The High Court · 2025

THE HON'BLE SRI JUSTICE P.SAM KOSHY AI{D THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO WRIT PETITION No.32727 of 2o24 ORDER: lper thc llonl)lc Srr Jusr,ce P.SAM KOSITY) Heard Mr. Alluri Divakar Reddy, learnetl counsel for the petitioner and Mr. Swaroop Oorilla, learned Special Government Pleader attachecl to the office of the learned Additional Advocate General for the rcspor-rdcnts.

2. The instan t is a r.vrit petition which has been filed challenging the order passcd bl respondent No.2 the uide, SB(l) No.722l pD- 2/HYDl2024, claLed 3I.O7.2024, putiing the deterrr.r undcr prc:vcntive detention undcr Sub-Section (l ) & (2) of Sectrcn 3 of tire ,'The Telangana Prcvcrrtion of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, (i oo n das, Imm oral Traffi c Ofl'endc-rs, Lan c1- Grabbers, Spurious Secd ()ffenders, Insecticide Offenders, l-r:rtiliser Ofienders, Food Adulteration Olfenclers, Fake Docurhent Offc:nders, Scheduled Commodities Offenders, Irorest Offenders, Gaming Offcr-rders, Sexual Offenders, Explosive Substances Offenders, Arms Oftcnders, Cyber Crime Offenders and White Collar or Financial Oflr:nders Act, 1986 (for short, 'thc Act of 1986'). The said order furthql stands conlirmed uide ord,er G.o.Rt.No.1297, dated 30.o9.2024 passed by the Advisory Board, which is also questioned through this petition.

3. The brief facts of the case are that the detenu has been detained on 22.08.2024 based on three (03) criminal cases i.e., 1) Cr.No.247 of 2023 under Section 392 of Ipc and Section 2s(r) (A) of Arms Act at Balapur Police Station, 2) Cr.No. ll of 2024 under Section l4Z, l4B, 3O2 read with Section 149 of IpC and Section 2Z (Il (A) of Arms Act, 1959 at Balapur Police Station of Rachakonda police commissionerate and 3) cr.No.l4 of 2023 under section 307 read with Section 34 of IPC of Attapur Police Station of cyberabad police commissionerate under Section 2(a) and 2(gl of Telangana prevention of Dangerous Activities Act, 1986, since the illegal activities of detenu have created a signilicant disturbance in public order and deliberate violation of the law, severely impacting in and around the city of Hyderabad.

4. Thus, the respondent No.2 passed the detention order on 3r.o7.2024 which received subsequent confirmation from respondent No.1 on 3O.O9.2O24. Subsequently, the detenu was physically taken into custody and was lodged at Central prison, Cherlapalli on

22.O8.2024. i\

5. The writ petition is one which has been filed seeking for issuance of a Writ in the nature of Habeas Corpus with praler for production of the detenu before the Court and quashment of the aforementioned orders.

6. Challenging the said impugned order, the leartred counsel for the petitioner contended that a plain reading of the impugned order would reveal that respondent No.2 has taken into consideration primarily three (03) cases u,hich registered against the detenuL during the period between 03.05.2023 to 30.05.2024 and all these matters are being subjected under the criminal justice system affecting specific individual and not public at large, thereby affecting maintenance of law and order and not maintenance of public order. Moreover, he submitted that prevcntive detention is an excepl,ional law which is meant to be invokecl onlv in the rarest of rare case and not as a routine measure. Further, he stated that the stale crimes affecting mere law and order cannot be elevated to the status of crime affecting public order.

