SHAHEDA BEGUM Vs. STATE OF TELANGANA

JUDGEMENT

(1.) The petitioner, is the wife of the detenu namely Sri.Mohd.Ghouse Pasha @ Baba, challenging order of detention vide No.38/PD-CELL/CYB/2020, dated 04-09-2020 passed by Commissioner of Police, Cyberabad Police Commissionerate (hereinafter referred as respondent no. 2), exercising power conferred under Section 3(1) & (2) r/w Section 2(a) & 2(g) of 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(Act 1/86), and the same was confirmed on 31-10-2020 vide G. O. Rt. No. 1651, stating that he has been indulging in the acts of goondaism by committing dangerous offences such as gruesome murder and attempt to murder in an organized manner.

(2.) Heard the learned counsels for the parties and perused the documents and impugned order.

(3.) Smt. B. Mohana Reddy, learned counsel for the petitioner has assailed the order impugned by submitting that the detaining authority after referring to 2 offences committed by the detenu in December 2019 and July 2020 under the provisions of Chapter XVI under the IPC, 1860 in the limits of Cyberabad Commissionerate passed the order of detention. That the detaining authority got influenced by the law and order crimes registered against the detenu which formed the basis for their subjective satisfaction, without proper application of mind terming him as Goonda as defined under the Preventive Detention Act. That these two crimes registered in 2019 and 2020 relate to the offence of murder, attempt to murder and therefore order of detention cannot be invoked against the detenu for arriving at subjective satisfaction, as they are the crimes pertaining to law and order, affecting the specific individuals only and not public at large, thus, touching the problem of law and order. That the preventive detention law cannot be invoked in every case as a matter of course and as an alternative method to the punitive law and necessity of invocation of preventive detention arises if and only if activities are affecting public order and every crime registered under chapters XVI or XVII or XXII of the Indian Penal Code cannot form the basis for arriving at subjective satisfaction and passing the detention orders against the individuals and touching their liberty under Article 21 of the Constitution of India as a matter of course. That the procedure established under law should be strictly followed before depriving the liberty of an individual. That the detenu was in Judicial Custody in connection with Cr.No.681/2020 of Mailardevpally P.S., as on the date of passing the detention order and that it is a settled principle in law that the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order. That the detaining authority must show that it is reasonably satisfied on the material that there is likelihood of him being released in the near future and there is every possibility of him indulging into prejudicial activities. The detaining authority without satisfying the mandatory requirement under law passed the present detention order against the detenu while in judicial custody and didn t satisfy the triple requirements as held by the Supreme Court. These crimes do not tend to disturb the even flow of the society. The detaining authority passed the order of detention mechanically without proper application of mind to the facts and circumstances of the case and therefore this order impugned must be quashed.