The Telangana High Court recently observed that "The preventive detention laws cannot be invoked as an easy way method bypassing the ordinary law and if the detention order is passed, it is very much necessary for the detaining authority to apply its mind and arrive at a conclusion that ordinary law is not capable of acting deterrent against the detenu and thus, detention order needs to be passed."
The Division Bench of Chief Justice Raghvendra Singh Chauhan and Justice B. Vijaysen Reddy further observed,
"the State cannot take advantage of its own lapses, whereby, on one hand, the State does not effectively oppose the bail application or seeks cancellation of bail and on the other hand, State finds an easy way method to pass detention order by invoking preventive detention laws."
The detention order vide 32O/PD-4lHYDl2079, dated 01.02.2020 was passed against Mohd. Nawaz @ Babulal, by the 2nd respondent, Commissioner of Police, Hyderabad, in the exercise of powers conferred under Sub-Section (2) of Section 3 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 and White Collar or Financial Offenders Act, 1986 (Amendment Act No.13 of 2018) and as confirmed by the State vide G.O.Rt.No.661, General Administration (SPL) Law & Order Department dated 03.03.2020, are challenged in this Writ of Habeas Corpus as being illegal and arbitrary.
Further, the detaining authority had considered five cases as grounds for his detention.
The Government Pleader for Home submitted that the detenu is involved in a series of theft cases and in the recent past the detenu was involved in committing theft of cash and mobile phones from the passengers travelling in sharing auto-rickshaw in the limits of Hyderabad and Cyberabad Police Commissionerate along with his associates in an organized manner and he has been creating large scale fear and panic among the general public by committing such offences, and thus he has been acting in a manner prejudicial to the maintenance of public order, apart from disturbing the peace, tranquillity and social harmony in society.
Further it was also stated that there is an imminent possibility of his committing similar offences, which would be detrimental to public order, unless he is prevented from doing so by an appropriate order of detention.
Counsel for the Petitioner submitted that in all the referred crimes, the detenu was released on conditional bail and thereafter, neither he violated any of the conditions imposed by the Court nor was involved in any of the cases.
It was alleged that the detaining authority passed the impugned detention order on flimsy ground without any basis in a mechanical manner, without application of mind.
Further, it was submitted that the crimes wherein the detenu is allegedly involved, can be dealt with under ordinary law.
The Court observed that it appears that in the above crimes the Prosecution opposed the grant of bail to the detenu and even after that, the concerned Courts have granted conditional bails to the detenu.
In this context, the Court noted,
"If the detaining authority feels that even after strongly opposing the bail, the concerned Courts have granted bail, it is always left open for the authorities to move an application for cancellation of bail either before the same Court or higher Court. Without resorting to such steps, the State chose to invoke provisions of preventive detention law and the same amounts to arbitrary exercise of powers conferred under the preventive detention laws." (emphasis supplied)
Further, the Court took into account the fact that the detenu was granted conditional bails and there is no allegation of violation of bail conditions. In such circumstances, the Court observed, the State cannot be permitted to bypass the ordinary law and resort to provisions of preventive detention laws.
Also, the Court was of the view that the impugned detention order is vitiated also for the reason that under the above five crimes relate to specific individuals/victims and come within the ambit of maintenance of law and order and not public order.
In the light of the above discussion, the impugned detention order was set aside. The Writ Petition was allowed.
Case Title: Mohd. Jaffar v. State of Telangana and Ors.
Case No.: WP No. 10230 of 2020
Quorum: Chief Justice Raghvendra Singh Chauhan and Justice B. Vijaysen Reddy
Appearance: Advocate Pendyala Swathi (for the Petitioner); GP for Home S. T. Srikanth Reddy (for respondent/state).
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