PNR,J + Dr.GRR,J 3 WP Nos.32490 & 32525 of 2021 4. It is further asserted that these two detenues applied to grant bail on 13.8.2021 and 16.9.2021; as prosecution vehemently

opposed granting of bail, both bail applications were rejected.

However, the Detaining Authority anticipated that since no charge

sheets were filed within the statutory time, there was every

possibility of statutory bail being granted to them, the order of

detention was passed to prevent the detenues being set free. As

anticipated, on 20.10.2021 statutory bail was granted to both

detenues. The Government approved detention order by order

dated 1.10.2021 and on review, the Advisory Board confirmed the

decision of the Detaining Authority to detain the detenues in its

review meeting held on 27.10.2021. Based on the report of the

Advisory Body, the Government confirmed the order of detention

by order dated 25.11.2021 in case of Mahmood Bin Alvi and by

order dated 18.11.2021 in case of Ayub Bin Alvi. It is asserted

that having regard to the previous history of involvement in several

crimes and involvement in heinous crimes of committing murder

for gain and to have over all control in the locality to commit

crimes, it is no more desirable to allow these detenues to go scot-

free and allow them to indulge in committing further crimes which

actions would be prejudicial to the maintenance of public order,

therefore, detention is necessary.

5. Extensive submissions are made by learned counsel for

detenues and learned Government Pleader for Home. Both counsel placed extensive reliance on decisions of this Court and the Hon'ble Supreme Court.

3

PNR,J + Dr.GRR,J 4 WP Nos.32490 & 32525 of 2021 6. It is the assertion of learned counsel for detenues that the crimes registered against the detenues do not attract public order.

What is alleged in Crime No. 243 of 2021 was a result of animosity

between the deceased and detenue and this solitary instance

cannot be the basis to resort to preventive detention. She would

submit that even according to the prosecution, it is a case of

murder to settle scores against the deceased as they bore grudge

against him in trying to prevent their activities. The other crime

reported against the detenues is an offence of theft of two wheeler

motor vehicles. She would therefore submit that these two crimes

are routine law and order problems and do not attract disturbance

to public order requiring preventive detention.

7. Per contra, according to learned Government Pleader for

Home, antecedent activities of the person can be looked into to assess the mind set of a person who frequently indulges in crimes, though, ultimately he may have been acquitted. The criminal bent of mind and motive to create panic and insecurity in the mind of people at large is evident in the manner in which victim was killed to eliminate rival person in the community and to gain control over the area so that they can indulge in illegal activities affecting ordinary people. He would therefore submit that on noticing the involvement in two recent crimes, the Detaining Authority has looked into the previous conduct to assess the bent of mind and having assessed that it is no more desirable to let them free, rightly concluded that the detenues be detained.

8. While considering a challenge to the order of detention, what is required to be seen by the Court is whether due procedure was

4

PNR,J + Dr.GRR,J 5 WP Nos.32490 & 32525 of 2021 followed and whether there was application of mind to consider all aspects requiring detention. Once a decision is arrived by

observing the due formalities and on due assessment of the

involvement of the detenues, the Court cannot interfere with the

decision to detain the detenues.

9. Learned Government Pleader contended that as held by the

Hon'ble Supreme Court in Haradhan Shah vs. State of West Bengal¹, preventive detention is a precautionary measure to ensure that detenue do not repeat crimes causing hardship to public at large, that Article 14 of the Constitution of India is inapplicable and that merely detenues were granted bail is no ground to hold the detention as illegal. He would submit that even a solitary instance can be a good ground to detain as held by the Hon'ble Supreme Court in Abdul Sathar Ibrahim Manik Vs. Union of India². He would further submit that detaining authority can take note of antecedents of the person to assess his criminal behaviour and possibility of he indulging in crimes in future as held by the Hon'ble Supreme Court in Harpreet Kour (Mrs) vs. State of Maharashtra³. On review of precedent decisions, in W.P.No.102 of 2021 this Court upheld the detention on a solitary crime and in anticipation of securing bail.

10. Two competing aspects throw up whenever an issue of preventive detention comes up. On the one side is the right of the individual citizen to protect his life, liberty and privacy, which are sacrosanct. On the other extreme is the sacred duty of the Government to enforce law and order, peace and tranquility in the

PNR,J + Dr.GRR,J 6 WP Nos.32490 & 32525 of 2021 society. Whenever a crime is reported, the law enforcing agency sets in motion criminal justice system on the offences enumerated

in the Indian Penal Code and various special enactments dealing

with specific crimes. In the process of investigation into the crime,

the accused can be arrested, detained and can be interrogated.

