Telangana High Court
Jahangir Bee vs The State Of Telangana on 7 February, 2025
Author: P.Sam Koshy
Bench: P.Sam Koshy
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
WRIT PETITION No.32727 of 2024
ORDER:
(per the Hon’ble Sri Justice P.SAM KOSHY)
Heard Mr. Alluri Divakar Reddy, learned counsel for the
petitioner and Mr. Swaroop Oorilla, learned Special Government
Pleader attached to the office of the learned Additional Advocate
General for the respondents.
2. The instant is a writ petition which has been filed challenging
the order passed by respondent No.2 the vide SB(I) No.122/PD-
2/HYD/2024, dated 31.07.2024, putting the detenu under preventive
detention under Sub-Section (1) & (2) of Section 3 of the “The
Telangana Prevention of Dangerous Activities of Bootleggers, 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 of 1986’). The said order further stands confirmed
Page 2 of 15
vide order G.O.Rt.No.1297, dated 30.09.2024 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 25(1) (A) of Arms Act at
Balapur Police Station, 2) Cr.No.11 of 2024 under Section 147, 148,
302 read with Section 149 of IPC and Section 27 (1) (A) of Arms Act,
1959 at Balapur Police Station of Rachakonda Police Commissionerate
and 3) Cr.No.14 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(g) of Telangana Prevention of Dangerous
Activities Act, 1986, since the illegal activities of detenu have created a
significant 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
31.07.2024 which received subsequent confirmation from respondent
No.1 on 30.09.2024. Subsequently, the detenu was physically taken
into custody and was lodged at Central Prison, Cherlapalli on
22.08.2024.
Page 3 of 15
5. The writ petition is one which has been filed seeking for issuance
of a Writ in the nature of Habeas Corpus with prayer for production of
the detenu before the Court and quashment of the aforementioned
orders.
6. Challenging the said impugned order, the learned 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 which registered against the detenu 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 preventive detention is an exceptional law which is
meant to be invoked only 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 registered at Balapur
police station under Rachakonda Police Commissionerate and one at
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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 without proper
consideration of jurisdictional limitations resulting in an illegal
deprivation of the detenu’s fundamental rights under Article 21 of the
Constitution of India.
8. Learned 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 qualify the detenu as a “goonda” and was irrelevant to the
grounds for preventive detention. Thus, the learned counsel for the
Page 5 of 15
petitioner prayed that the order of detention be set aside and the
detenue be set free.
9. Per contra, the learned Special Government Pleader contended
that the detenu is a habitual offender with the criminal history dating
back to the year, 2013. Further, despite the detenue facing multiple
arrests 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 murder, attempt to
murder and robbery exhibiting a consistent history of violent and
dangerous conduct.
10. Learned Special Government Pleader further contended that the
legal proceedings have proven inadequate in controlling the detenu’s
criminal activities which is evidenced by the fact that 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 peace and tranquility.
Additionally, the local residents live under the constant threat of
brutal attacks and violence by the detenu creating a state of
insecurity. Thus, the failure of standard legal measures to curb his
Page 6 of 15
criminal behavior necessitated the implementation of preventive
detention order as an essential measure to protect public safety.
11. Lastly, the learned Special 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 petition therefore deserves to be
rejected.
12. In support of the aforesaid contentions, the learned Special
Government Pleader relied upon the judgments of Bombay High Court
in Shaikh Arbaaz vs. State of Maharashtra 1 and Ashok Kisan
Jadhav vs. State of Maharashtra 2.
13. This Bench, after hearing the arguments put forth on either side
and on perusal of records, concludes that the detention order against
the detenu is unjustified and arbitrary. The offenses cited do not
constitute a threat 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 Online Bom 2738
2
(2021) SCC Online Bom 383
Page 7 of 15
exceptional circumstances, which are not evident in this case.
Additionally, it is significant 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 imposed by the
authority concerned. The Court recognizes the misuse of preventive
detention laws in this situation and acknowledges the undue hardship
inflicted on the detenu.
