "harm, danger or alarm or a feeling of insecurity among the general public or any section thereof to be prejudicial to public order". c. The criminal cases which have been registered against the appellant detenu involve the ordinary "law and order" problems or situations. The appellant detenu was granted bail in all the FIRs registered against him after giving an opportunity of hearing to the State. If it is the case of the State that the appellant detenu continued to indulge in the anti-social activities, the State ought to have approached the concerned court for cancellation of bail. Issuance of a preventive detention order which drastically curtails the appellant's right to liberty under Article 21 of the Constitution is certainly neither the most suitable nor the least restrictive method of p....
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....as regards the alleged crime, etc. It cannot be said that there was no material worth the name before the Detaining Authority to arrive at the subjective satisfaction that the activities of the appellant detenu are prejudicial. c. Indulging repeatedly, in the activity of snatching of gold chains from the necks of women folk has created an atmosphere of panic and scare in the locality. 15. In such circumstances referred to above, the learned counsel prayed that there being no merit in this appeal, the same may be dismissed. E. ANALYSIS 16. Having heard the learned counsel appearing for the parties and having gone through the materials on record the only question that falls for our consideration is whether the High Court committed any error in rejecting the writ petition filed by the appellant detenu and thereby affirming the order of preventive detention passed by the Detaining Authority? 17. Section 2(a) of the Act 1986 reads thus: "(a) "acting in any manner prejudicial to the maintenance of public order" means when a boot-legger, a dacoit, a drug- offender, a goonda, an immoral traffic offender, Land-Grabber, a Spurious Seed Offender, an Insecticide O....
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....s according to the explanation to Section 2(a) of the Act 1986, it is such a "GOONDA" who for the purpose of Section 2 of the Act 1986 shall be deemed to be a person "acting in any manner prejudicial to the maintenance of public order" and against whom an order of detention may lawfully be made. 21. Further, sub-section (1) of Section 3 confers power on the State Government and a District Magistrate or a Commissioner of Police as the case may be under the direction of the State Government to detain a person on being satisfied that it is necessary to do so with a view to prevent him from acting in any manner prejudicial to the maintenance of "public order". 22. In the aforesaid context, we may refer to a decision of this Court in Pushkar Mukherjee v. State of West Bengal reported in (1969) 1 SCC 10: "13. ... Does the expression "public order" take in every kind of infraction of order or only some categories thereof. It is manifest that every act of assault or injury to specific persons does not lead to public disorder. When two people quarrel and fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder. ....
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....and, thereby prevent him, by an order of detention, from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between the prosecution in a Court of law and a detention order under the Act 1986. One is a punitive action and the other is a preventive act. In one case a person is punished on proof of his guilt, and the standard is proof beyond the reasonable doubt, whereas in the other a person is detained with a view to prevent him from doing such act(s) as may be specified in the Act authorizing preventive detention. 25. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention, may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation ....
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....beas corpus was a prerogative writ, that is, one issued by the King against his officers to compel them to exercise their functions properly. The practical importance of habeas corpus as providing a speedy judicial remedy for the determination of an applicant's claim for freedom has been asserted frequently by judies and writers. Nonetheless, the effectiveness of the remedy depends in many instances on the width of the statutory power under which a public authority may be acting and the willingness of the Courts to examine the legality of decision made in reliance on wide ranging statutory provision. It has been suggested that the need for the "blunt remedy" of habeas corpus has diminished as judicial review has developed into an ever more flexible jurisdiction. Procedural reform of the writ may be appropriate, but it is important not to lose sight of substantive differences between habeas corpus and remedies under judicial review. The latter are discretionary and the court may refuse relief on practical grounds; habeas corpus is a writ of right, granted ex debito justitiae." 29. The ancient prerogative writ of habeas corpus takes its name from the two mandatory words "habea....
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....er set him free then and there if there is no legal justification for the imprisonment, or see that he is brought speedily to trial. Habeas Corpus is available against any person who is suspected of detaining another unlawfully and not merely against the police or other public officers whose duties normally include arrest and detention. The Court must issue it if it is shown that the person on whose behalf it is asked for is unlawfully deprived of his liberty. The writ may be addressed to any person whatsoever an official or a private individual-who has another in his custody. The claim (for habeas corpus) has been expressed and pressed in terms of concrete legal standards and procedures. Most notably, the right of personal liberty is connected in both the legal and popular sense with procedures upon the writ of habeas corpus. The writ is simply a judicial command directed to a specific jailer directing him or her to produce the named prisoner together with the legal cause of detention in order that this legal warrant of detention might be examined. The said detention may be legal or illegal. The right which is sought to be enforced by such a writ is a fundamental right of a citize....
