HIGH COURT FOR THE STATE OF TELANGANA THE HON'BLE THE CHIEF JUSTICE [ENTITY] AND THE HON'BLE Dr. JUSTICE [ENTITY] Writ Petition No.4909 of 2019 Date: 27.06.2019 Between: [ENTITY] Petitioner And The [ENTITY], Rep. by its Principal Secretary to Govt (POLL), General Administration (SPL (Law & Order) Dept., Secretariat Buildings, Hyderabad, and others. Respondents Counsel for the petitioner : Sri. [ENTITY] Counsel for the respondents : The Advocate General The Court made the following: [CASE NUMBER] 2 HCJ & Dr. [ENTITY] ORDER:
(Per the Hon'ble Dr. Justice [ENTITY]) Smt. [ENTITY], the petitioner, has filed this present petition on behalf of her husband, [ENTITY], in order to challenge the detention order dated 12.11.2018 passed by the Collector and District Magistrate, Mahabubabad District, the respondent No.2, and the confirmation order dated 02.02.2019 passed by the Principal Secretary to Government (POLL), Government of Telangana, the respondent No.1.
Heard the learned counsel for the parties, and perused the impugned orders.
Briefly, the facts of the case are that by relying on the six recent cases registered against the detenu, the Collector and District Magistrate, Mahabubabad District, the respondent No.2, passed the detention order dated 12.11.2018. According to the respondent No.2, the detenu was involved in as many as six temple theft cases in the limits of Mahabubabad and Khammam Districts. Subsequently, by order dated 02.02.2019, the detention order was confirmed by the Principal Secretary to Government (POLL), Government of Telangana, the respondent No.1. Hence, this writ petition before this Court.
Mr. [ENTITY], learned counsel for the petitioner, has raised the following contentions before this Court:
Firstly, that relying only on the six cases registered against the detenu, the detention order is passed. There is no
3 HCJ & Dr. [ENTITY] iota of evidence about the alleged cases registered against the detenu. The alleged cases do not add up to "disturbing the public order". They are confined within the ambit and scope of the word "law and order". Since the offences alleged are under the [ACT], the detenu can certainly be tried and convicted under the [ACT]. Thus, there was no need for the detaining authority to invoke the draconian [ACT]. Hence, the impugned order tantamount to the colourable exercise of power. Thus, the impugned orders are legally unsustainable.
On the other hand, Mr. [ENTITY], the learned Special Government Pleader, pleads that in each case, allegedly committed by the detenu, he managed to get bail from the Court concerned. The series of crimes allegedly committed by him were sufficient to cause a feeling of insecurity in the minds of the people at large. Since the modus of committing the crime was committing temple theft, it has created sufficient panic in the minds of the general public. Therefore, the detaining authority was legally justified in passing the impugned orders. Hence, the learned Government Pleader has supported the impugned orders.
In view of the submissions made by both the sides, the point that arises for determination in this Writ Petition is whether the detention order, dated 12.11.2018, passed by the 4 HCJ & Dr. [ENTITY] respondent No.2 and the confirmation order, dated 02.02.2019, passed by the respondent No.1, are liable to be set aside?
In catena of cases, the Hon'ble Supreme Court had clearly opined that there is a vast difference between "law and order"
and "public order". The offences which are committed against a particular individual fall within the ambit of "law and order". It is only when the public at large is adversely affected by the criminal activities of a person, is the conduct of a person said to disturb the public order. Moreover, individual cases can be dealt with by the criminal justice system. Therefore, there is no need for the detaining authority to invoke the draconian [ACT] against an individual. For the invoking of such law adversely effects the fundamental right of personal liberty which is protected and promoted by [SECTION] of the [ACT]. Hence, according to the Apex Court, the detaining authority should be wary of invoking the immense power under the Act.
In the case of [PRECEDENT], the Hon'ble Supreme Court has, in fact, deprecated the invoking of the preventive law in order to tackle a law and order problem. The Hon'ble Supreme Court has observed as under:
"54. We have here a case of detention under [SECTION] of the [ACT] which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows AIR 1966 SC 740
5 HCJ & Dr. [ENTITY] 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 [ACT] but disturbances which subvert the public order are. A District Magistrate is entitled to take action under [SECTION] to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances." In the case of [PRECEDENT], the Supreme Court has opined as under:
"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 [PRECEDENT]
6 HCJ & Dr. [ENTITY] 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 tranquility of the society undisturbed?"
In the present case, the detenu is allegedly involved in six criminal cases in [CASE NUMBER]. We shall present in a tabular column the date of occurrence, the date of registration of FIRs, the offences complained of and their nature, such as bailable/non-bailable or cognizable/non-cognizable.
Date of Date of registration Crime No. Offences Nature Occurrence of FIR 75/2018 of [SECTION] & Non-bailable/ Bayyaram PS 28.04.2018 28.04.2018 380 of [ACT] cognizable 76/2018 of [SECTION] & Non-bailable/ 28.04.2018 28.04.2018 Bayyaram PS 380 of [ACT] cognizable 81/2018 of [SECTION] & Non-bailable/ 07.05.2018 07.05.2018 Bayyaram PS 380 of [ACT] cognizable 90/2018 of Intervening [SECTION] & Non-bailable/ Garla PS night of 17.06.2018 380 of [ACT] cognizable 16/17.06.18 210/2018 of [SECTION], Non-bailable/ Khammam 11.06.2018 11.06.2018 380 [ACT] cognizable Rural PS 230/2018 of 1st Week of [SECTION], Non-bailable/ Khanapuram 04.07.2018 July, 2018 380 [ACT] cognizable Haveli PS
Grave as the offences may be, they are temple thefts. So, no inference of disturbance of public order can be drawn. These cases can be tried under the normal criminal law. Hence, there
7 HCJ & Dr. [ENTITY] was no need for the detaining authority to pass the detention order.
A bare perusal of the detention order clearly reveals that the detaining authority is concerned by the fact that in all the criminal cases the detenu has been granted bail by the Court concerned. However, the apprehension of the detaining authority that even in future the detenu is likely to get bail, is highly misplaced. It is the bounden duty of the Police to inform the learned Public Prosecutor about the conduct of an accused and to handover the history-sheet of the accused. If the Police were vigilant enough to collect the data on the alleged offenders, and to furnish the relevant information to the learned Public Prosecutors, the same could be placed by the learned Public Prosecutors before the learned Court. However, it is the Police that has failed to inform the learned Public Prosecutor about the criminal history of the offender. For the fault of the Police, the respondent No.2 cannot be permitted to invoke the [ACT] in order to breach the liberty of an individual.
Therefore, for the reasons stated above, the impugned orders are legally unsustainable.
In the result, the Writ Petition is allowed. The impugned detention order dated 12-11-2018, passed by respondent No.2, and the confirmation order, dated 02-02-2019, passed by the respondent No.1 are set aside. The respondents are directed to 8 HCJ & Dr. [ENTITY] set the detenu, namely Mr. [ENTITY], S/o. [ENTITY], at liberty forthwith, if he is no longer detained in judicial custody in the criminal cases, which have been so far registered against him.
The miscellaneous petitions pending in this Writ Petition, if any, shall stand closed. There shall be no order as to costs.
[ENTITY], HCJ Dr. [ENTITY], J Date: 27.06.2019 Bvv