7. Learned counsel for the petitioner raising the issue of jurisdiction contended that of the three crimes relied upon by the respondent No.2 in the detention order; two were re5fstered at Balapur police station under Rachakonda Police Comrnissionerate and one at Attapur police station under Cyberabad Police Commissionerate. The counsel pointed out that the Commissioner of Police, Hyderabad City had exceeded his jurisdictional boundaries by considering crimes from outside his territorial jurisdiction to arrive at subjective satisfaction about public order disturbance within the Hyderabad city. This overreach was a mechanical application of power rvithout proper consideration of jurisdictional limitations resulting ln arl illegaI deprivation of the detenu's fundamental rights under Article 21 of the Constitution of India. l,earned counsel for the petitioner further contended that the detention order was arbitrary in nature because the detenu was complying with the existing bail conditions and was regularly appearing before authority concerned as per the bail conditions. Subsequently, a new case Cr.No.229 of 2024 was registered at Langar House Police Station regarding possession of one sharp edged 11 inches blade handle grip 4 inches (total 15 inches). Despite the detenu's continued compliance with the bail conditions, including bi- weekly appearances before the SHO, the detention order was passed with mala fide intention, particularly as the new case under the Arms Act did not quali$r the detenu as a "goonda" and was irrelevant to the grounds for preventive detention. Thus, the learned counsel for the .) petitioner prayed that the order of detention be set aside and the detenue be set frce

9. Per contra, the learned Special Government Pleader contended that the detenu rs a habituai olfender with the criminal history dating back to the year, 2O 13. Further, despite the detenue lacing multiple a-rrests and having been subjected to preventive detention twice under Preventive Detention Act, this intervention has failed to create any deterrent effect on his criminal behavior. However, the detenu has continued to engage in serious offenses including r:ourder, attempt to murder and robbery exhibiting a consistent history of violent and dalgerous conduct.

10. Learned Special Government Pleader further r:ontended that the legal proceedings have proven inadequate in controlling the detenu's criminal activities lr,hich is evidenced by the fact th;lt even after being granted conditional bail, the detenu was apprehended carrying prohibited weapons ignoring the legal restriction. Moreover, the detenu's criminal activities have generated widespread fear and panic within the community, disturbing the public pea,ce and tranquility. Additionally, the local residents live under the c:onstant threat of brutal attacks and violence by the detenu creating a state of insecurity. Thus, the failure of standard leg4] mea_sures to curb his ti. criminal behavior nece ssitated the implementation of preve ntive detention order as an essential measure to protect public safeQr.

11. Lastly, the learned Specia-l Government Pleader contended that the matter of the detenu was also subsequently scrutinized by the Advisory Board which in turn had reviewed the decision of the order of detention and had found the decision to be acceptable in the given facts and circumstances of the case which all the more weakens the case. of the petitioner and the writ pedtion therefore deserves to be rejected.

12. In support of the aforesaid contentions, the leamed Special Government Pleader relied upon the judgments of Bombay High Court in Shaikh Arbaaz vs. State of Maharashtral and Ashok Kisan Jadhav vs. State of Maharashtraz

13. This Bench, after hearing the arguments put forth on either side and on perusa-I of records, concludes that the detention order against the detenu is unjustified and arbitrar5z. The offenses cited do not constitute a thr€at to the public order, peace or safety, and there is insufficient evidence indicating that the detenu poses an imminent danger to society. The preventive detention should only be applied in 1(2024) scc ontine Bom 2738 '?(2021) SCC Ontine Bom 383 exceptional circumstances, which are not evid€:nt in this case. Additionally, it is signilicant to note that the detenu has been granted bail in related criminal matters highlighting a violation of his fundamental rights due to the preventive detention rmposed by the authority concerned. The Court recognizes the m i,suse of preventive detention laws in this situation and acknowledges 1-he undue hardship inflicted on the detenu. L4. It would be reler.ant at this juncture to refer to a recent decision of this Court itself in Writ Petition No.12085 of 2024 de,:;ded on 09.O7.2024 wherein this Cotrrt dealing with a similar situation had referred to a catena of decisiorrs of the Hon'ble Supreme Court i.e. in Mallada K Sri Ram vs. The State of Telangana and Ors.3, Nenavath Bujji Etc. vs. The State of Telangana and Ors.a, Shaik Nazr:en vs. State of Telanganas, Ram Manohar Lohia vs. State of Bihar6, Kanu Biswas vs. State of West BengalT, Khaja Bilal Ahmed vs. State of Telanganas and Ameena Begum vs. The State of Telanganae and trad held as under, v12 "Under the gliuen legal dicfum in a series of de<:i.sions of the Hon'ble Suprem.e Court rekred to in tLrc precedirul paragraphs, '(zoza) rr scc sgz 42024 SCC Online SC 367 '1zcza; s scc o:e 51965 scc online sc 9 '1rszz; : scc 83r tlzozol r: scc oaz '1zozs1 s scc ssz I Page I of 15 ue LnDe no hesitation in reaching to the corrcIusion that in the instant case also onlg because th.e detenu has been charged u.tith simiLar type of offences in an around sixteen cases in a span of around tLvee years bg itself caruwt be said to be actions which can be brought under the puruieu of tlrc detention "octing in ang manner prejudicial to the maintenance of the publb order'. AII these specific ca-ses for uhich he ho.s been charged are cases which are otllenise subjected to trial for the offences.punishable under the proui.sion-s of Indian Penal Code and cannot be generalized and brought utithin th.e puruiew of pubLic order."