11. Section 2(a)⁴ of the Act, 1986 defines what is meant by

"acting in any manner prejudicial to the maintenance of public order". It means a person against whom several crimes are reported and is known as 'a bootlegger', 'a dacoit', 'a goonda' , 'an immoral trafficker' and 'a land grabber' and is engaged or is making preparations for engaging, in any of his activities as such, which affected adversely, or are likely to affect adversely, the maintenance of public order. Explanation appended to this clause explains that "public order" is deemed to have been affected adversely/likely to be affected adversely, if any of the activities of a person referred to in the clause, directly or indirectly, is causing or calculated to cause any harm, danger, or alarm or a feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life or public health. Other clauses of Section 2 of the Act, 1986 defines various terms mentioned in Clause (a), including the term 'land grabber' [clause (j)⁵].

6

PNR,J + Dr.GRR,J 7 WP Nos.32490 & 32525 of 2021 12. Ordinarily, no person can be arrested/detained unless crime is reported. Act 1 of 1986 makes an exception to this salutary

principle. It vests extraordinary power in the Government or in its

delegatee to detain a person even before a crime is committed by

him. Perforce, this power of detention is not to be exercised as a

matter of course. As it seeks to offend the most sacred of the

rights, right to life, liberty and privacy, there are three primary

requirements need to be answered by the law enforcing agency

before invoking the provisions of Section 3 of the Act, 1986.

Firstly, he must be a known offender and several crimes are

reported against him and can be classified as 'a boot-legger', 'a

dacoit', 'a goonda', 'an immoral traffic offender' or 'a land-grabber';

secondly, the person must be acting in a manner prejudicial to the

maintenance of the public order; and thirdly, there must be

subjective satisfaction by the authority that there is possibility of

the person indulging in such activities in future also which is likely

to cause disturbance to 'public order'.

13. Resort to preventively detain a person is made when the

detaining authority assumes that allowing a known offender at large may adversely affect or likely to adversely affect the maintenance of public order. Preventive detention of a person is an extreme measure impinging a citizen's right to life and liberty. Law enforcing agency can resort to such extreme measure only when the conduct of offender affects or is likely to affect maintenance of public order and ordinary law enforcing mechanism is not sufficient to prevent such person from indulging in illegal activities. occupier of such lands, rent, compensation or other charges by criminal intimidation or who evicts or attempts to evict any such occupier by force without resorting to the lawful procedure ; or who abets in any manner die doing of any of the above-mentioned things;

7

PNR,J + Dr.GRR,J 8 WP Nos.32490 & 32525 of 2021 It being an extreme measure, the law enabling such power has to be strictly construed.

14. There is no quarrel with the propositions that even when an

offender is involved in one crime an offender can be detained and that preventive detention is a precautionary measure to prevent committing further crimes affecting the community at large. At the same time, it is a measure that affects right to life and liberty, which is sacrosanct and requires to be preserved at any cost. Therefore, the detaining authority has to apply his mind, weigh all options and can resort to such measure only in extraordinary circumstances where law and ordinary machinery may not cope up and there is an imminent threat to public order.

15. The decision must be a well considered decision impelled by protection of 'public order'. Even then, it is an extreme measure to be resorted in extraordinary circumstances, as a last resort and in larger public interest. It being an exception, cannot subsume the character of routine police action. It should be resorted to only when the normal course of criminal justice system has failed to discipline the individual and actions and conduct of a person has caused or is likely to cause disturbance to 'public order'. ^The power to detain is an exceptional power to be used under exceptional circumstances. (Sudhir Kumar Saha vs. the Commissioner of Police, Calcutta⁶)

16. The Court has to assess that in given facts whether extreme measure of preventive detention is warranted making regular criminal law procedure a nugatory. It is the sacred duty of the writ

PNR,J + Dr.GRR,J 9 WP Nos.32490 & 32525 of 2021 Court to keep eternal vigil to ensure right to life and liberty is not affected by State resorting to illegal means. The Court is reminded

of the fact that resort to preventive detention is on the allegation of

involvement in alleged crime(s) as assessed by the detaining

authority, which is/are yet to be proved. Preventive detention is

largely precautionary and based on suspicion. (State of Madras Vs.