14. It would be relevant at this juncture to refer to a recent decision of
this Court itself in Writ Petition No.12085 of 2024 decided on 09.07.2024
wherein this Court dealing with a similar situation had referred to a
catena of decisions 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. 4, Shaik Nazeen vs. State of
Telangana 5, Ram Manohar Lohia vs. State of Bihar 6, Kanu Biswas vs.
State of West Bengal 7, Khaja Bilal Ahmed vs. State of Telangana 8 and
Ameena Begum vs. The State of Telangana 9 and had held as under,
viz.,
“Under the given legal dictum in a series of decisions of the
Hon’ble Supreme Court referred to in the preceding paragraphs,
3
(2023) 13 SCC 537
4
2024 SCC Online SC 367
5
(2023) 9 SCC 633
6
1965 SCC Online SC 9
7
(1972) 3 SCC 831
8
(2020) 13 SCC 632
9
(2023) 9 SCC 587
Page 8 of 15
we have no hesitation in reaching to the conclusion that in the
instant case also only because the detenu has been charged with
similar type of offences in an around sixteen cases in a span of
around three years by itself cannot be said to be actions which
can be brought under the purview of the detention “acting in any
manner prejudicial to the maintenance of the public order”. All
these specific cases for which he has been charged are cases
which are otherwise subjected to trial for the offences punishable
under the provisions of Indian Penal Code and cannot be
generalized and brought within the purview 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 and 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 Bujji (supra) which provide a broader
framework in assessing the activities of the detenu which are
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 particularly in the light of the
Page 9 of 15
judgments of the Hon’ble Supreme Court in Ameena Begum
(supra) and Nenavath Bujji (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 matter in the recent
past relying on the precedents of Ameena Begum (supra) and
Nenavath Bujji (supra) allowing similar Writ Petition i.e. Writ Petition
No.12085 of 2024 decided on 09.07.2024 for which reason also we are
constrained to take the same view.
17. Further, what this Bench has also considered is that the opinion
of the Hon’ble Supreme Court in none of the judgments rendered in
the recent past, the latest 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 Excise Act, be it NDPS
Act or a serious offence under the Indian Penal Code or Bharatiya
Nyaya Sanhita (BNS). For these reasons also we find it difficult to
sustain the arguments advanced by the learned Government Pleader
so also in accepting the view of the Bombay High Court in the
aforesaid two judgments.
18. Keeping in view the aforesaid statutory provisions, particularly
the Act of 1986 and the details which are reproduced in the preceding
paragraphs, we may now refer to a recent decision of the Hon’ble
Page 10 of 15
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. The explanation attached to Section 2(a) of the Act 1986
reproduced above contemplates that ‘public order’ shall be
deemed to have been affected adversely or shall be deemed
likely to be affected adversely, inter alia if any of the
activities of any person referred to in Section 2(a) directly or
indirectly, are causing or is likely to cause any harm, danger
or alarm or feeling of insecurity among the general public or
any section thereof or a grave or widespread danger to life,
property or public health. The Explanation to Section 2(a) also
provides that for the purpose of Section 2, a person shall be
deemed to be “acting in any manner prejudicial to the
maintenance of public order” when such person is a
“GOONDA” and engaged in activities which affect adversely
or are likely to affect adversely the maintenance of public
order. It, therefore, becomes necessary to determine whether
besides the person being a “GOONDA” his alleged activities
are such which adversely affected the public order or are
likely to affect the maintenance of public order.
24. The essential concept of preventive detention is that the
detention of a person is not to punish him for something he
has done but to prevent him from doing it. The basis of
detention is the satisfaction of the executive about the
likelihood of the detenu acting in a manner, similar to his past
acts, which is likely to affect adversely the maintenance of
public order and, thereby prevent him, by an order of
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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 or after discharge or even
acquittal. The pendency of prosecution is no bar to an order of
preventive detention. An order of preventive detention is also
not a bar to prosecution. (See : Haradhan Saha v. The State of
W.B., 1974 Cri LJ 1479]”
19. Again in paragraph No.32 of the said judgment, the Hon’ble
Supreme Court has in great detail dealt with the expression law and
order and public order and held as under, viz.,
“32. The crucial issue is whether the activities of the detenu
were prejudicial to public order. While the expression ‘law
Page 12 of 15and order’ is wider in scope inasmuch as contravention of law
always affects order, ‘Public order’ has a narrower ambit, and
could be affected by only such contravention, which affects
the community or the public at large. Public order is the even
tempo of life of the community taking the country as a whole
or even a specified locality. The distinction between the areas
of ‘law and order’ and ‘public order’ is one of degree and
extent of the reach, of the act in question on society. It is the
potentiality of the act to disturb the even tempo of life of the
community which makes it prejudicial to the maintenance of
the public order. If a contravention in its effect is confined
only to a few individuals directly involved as distinct from a
wide spectrum of public, it could raise problem of law and
order only. In other words, the true distinction between the
areas of law and order and public order lies not merely in the
nature or quality of the act, but in the 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.]”