15. In contrast, a plain reading of the Bombay High Court's decisions in the case of Shaik Arbaaz (Supra) and Ashok Kisan Jadhav (supra) would reveal that the Bombay High Court took more restrictive view in differentiating public order iand law and order. However, the above two decisions of the Bombay High Court must be read ,in light of the Supreme Court's binding precedents in Ameena Begum (supra) and Nenavath Bujii (supra) which frovide a broader framework in assessing the activities of the detenu which a-re prejudice to the local community and come under the public order or else law and order.

16. For the said reasons, this Bench is neither inclined to accept the arguments presented by' the learned Special Government Pleader relying upon the decisions of Bombay High Court nor the decisions of the Bombay High Court are acceptable particr.rlarly in the light of the r) judgments of the Hon'ble Supreme Court in Ameena Begum (supra) and Nenavath Bujii (supra) which according to us is found to be more appropriate to be followed in the facts of the present case Moreover, this very Bench had dealt with similar rnatter in the recent past relying on the precedents of Ameena Begum (supra) and Nenavath Bujji (supra) allowing simiiar Writ Petitic,n i.e. Writ Petition No.12085 of 2024 decided on 09.O7 .2024 for which reason also we are constrained to take the same view.

17. Further, w,hat this Bench has also considererl is that the opinion of the Hon'lole Supreme Court in none of the judgments rendered in the recent past. the Iatest one being Nenavath Bujji (supra) has carved out any exception like gravity of the offence, nature of the statue under the prosecution as initiated; be it Ex<:ise Act, be it NDPS Act or a serious offence under the Indian Penal (lode or Bharatiya Nyaya Sanhita (BNS). For these reasons also we find it difficult to sustain the arguments advanced by the learned ()overnment Pleader so also in accepting the view of the Bombay H igh Court in the aforesaid two judgments.

18. Keeping in view the aforesajd statutory provisions, particularly the Act of 1986 and the details which are reproduced in the preceding paragraphs, we may now refer to a recent decisi,cn of the Hon'ble l t I Supreme Court in the case of Nenavath Bujji (supra). In the said judgment, the Hon'ble Supreme Court in paragraph Nos.23, 24 and 25 dealing with the explanation attached to Section 2 (a) has held as under, viz., "23. TLe explanation attacLrcd to Section 2(a) of the. Act 1986 reproduced aboue contempLates that 'public order' shall be deemcd to haue been affected aduerselg or shall be deemed likelg to be affected aduerselg, inter alia if any of the octiuities of ong person rekned to in Section 2(a) directlg or indirectlg, are causing or is likelg lo cause ang Lnrm, danger or olarm or feeling of insecuitg among the general public or ang section thereof or o graue or tuidespread danger to life, propertg or public health. The Dxplanation to Section 2(a) aLso prouides that for the purpose of Section 2, o person stwll be deemed to be "acting in ong manner prejudicial to tle maintenance of public order" uhen such person [s a "CAONDA" ond. engaged in actiuities which affect aduerselg or are likelg to affect aduerselg the maintenance of pubLic order. It, tLterefore, becomes necessory to determine uLLether besides tLte person beirLg a 'C'OONDA" his aLleged actiuities are such tuhich aduerselg affected th.e public order or ore likelg to affect the maintenance of public order.