V.G. Row⁷). It is in the realm of speculation. The Court is required

to see whether procedural safeguards are strictly complied before

detaining a person. A mere disturbance tolaw and order leading to

disorder is thus not necessarily sufficient for action under the

Preventive Detention Act but a disturbance which will affect public

order comes within the scope of the Act. (Pushker Mukherjee Vs

State of West Bengal⁸). Thus, what is paramount to note is whether

the offence(s) complained of against detenu is/are of a nature

which can be dealt with under the ordinary law of the land. If the

answer is yes, the detention order is ex facie illegal.

17. It is apt to note the observations of the Hon'ble Supreme

Court in I.R. Coelho Vs State of Tamil Nadu⁹. They read as under:

"49. Granville Austin has been extensively quoted and relied on in Minerva Mills [(1980) 3 SCC 625] . Chandrachud, C.J. observed that to destroy the guarantees given by Part III in order to purportedly achieve the goals of Part IV is plainly to subvert the Constitution by destroying its basic structure. Fundamental rights occupy a unique place in the lives of civilised societies and have been described in judgments as

"transcendental", "inalienable" and "primordial". They constitute the ark of the Constitution (Kesavananda Bharati [(1973) 4 SCC 225] at SCC pp. 991, 999). The learned Chief Justice held that Parts III and IV together constitute the core of commitment to social revolution and they, together, are the conscience of the Constitution. It is to be traced for a deep understanding of the scheme of the Indian Constitution. The goals set out in Part IV have, therefore, to be achieved without the abrogation of the means provided for by Part III. It is in this sense that Parts III and IV together constitute the core of our Constitution and combine to form its conscience. "Anything that destroys the balance between the two parts will ipso facto destroy an essential element of the basic structure of our Constitution." (emphasis supplied) (Minerva Mills [(1980) 3 SCC 625] ,

9

PNR,J + Dr.GRR,J 10 WP Nos.32490 & 32525 of 2021 SCC p. 654, para 57.) Further observes the learned Chief Justice, that the matters have to be decided not by metaphysical subtlety, nor as a

matter of semantics, but by a broad and liberal approach. We must not

miss the wood for the trees. A total deprivation of fundamental rights,

even in a limited area, can amount to abrogation of a fundamental right

just as partial deprivation in every area can. The observations made in

the context of Article 31-C have equal and full force for deciding the

questions in these matters. Again the observations made in para 70 (SCC

p. 659) are very relevant for our purposes. It has been observed that

(Minerva Mills case [(1980) 3 SCC 625] , para 70, p. 659)

"[I]f by a constitutional amendment, the application of

Articles 14 and 19 is withdrawn from a defined field of legislative activity, which is reasonably in public interest, the basic framework of the Constitution may remain unimpaired. But if the protection of those articles is withdrawn in respect of an uncatalogued variety of laws, fundamental freedoms will become a 'parchment in a glass case' to be viewed as a matter of historical curiosity."

These observations are very apt for deciding the extent and scope of judicial review in cases wherein entire Part III, including Articles 14, 19, 20, 21 and 32, stand excluded without any yardstick. ………….

109. Dealing with Articles 14, 19 and 21 in Minerva Mills case [(1980) 3 SCC 625] it was said that these clearly form part of the basic structure of the Constitution and cannot be abrogated. It was observed that three articles of our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. These articles stand on altogether different footing. Can it be said, after the evolution of the basic structure doctrine, that exclusion of these rights at Parliament's will without any standard, cannot be subjected to judicial scrutiny as a result of the bar created by Article 31-B? The obvious answer has to be in the negative. If some of the fundamental rights constitute a basic structure, it would not be open to immunise those legislations from full judicial scrutiny either on the ground that the fundamental rights are not part of the basic structure or on the ground that Part III provisions are not available as a result of immunity granted by Article 31-B. It cannot be held that essence of the principle behind Article 14 is not part of the basic structure. In fact, essence or principle of the right or nature of violation is more important than the equality in the abstract or formal sense. The majority opinion in Kesavananda Bharati case [(1973) 4 SCC 225] clearly is that the principles behind fundamental rights are part of the basic structure of the Constitution. It is necessary to always bear in mind that fundamental rights have been considered to be heart and soul of the Constitution. Rather these rights have been further defined and redefined through various trials having regard to various experiences and some attempts to invade and nullify these rights. The fundamental rights are deeply interconnected. Each supports and strengthens the work of the others. The Constitution is a living document, its interpretation may change as the time and circumstances change to keep pace with it. This is the ratio of the decision in Indira Gandhi case [1975 Supp SCC 1]."

