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IN THE HIGH COURT FOR STATE OF TELANGANA
R.S. CHAUHAN, B. VIJAYSEN REDDY, JJ.
Badavath Leela – Appellant
Versus
State of Telangana and Others – Respondents
W.P. No. 8765 of 2020
Decided On : 20-08-2020
Constitution of India 1950 – Article 21 – Code of Criminal Procedure 1973 –Section 19 , 24 , 27A,439,344,167(2), 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 Offender, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986 - Section 3 (2) - NDPS Act, 1985 - Section 8(c), 20(b)(ii)(B) - Life and Liberty - Special powers of High Court or Court of Session regarding bail - Procedure when investigation cannot be completed in twenty four hours - Punishment for contravention in relation to cannabis plant and cannabis - Prohibition of certain operations - Impugned order is passed without application of mind and detenu can be dealt with under ordinary law. The detention order was passed mechanically based on solitary offence. The bail petition of detenu is dismissed and be continues to be in judicial custody. There is no proper subjective satisfaction arrived at warranting the 2nd respondent to pass impugned detention order. There is no justification for passing detention order merely because detenu is likely to be released on default bail .The detention order grossly violates detenu's right to life and personal liberty guaranteed under Article 21 of the Constitution of India.
Issue : whether that is a sufficient ground for invoking the extraordinary measure of preventive detention in light of the decision in Rekha?
Held : whether that is a sufficient ground for invoking the extraordinary measure of preventive detention in light of the decision in Rekha?
This question is no longer res integra it was observed therein that preventive detention is not meant to be punitive and should only be used in exceptional cases and not as a substitute for the regular criminal law
Findings of the Court : Factual matrix of the present case Court cannot over-emphasise the need to explain the necessity and the expediency of the preventive detention of the Detenu, keeping in mind that he had become entitled to statutory bail. as a Challan had not been filed within sixty days of his arrest. There is a plethora of precedents to the effect that such detention cannot be clamped down in pique, only because the Detenu has been enlarged on bail by a competent Court. Indeed, it would sound the death knell of the Fundamental Right of personal liberty if preventive detention can be resorted to simply because the State is unable to complete its investigation and present a Challan within the statutory period of sixty ninety days as the case may be. Section 167(2) of the Cr.P.C. would be subverted. Wherever and whenever such action manifests itself, courts of law would stamp it out swiftly and completely - An order of detention has to be resorted to as an extreme and last step only when attempts made by authorities to deal with and prosecute detenu under ordinary law do not yield results. The preventive detention laws cannot be invoked as an easy way of bypassing the ordinary law - Court finds impugned order is passed without any application of mind and on extraneous grounds. Thus, order of detention, passed by second respondent, and consequential order, are unsustainable and are liable to be set aside.
Result : Writ Petition is allowed
ORDER :
1. The detention order vide 12/PD CELL/CCRB/RCKD/2020 dated 12.03.2020 passed against Badavath Kishan S/o Thafya by the 2nd respondent, Commissioner of Police, Rachakonda Commissionerate, in 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 Offender, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986 (Amendment Act No. 13 of 2018) (for short ‘the Act’) and as confirmed by the State vide G.O.Rt. No. 885, General Administration (SPL) Law and Order Department dated 13.05.2020 are challenged in this Writ of Habeas Corpus as being illegal and arbitrary.
2. Heard Mr. P. Trivikram Reddy, learned counsel for the petitioner and Mr. Srikanth Reddy, learned Government Pleader for Home for the respondents.
3. The learned counsel for the petitioner, submitted that the impugned order is passed without application of mind and the detenu can be dealt with under ordinary law. The detention order was passed mechanically based on solitary offence. The bail petition of the detenu is dismissed and be continues to be in judicial custody. There is no proper subjective satisfaction arrived at warranting the 2nd respondent to pass the impugned detention order. There is no justification for passing the detention order merely because the detenu is likely to be released on default bail under Section 167(2) Cr.P.C. The detention order grossly violates detenu's right to life and personal liberty guaranteed under Article 21 of the Constitution of India.
4. Per contra, the learned Government Pleader for Home submitted that the detenu was involved in Crime No. 876 of 2019 under Section 8(c) r/w. Section 20(b)(ii)(B) of NDPS Act, 1985 of Kushaiguda P.S. The detenu was found to be in possession of the narcotic drug “Ganja” weighing 1/2 kg. and “heroin” weighing 25 grams and the same were seized in addition to two cell phones, which were used by him for communication purpose in the commission of offence. After having completed recovery, he was remanded to judicial custody on 26.12.2019. The samples collected from the seized contraband were forwarded to the Forensic Science Laboratories for chemical analysis and report, wherefrom, it was found that it is “Diacetylmorphine” a narcotic drug, “Alprazolam” a psychotropic substance and “Ganja” a Narcotic Drug. The Professor and HOD of Gandhi Medical college furnished adverse effects of Ganja and Heroin on human body and opined that “Ganja” affects mental illness, paranoid behavior, panic and it affect both acute toxic and chronic effect on human body whereas “heroin” affects myocardial damage, breathing is severely slowed and sometimes enough to be life threatening, slowed breathing can also lead to coma and permanent brain damage and also other severe health complications on human body.
5. The learned Government Pleader also submitted that the detenu moved bail petition in Cr. No. 876 of 2019 vide Crl. M.P. No. 91 of 2020 before the Metropolitan Sessions Judge, L.B. Nagar wherein the Police filed a counter opposing the grant of bail to him and the same was dismissed on 05.01.2020. The detenu squarely answers the description of 'Drug Offender' as defined under Section 2(f) of the Act. The activities of the detenu are likely to be prejudicial to the public health and public order and with a view to prevent him from further indulging in such offences, the detention order is passed, therefore, this writ petition is liable to be dismissed.
6. In the detention order, the detaining authority has referred to a solitary criminal case, as the ground case for passing the detention order i.e. Crime No. 876 o
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