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.... degree and extent of its reach upon society. Acts similar in nature, but committed in different contexts and circumstances, might cause different reactions. In one case it might affect specific individuals only, and therefore touches the problem of law and order only, while in another it might affect public order. The act by itself, therefore, is not determinant of its own gravity. In its quality it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very different. [See: Union of India v. Amrit Lal Manchanda, (2004) 3 SCC 75.] 33. We have noticed over a period of time that in reports sponsoring preventive detention the officers concerned rely on statements of few individuals residing in the concerned locality so as to project existence of an atmosphere of panic or fear in the minds of the people residing in that locality. While recording such statements, the individuals concerned are assured that their identity would not be disclosed so that the maker of the statement may not get into any difficulty. Some of the State enactments relating to preventive detention, for instance, Section 9 of the Gujarat Prevention of Anti-....
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.... stress on the fact that in the year 2023 in quick succession four FIRs came to be registered against the appellant for the offence of theft, robbery etc. However, the Detaining Authority took into consideration only two FIRs registered for the offences said to have committed within his territorial jurisdiction. The Detaining Authority in its order of detention has clearly stated that he has taken into consideration only the two FIRs registered for the alleged offence committed within his territorial jurisdiction. The Detaining Authority in clear terms has stated that he could not have made the other two FIRs referred to in the order of detention as the basis for arriving at the subjective satisfaction that the activities of the appellant detenu are prejudicial to the maintenance of the public order. However, after saying so, the Detaining Authority has in so many words stated that the other two FIRs have been considered to look into the criminal history of the appellant detenu. 36. We are of the view that in the aforesaid context, the Detaining Authority is not correct and he could be said to have taken into consideration something extraneous. 37. In the case of Ameena Begum....
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....could qualify as a ground to order detention. 53. Although the Commissioner sought to project that he ordered detention based on the said 5 (five) FIRs, indication of the past offences allegedly committed by the detenu in the detention order having influenced his thought process is clear. With the quashing of the order of detention dated 4-3-2021 by the High Court and such direction having attained finality, it defies logic why the Commissioner embarked on an elaborate narration of past offences, which are not relevant to the grounds of the present order of detention. This is exactly what this Court in Khaja Bilal Ahmed [Khaja Bilal Ahmed v. State of Telangana, (2020) 13 SCC 632 : (2020) 4 SCC (Cri) 629] deprecated. Also, as noted above, this Court in Shibban Lal Saksena [Shibban Lal Saksena v. State of U.P., (1953) 2 SCC 617 : AIR 1954 SC 179] held that such an order would be a bad order, the reason being that it could not be said in what manner and to what extent the valid and invalid grounds operated on the mind of the authority concerned and contributed to his subjective satisfaction forming the basis of the order." (Emphasis supplied) 38. Ameena Begum (supra) ha....
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....nal antecedents only if they have a direct nexus or link with the immediate need to detain an individual. If the previous criminal activities of the appellant could indicate his tendency or inclination to act in a manner prejudicial to the maintenance of public order, then it may have a bearing on the subjective satisfaction of the detaining authority. However, in the absence of a clear indication of a causal connection, a mere reference to the pending criminal cases cannot account for the requirements of Section 3. It is not open to the detaining authority to simply refer to stale incidents and hold them as the basis of an order of detention. Such stale material will have no bearing on the probability of the detenu engaging in prejudicial activities in the future." (Emphasis supplied) 39. Ameena Begum (supra) has also referred to in para 53 of its judgment to the decision of this Court in Shibban Lal Saksena v. State of Uttar Pradesh and Others reported in (1953) 2 SCC 617, wherein Justice B.K. Mukherjea speaking for the Bench observed as under: "8. The first contention raised by the learned counsel raises, however, a somewhat important point which requires careful ....
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.... the aforesaid, two propositions of law are discernible. First, in the case on hand if the Detaining Authority thought fit to eschew from its consideration the two FIRs registered outside his territorial jurisdiction then he could not have made such FIRs as the basis to arrive at the subjective satisfaction that the appellant detenu is a history sheeter. Secondly, if at all the Detaining Authority wanted to take into consideration the two FIRs registered with the police station not falling within his territorial jurisdiction then he should have recorded the subjective satisfaction that the incidence of the two FIRs created "public disorder". In other words, as observed by this Court in Ameena Begum (supra) habituality of committing offence cannot, in isolation, be taken as a basis of any detention order; rather it has to be tested on the matrices of "public order". It is only those cases where such habituality has created disturbance of public order that they could qualify as a ground to order detention. 41. The learned counsel appearing for the appellant detenu is also right in his submission that if it is the case of the Detaining Authority that there was no other option but t....