18. In Rekha Vs State of Tamil Nadu¹⁰, the Hon'ble Supreme Court guides the High Courts on how to deal with cases of preventive detention. The Supreme Court held:

"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

PNR,J + Dr.GRR,J 11 WP Nos.32490 & 32525 of 2021 situation. Hence, in our opinion, for this reason also the detention order in question was illegal."

19. In catena of decisions, the Hon'ble Supreme Court and this

Court considered what is meant by 'law and order', 'public order' and 'security of State'. Leading case on the subject is Ram Manohar Lohia vs. State of Bihar¹¹. It was a case of detention under the Defense of India Rules. Hon'ble Supreme Court held as under:

"54. …… Does the expression "public order" take in every kind of disorders or only some of them? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before if can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.

55. It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order". One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. By using the expression "maintenance of law and order" the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules."

20. In Banka Sneha Sheela Vs. The State of Telangana¹², the detenu was detained on 28.09.2020 alleging that he was involved in five crimes committed between October, 2017 to December, 2019 attracting Sections 420, 406 and 506 of IPC. It was alleged that he was luring general public to invest money with an assurance of 100% return within a short period.

11

PNR,J + Dr.GRR,J 12 WP Nos.32490 & 32525 of 2021 20.1. After taking note of law declared by the Hon'ble Supreme Court in Ram Manohar Lohia (supra), the Hon'ble Supreme Court

held,

"15. There can be no doubt that for 'public order' to be disturbed, there

must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects 'law and order' but before it can be said to affect 'public order', it must affect the community or the public at large.

16. There can be no doubt that what is alleged in the five FIRs pertain to the realm of 'law and order' in that various acts of cheating are ascribed to the Detenu which are punishable under the three sections of the Penal Code, 1860 set out in the five FIRs. A close reading of the Detention Order would make it clear that the reason for the said Order is not any apprehension of widespread public harm, danger or alarm but is only because the Detenu was successful in obtaining anticipatory bail/bail from the Courts in each of the five FIRs. If a person is granted anticipatory bail/bail wrongly, there are well-known remedies in the ordinary law to take care of the situation. The State can always appeal against the bail order granted and/or apply for cancellation of bail. The mere successful obtaining of anticipatory bail/bail orders being the real ground for detaining the Detenu, there can be no doubt that the harm, danger or alarm or feeling of security among the general public spoken of in Section 2(a) of the Telangana Prevention of Dangerous Activities Act is make believe and totally absent in the facts of the present case." 20.2. Taking note of the judgment in Madhu Limaye vs. Sub- Divisional Magistrate¹³, the Hon'ble Supreme Court held,

" 20. To tear these observations out of context would be fraught with great danger when it comes to the liberty of a citizen under Article 21 of the Constitution of India. The reason for not adopting a narrow meaning of 'public order' in that case was because of the expression "in the interests of"

which occurs to Article 19(2) to 19(4) and which is pressed into service only when a law is challenged as being unconstitutional for being violative of Article 19 of the Constitution. When a person is preventively detained, it is Article 21 and 22 that are attracted and not Article 19. Further, preventive detention must fall within the four corners of Article 21 read with Article 22 and the statute in question. To therefore argue that a liberal meaning must be given to the expression 'public order' in the context of a preventive detention statute is wholly inapposite and incorrect. On the contrary, considering that preventive detention is a necessary evil only to prevent public disorder, the Court must ensure that the facts brought before it directly and inevitably lead to a harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large." (emphasis supplied)

20.3. On reviewing the precedent decisions, the Hon'ble Supreme Court further held,

"34. ……. a possible apprehension of breach of law and order can be said to be made out if it is apprehended that the detenu, if set free, will continue to cheat gullible persons. This may be a good ground to appeal against the bail orders granted and/or to cancel bail, but certainly cannot provide springboard to move under a preventive detention statue. ……"

PNR,J + Dr.GRR,J 13 WP Nos.32490 & 32525 of 2021 21. In Vijay Narin Singh vs State of Bihar 14 , the Hon'ble Supreme Court held,