24. The essential concept of preuentiue detention is that the detention of a person is not to punish hint for something he hns done but to preuent him from doing it. The bosis of detention b tlrc sati.sfaction of tlrc executiue .about the likelilrood of the detenu acting in a manner, simiLar to his past acts, uthich is likelg to affect aduerselg the mointenance of public order and, th-erebg preuent him, bg an..order of detention, from doing the same. A ciminal contiL:tion on the other hortd ts for on oct already done u.thich can onlg be possible bg a tial and legal euidence. There i.s no paralLel betu.teen the proseattion in a Court of law and a detention order under the Act 1986. One is a punitiue octi.on and the other is a preuentiue act. In one case a person i-s punished on proof of his guilt, and the standord is proof beyond the reasonable doubt, u.thereas in the other a person is detoined u.tith a uieut to preuent him from doing such act(s) as may be specified i.n the Act authorizing preuentiue detention.

25. The pouer of preuentiue detention is qualitatiu,tlg different from punitiue detention. The pouter of preuentiue Cetentton is a precautionary pou.ter exercised in reasonable anticipation. It maA or ma u not relate to an offence. It ts nol a parallel proceeding. It does not ouerlap tuith prosecution euen if it relies on t:ertain facts for u.thich proseantion mag be launched or mag houe been launched. An order of preuentiue detention, mag be made before or duing prosecution. A.n order of preuenttur: detention maA be made uith Jr utithout prosecut tn and in anticipotion or after discharge or euen acquittal. 'fhe pendencg of prosecution i-s no bar to on order of preuentiuc: detention. An order of preuentiue det<:r,.tion is olso not o bar Lo prosecution. (See : Haradhan Saha u. 'Thet State of W.8., 1974 Cn LJ 14791"

19. Again 1n paragraph No.32 of the said judgrnent, the Hon'ble Supreme Court has in great detail dealt with the e:(pression law and order arrd public order and held as under, viz., "32. The cntcial issue is uthether the actiuities oJ the detenu uLere pre-iudicial to public order. While the exprression 'la ut and order' is uider in scope inasmtch as contrauention of lau-t aLwaAs affects order, 'Public order' has a narrouer ambit, and could be offected bg onlg such contrauention, uhich affects the community or the public at large. Public order is the euen tempo of life of the communitg taking tlrc country as a whole or euen a specified localitg. The distinction befiteen the areas of 'laut ond order' and 'public order' i-s one of degree ond extent of the reacfu of th-e act in question on societg. It i.s the potentialitg of the act to disturb the euen tempo of life of tLe communitg uthich makes it prejudiciol to the maintenance of the public order. If a contrauention in its effect is confined onlg to a feut indiuiduaLs directlg inuolued as distinct from a u.tide spectrum of public, it coutd raise problem of Laut and order onlg. In oth.er u.tords, the tnte distinction between tLLe oreas of laut and order ond public order lies not merelg in tte nature or qualitg of the act, but in the degree and extent of its reach upon societg. Acts similar in nature, but committed in d@rent contexl-s and ciranmstances, might cause different reactions. In one case it might affect specific indiuiduals onlg, and therefore touches the problem of latu and order only, uhile in anotLler it might affect public ord-er. The act bg itself, therefore, is not determinant of its oun grauitA. In its quality it mag not differ from other similar acts, but in its potentiolitg, that is, in its impact on soctetA, it mag be uery different. [See: Union of India u. Amrit Lal Manchnnda, (2OO4) 3 SCC 75.1"

20. In yet another la-nd mark decision in Ameena Begum (supra), a judgment which has been pronounced under the same provision of law, the Hon'ble Supreme Court held at paragraph Nos.34 to 37 as rmder, vtz. , I I l ,1 I I "34. In Kuso Srrh vs. The State of Blhar. Hon'ble Y.V. Chandracltud, J. (as the Chief Justice then u.tos) speoking for the Bench held that: t4 *** The tuo concepts haue u.tell definecl contours, it being uell estabLished that strag and un organi-sed cimes of thefi and assault are not malters of public order since tlrcg do not tend to affect the euen Jlou.t of public life Infroctions of laut are bound in some measure to lead to disorder but eueru infr'tction of latu does not necessailu result tn public disordetr 6 The pouter to $e!o;qL a persotT without the 1afgguard of a court trial is too drostiq to permit o Lerient construction and tLerefore Courts tnust be astute to ensure thot tlrc detaininq authoritu does not tra.rtsqress the limitations subiect to utttich alone the pou)er con be exerctsed (underlining ours, Jbr emphasis)