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....rosecution should seek for the cancellation of his bail and/or move an appeal to the Higher Court. But definitely seeking shelter under the preventive detention law is not the proper remedy under the facts and circumstances of the case. " (Emphasis supplied) ii. Summary of the Findings. 43. We summarize our conclusions as under: - (i) The Detaining Authority should take into consideration only relevant and vital material to arrive at the requisite subjective satisfaction, (ii) It is an unwritten law, constitutional and administrative, that wherever a decision-making function is entrusted to the subjective satisfaction of the statutory functionary, there is an implicit duty to apply his mind to the pertinent and proximate matters and eschew those which are irrelevant & remote, (iii) There can be no dispute about the settled proposition that the detention order requires subjective satisfaction of the detaining authority which, ordinarily, cannot be questioned by the court for insufficiency of material. Nonetheless, if the detaining authority does not consider relevant circumstances or considers wholly unnecessary, immaterial and irrelevant circumst....
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....e of application of mind to the pertinent and proximate material and vital matters would show lack of statutory satisfaction on the part of the detaining authority. iii. The Saga Continues 44. We are dealing with a litigation arising from an order of preventive detention passed by the State of Telangana under the provisions of the Act 1986. 45. This is one more litigation going against the State of Telangana. We remind the State of Telangana of what has been observed by this Court in Mallada K. Sri Ram v. State of Telangana reported in (2023) 13 SCC 537 in para 17: "17. It is also relevant to note, that in the last five years, this Court has quashed over five detention orders under the Telangana Act of 1986 for inter alia incorrectly applying the standard for maintenance of public order and relying on stale materials while passing the orders of detention. At least ten detention orders under the Telangana Act of 1986 have been set aside by the High Court of Telangana in the last one year itself. These numbers evince a callous exercise of the exceptional power of preventive detention by the detaining authorities and the respondent-state. We direct the respondents to....
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....aterial on record including representation if any, of the detenu. 51. In Telangana also, under the Act, 1986, Section 9 gives expression to this constitutional requirement, and provides for the constitution and composition of an Advisory Board for the purposes of the Act, the relevant provision reads as under: - "9. Constitution of Advisory Boards. (1) The Government shall, whenever necessary, constitute one or more Advisory Boards for the purposes of this Act. (2) Every such Board shall consist of a Chairman and two other members, who are, or have been Judges or are qualified to be appointed as Judges of a High Court." 52. Section 10 of the Act, 1986 provides for the reference and review of an order of detention passed under the Act by the Advisory Board. It states that any order of detention that has been made under the Act shall be placed before an Advisory Board thereunder within three-weeks from the date of its passing, along with the grounds on which such an order was made, the representation of the detenu if any, and the report of the officer empowered under the Act. The relevant provision reads as under: - "10. Reference to Advisory....
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.... a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board." 54. Section 12 of the Act, 1986 provides that where the Advisory Board in its report is of the opinion that sufficient cause exists warranting detention, the Government may confirm the detention i.e., it gives the appropriate Government the discretion to either confirm or revoke the order of detention. But where the Advisory Board in its report is of the opinion that no sufficient cause exists for the detention of the detenu, the same is binding on the Government, and the detenu is forthwith required to be released. The relevant observations read as under: - "12. Action upon report of Advisory Board. (1) In any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period, not exceeding the maximum period specified in section 13 as they think fit. (2) In any case, where the Advisory Board has reported that there is, in its opinion, no sufficient ca....
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....e and should not shy away from expressing the same in its report. 59. As stated by us above, preventive detention being a draconian measure, any order of detention as a result of a capricious or routine exercise of powers must be nipped in the bud. It must be struck down at the first available threshold and as such, it should be the Advisory Board that must take into consideration all aspects not just the subjective satisfaction of the detaining authorities but whether such satisfaction justifies detention of the detenu. The Advisory Board must consider whether the detention is necessary not just in the eyes of the detaining authority but also in the eyes of law. 60. The requirement of having persons who have been or are qualified to be High Court judges in the Advisory Board is not an empty formality, it is there to ensure that, an order of detention is put to robust scrutiny and examined as it would have been by any ordinary court of law. Otherwise, the purpose of independent scrutiny could very well have been served by having any independent persons, and there would have been no need to have High Court judges or their equivalent. Thus, it is imperative that whenever an ord....