20. In yet another land 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 under,
viz.,
Page 13 of 15
“34. In Kuso Sah vs. The State of Bihar, Hon’ble Y.V.
Chandrachud, J. (as the Chief Justice then was) speaking for
the Bench held that:
“4.*** The two concepts have well defined contours, it
being well established that stray and un-organised
crimes of theft and assault are not matters of public
order since they do not tend to affect the even flow of
public life. Infractions of law are bound in some
measure to lead to disorder but every infraction of law
does not necessarily result in public disorder. ***
6. *** The power to detain a person without the
safeguard of a court trial is too drastic to permit a
lenient construction and therefore Courts must be astute
to ensure that the detaining authority does not
transgress the limitations subject to which alone the
power can be exercised. ***”
(underlining ours, for emphasis)
35. Turning our attention to section 3(1) of the Act, the
Government has to arrive at a subjective satisfaction that a
goonda (as in the present case) has to be detained, in order to
prevent him from acting in a manner prejudicial to the
maintenance of public order. Therefore, we first direct
ourselves to the examination of what constitutes ‘public order’.
Even within the provisions of the Act, the term “public order”
has, stricto sensu, been defined in narrow and restricted
terms. An order of detention under section 3(1) of the Act can
only be issued against a detenu to prevent him “from acting in
any manner prejudicial to the maintenance of public order”.
“Public order” is defined in the Explanation to section 2(a) of
the Act as encompassing situations that cause “harm, danger
Page 14 of 15or alarm or a feeling of insecurity among the general public or
any section thereof or a grave wide-spread danger to life or
public health”.
36. Ram Manohar Lohia (supra) is an authority to rely upon
for the proposition that if liberty of an individual can be
invaded under statutory rules by the simple process of making
of a certain order, he can be so deprived only if the order is in
consonance with the said rule. Strict compliance with the letter
of the rule, in such a case, has to be the essence of the matter
since the statute has the potentiality to interfere with the
personal liberty of an individual and a Court is precluded from
going behind its face. Though circumstances may make it
necessary for ordering a detention without trial, but it would
be perfectly legitimate to require strict observance of the rules
in such cases. If there is any doubt whether the rules have
been strictly observed, that doubt must be resolved in favour
of the detenu.
37. Rekha too (supra) provides a useful guide. It is said in
paragraph 30 that:
“30. Whenever an order under a preventive detention
law is challenged one of the questions the court must
ask in deciding its legality is: was the ordinary law of
the land sufficient to deal with the situation? If the
answer is in the affirmative, the detention order will be
illegal. In the present case, the charge against the
detenu was of selling expired drugs after changing their
labels. Surely the relevant provisions in the Penal Code
and the Drugs and Cosmetics Act were sufficient to deal
with this situation. Hence, in our opinion, for this reason
also the detention order in question was illegal.”
Page 15 of 15
21. Hence, we are of the considered opinion that the reasoning given
by respondent No.2 while passing the impugned order of preventive
detention so also the Advisory Board affirming the same are not
justifiable or satisfactory and thus become difficult to uphold the
same. As a consequence, the impugned order dated 31.07.2024 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 can be released from detention forthwith.
22. Accordingly, the Writ Petition stands allowed. No costs.
23. As a sequel, miscellaneous petitions pending if any, shall stand
closed.
__________________
P.SAM KOSHY, J
_____________________________________
NAMAVARAPU RAJESHWAR RAO, J
Date: 07.02.2025
GSD