35. Tunting our attention to section 3(1) of the Act, the Gouernment has to arriue ot a subjectiue satis.fitction that a goonda (ts in the present case) has to be detaine,C, in order to preuent Lim from acting in a monner preju"clicial to the maintenctrrce of public order. Therefore, ue ftst direct ourselues to the examination of what con stitutes ',oultlic order'. Euen uithin the prouisions of the Act. the term ;'public order" has, sticto sensu, been defined in norrou.t tutd restricted terms. An order of detention under section 3(1) o"f th.e Act can onlg be issued against a detenu to preuent him "from acting in anA manner prejudicial to the maintenance of public order". "htblic order" is deftned in the Explanation to se:ction 2(o) of the Act as encompossing situations tfiat cause "h:onn, danger t;1 or alarrn or a feeling of insecuitg among the general public or ang section th.ereof or a graue toide-spread danger to tife or public lrcaLth".

36. Ram Manohar lahia (supra) i_s an autltoitg to relg upon for the proposition tlnt if libertg of on indiuiduaL con be inuaded under statutory rules bg the simple process of moktng of o certain order, LLe can be so depiued. onlg if the ord.er is in consonance with the said. rule. Strict compliance uith the letter of the rule, in such o case, has to be the essence of the matter since the statute Ltos the potentiolitg to interkre uith the personnl libertg of an indiuidual qnd a Court b precluded from going behind its face. Though circumstances may moke it necessary for ordering a detention uithaut trial, but it tuould be perfectlg legitimate to require strict obseruance of the rules in such cases. If there is ong doubt u,thether the rules Lutue been strictlg obserued, that doubt must be resolued_ in fauour of the detenu.

37. Rekha too (supra) prouides a useful guid.e. It is sajd in porograph 3O tLnt: "3O. Wheneuer an order under a preuentiue d.etention laut is challenged one of the questions the court must ask in deciding its legaLitg is: rzas the ordinary lau of the Land sufficient to deal uith the situation? If the ar7s11)er is in the affirmatiue, the d-etention order uill be illegal. In the present case, the clwrge against the detenu tuas of selling expired drugs after clangittg their labels. Surelg the releuant proubions in the penal Cod_e and the Dntgs and Cosmetics Act uere suJficient to deal tuith this situotion. Hence, in our opinion, for this reoson also the detention order in question u)as illegot.,, i

21. Hence, we are of the considered opinion that tree reasoning given by respondent No.2 while passing the impugned c'rder of preventive detention so also the Advisory Board a-ffirming the sarne are not justifiable or satisfactory and thus become difficult to uphold the same. As a consequence, the impugned order dated 31.O7.2024 and the orders passed by the Advisory Board are liable to be set-aside / quashed and it is ordered accordingly. The order of preventive detention and the order passed by the Advisory Board stand quashed. The detenu, as a consequence, if he is otherwise not wanted in any other case cal be released from detention forthwith.

22. Accordingly, the Writ Petition stands allowed. Irlo costs.

23. As a sequel. miscellaneous petitions pending if arly, shall stand clo sed. //TRUE COPY// ^3B1i,l^1,iT',#tis'R'^',J r',r'\ \ l\ \ ,'.- U S€cnoN oFFrcER 1 . The Secretary to Government, The State of Telanganir, GAD, Telangana 2. The Commissioner of Police and Addl. District Magistrarte, (Executive), State, Hyderabad. Hyderabad Police Commissionerate.

3. The Superinlendent, Central Prison, Chedapalli, Medchal-Malkajgiri District. 4. One CC to Sn Alluri Divakar Reddy, Advocate [OPUC] 5. Two CCs to GP for Special GP, High Court for the State of Telangana, at Hyderabad [OUT]

6. Two CC to The GP for Additional Advocate General, High Court for the State of Telangana, at Hyderabad[OUT]

7. Two CD Copies o \ To, TJ GJ I I A HIGH COURT DATED:0710212025 ORDER WP.No.32727 of 2024 c_ :'s 1 HrE S Il I6: tP o o a 1 t o4sutcu€ I (\ ALLOWING THE WRIT PETITION WITHOUT COSTS ,ra \>