Ragula Srikanth vs State Of Telangana

Heard Mrs.Ravula Sowmya Reddy, learned counsel for the petitioner and Sri Mujeeb Kumar Sadasivuni, learned Special Government Pleader appearing for the respondents. Perused the record.

This Writ Petition is filed to issue Writ of Habeas Corpus to direct the respondent No.3 to produce the detenu i.e., Mr.Chekka Kumara Swamy, now detained in Central Prison, Cherlapally, Medchal-Malkajgiri District, before this Hon’ble Court and to set aside the impugned detention order vide proceedings No.563/WRC/CSB-XI/2023, dated 24-08-2023 passed by respondent No.2 and consequential Confirmation Order, if any, passed by respondent No.1 as illegal, arbitrary, improper, unilateral, unconstitutional and violative of Articles 21 and 22 of the Constitution of India and to forthwith release the detenu.

Respondent No.2 had passed the impunged detention order relying on the solitary crime i.e., Crime No.76 of 2023 registered against the detenu for the offences punishable under Sections 8 (c) r/w. Section 20 (b)(ii)(c) of N.D.P.S. Act by Athmakur Police Station, Warangal Commissionerate. The allegation leveled against the detenu is that he is the owner of the subject car involved in the crime and he is illegally transporting 120 Kgs of Ganja worth Rs.24,00,000/-. Accused No.2 is Driver and Accused No.3 is resident of Orissa, who sold Ganja to A-1. Detenu / A-1 was arrested on 29-05-2023 itself. It is relevant to note that Court below has granted conditional bail to him on 26-07-2023.

According to learned counsel for the petitioner and learned Special Government Pleader, the Investigating Officer in the said crime has already completed investigation and laid charge sheet on 26-09-2023 itself. S.C. number is awaited. They would further submit that Government has approved the aforesaid detention order passed by respondent No.2 vide G.O.Rt.No.1225, dated 30-08-2023 and confirmed vide G.O.Rt.No.1373, dated 03-10-2023.

There is no dispute that detention order can be passed relying on solitary crime. At the same time, the detaining authority shall consider the nature of allegations and the manner in which the same were committed. Detaining authority has to consider the entire material on record and has to come to a subjective satisfaction that due to the acts committed by the detenu there was disturbance to the public order. In the present case, there is no consideration of the said aspects by respondent No.2 while issuing the impugned detention order.

Though in the counter there is specific mention that the alleged detenu has been doing business of illegal transportation and the sale of huge Ganja since last 8 years, there is no evidence to the said effect. However, following two (2) crimes were referred in the impugned detention order:

I. Crime No.180 of 2020, for the offences punishable under Sections 8 (c) r/w. Section 20 (b)(ii)(c) of N.D.P.S. Act by Mulugu Police Station, Warangal Commissionerate, on the very same allegation of illegal transportation and sale of 174 kgs., of Ganja.

II. Crime No.5 of 2021, for the offences punishable under Sections 8 (c) r/w. Section 20 (b)(ii)(c) of N.D.P.S. Act by Gudur Police Station, on the very same allegation of illegal transportation and sale of 242 kgs., of Ganja.

However, though the aforesaid two (2) crimes were referred, they were not relied upon by the 2nd respondent – detaining authority. The aforesaid facts would reveal that there is no disturbance to the public order. Criminal law was already set on motion. Even then, without considering the entire material on record and also the fact that the Criminal law was already set on motion, respondent No.2 has passed the impugned detention order.

It is relevant to note that the investigating authority in the aforesaid crime did not file any application seeking cancellation of bail granted to the detenu.

Hon’ble Apex Court in Ashok Kumar Vs. Delhi Administration (1982) 2 SCC 403 the Hon’ble Apex Court held that preventive detention is devised to afford protection to society. The object is to punish a man for having done something but to intercept before he does it to prevent him from doing.

In Ram Manohar Lohia Vs. State of Bihar (1966) 1 SCR 709 the Hon’ble Apex Court held as follows:

“Does the expression "public order' take in every kind of disorder or only some? 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.

It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting public order".

One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State.

In Vijay Narain Singh v. State of Bihar (1984) 3 SCC 14, the Hon’ble Supreme Court explained the phrase ‘habitual criminal’ as follows:

“12. A person is habitual criminal who by force of-habit or inward disposition, inherent or latent in him, has grown accustomed to lead a life of crime. It is the force of habit inherent or latent in an individual with a criminal instinct, with a criminal disposition of mind, that makes him dangerous to the society in general. In simple language the word 'habitually' means 'by force of habit'.”

It is relevant to note that Hon’ble Apex Court and this Court in catena of decisions categorically held that detention authorities shall consider the entire material while passing detention order by invoking their powers under Act 1 of 1986. They have to come to subjective satisfaction before passing detention orders with regard to disturbance caused to public order due to the acts committed by the detenu. In rarest of rare cases, that too, to prevent the detenu from committing similar offences which will disturb the public order, Act 1 of 1986 shall be invoked by issuing preventive detention order. In the present case, there is no consideration of the said aspects by the detaining authority.

As discussed supra, in the present case, detaining authority issued impugned detention order without considering the aforesaid aspects.

In the light of the aforesaid discussion, we are of the considered opinion that impugned detention order vide proceedings No.563/WRC/CSB-XI/2023, dated 24-08-2023 passed by respondent No.2, consequential approval and confirmation orders vide G.O.Rt.No.1225, dated 30-08-2023 and G.O.Rt.No.1373, dated 03-10-2023 respectively passed by respondent No.1, are illegal and they are liable to be set aside and accordingly set aside.

Accordingly, this writ petition is allowed and the detention order vide proceedings No.563/WRC/CSB-XI/2023, dated 24-08-2023 passed by respondent No.2, consequential approval and confirmation orders vide G.O.Rt.No.1225, dated 30-08-2023 and G.O.Rt.No.1373, dated 03-10-2023 respectively passed by respondent No.1, are set aside. Respondents are directed to set the detenu viz., Mr.Chekka Kumara Swamy, free, if he is no longer required in any other criminal case. There shall be no order as to costs.

As a sequel, the miscellaneous petitions, if any, pending in the Writ Petition shall stand closed.