"32. …It is well settled that the law of preventive detention is a hard law

and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardized unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorizing such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinizing the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court." (emphasis supplied) 22. The facts on record disclose that out of 13 crimes reported against Mahmood Bin Alvi, he was acquitted in 10 cases, 2 cases

were compromised and one case is pending trial. In case of Ayub

Bin Alvi, he was acquitted in all the six crimes. Further in case of Mahmood Bin Alvi, the crimes referred to were alleged to have been committed between 2002-2018 and in case of Ayub Bin Alvi the

alleged crimes were reported between 2005-2017. All the previous

crimes against the detenues were closed except one crime against

Mahmood Bin Alvi. Per force, the crimes referred to in the orders of detention were not proximate to the decision to detain the

detenues, therefore, leaving the previous crime history aside, only two crimes were registered against the detenues on 17^th and 18^th

August, 2021, considered for their preventive detention.

23. On going through the record of these two cases, it is seen

that on the ground of involvement in two crimes, the detention orders were made. First crime is on murder of a rival. It appears crime was the result of an inter se dispute between the victim and the detenues. Though, it is a heinous crime but by this solitary

14 (1984) 3 SCC 14

13

PNR,J + Dr.GRR,J 14 WP Nos.32490 & 32525 of 2021 instance, it cannot be assumed that this would create fear, panic, insecurity in the public and disturb peace leading to disturbance of

public order. The other crime is theft of a two wheeler motor

vehicle. These are normal law and order crimes, which require

investigation, filing of final report and to prosecute them before the

jurisdictional criminal Court. The law enforcing machinery can

deal with these crimes under the Code of Criminal Procedure.

Ordinary law of the land is sufficient to deal with the situation.

(Rekha) (supra).

24. It cannot be said that the crimes registered against the

detenues require preventive detention. Further, crimes in the past are not proximate to the decision to detain the detenues and except one crime against Mahmood Bin Alvi, which is pending trial, all other crimes ended in acquittal. Further, if the prosecution opines that setting the detenues free is not desirable in public interest, nothing prevented them to file petitions to cancel the bail. Further, if the prosecution was of the firm opinion that detenues should not be set free they should have filed charge-sheet within the time available to them. They cannot cover up their lapses in conducting investigation and resort to draconian law merely because they have power to detain. It clearly amounts to abuse and misuse of power.

25. Preventive detention is extra-ordinary measure impelled by desire to ensure public order. It is an exception to ordinary law enforcement against an offender. Resort to this extraordinary measure can be against offenders who are creating panic, fear and apprehension of insecurity to people at large and when there is

14

PNR,J + Dr.GRR,J 15 WP Nos.32490 & 32525 of 2021 serious threat to public order due to egregious conduct and the law enforcement machinery is unable to control the detenue from

indulging in repeated crimes. It is not to be resorted when the

offenders can be handled in the regular course of policing. Guided

by long line of precedent decisions, the conclusion is irresistible

that the orders of detention are not sustainable. They are

accordingly set aside.

26. For the aforesaid reasons, the orders of detention vide

SB(I) No.266/PD-6/HYD/2021 dated 24.09.2021 and SB(I) No.267/PD-6/HYD/2021 dated 24.09.2021 and the consequential confirmation orders of the first respondent approving detention vide G.O.Rt No. 2593 General Administration (SPL. (Law & Order) Department dated 25.11.2021 and G.O.Rt No. 2550 General Administration (SPL. (Law & Order) Department dated 18.11.2021 respectively are not sustainable and the same are accordingly set aside.

27. Writ Petitions are allowed and the respondents are directed to set the detenues, namely, 1) Mahmood Bin Alvi @ Mahamood Jabri @ Bhinswala Mahmood S/o Alvi Bin Ismail, and 2) Ayub Bin Alvi S/o Alvi Bin Ismail, respectively, detained in Central Prison, Chanchalguda, Hyderabad at liberty forthwith, if they are no longer required in any other criminal case. Pending miscellaneous petitions if any shall stand closed.

___________________________

JUSTICE P.NAVEEN RAO

_____________________________ Dr.JUSTICE G.RADHA RANI

Date:17.02.2022

15

PNR,J + Dr.GRR,J 16 WP Nos.32490 & 32525 of 2021 Tvk/kkm Note : Issue copy today.

HONOURABLE SRI JUSTICE P. NAVEEN RAO

&

HONOURABLE Dr. JUSTICE G. RADHA RANI

WRIT PETITION NOS. 32490 AND 32525 OF 2021

Date:17.02.2022

Tvk/kkm

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