Kurva Sunitha v. The State of Telangana
Court: High Court for State of Telangana
Bench: RAGHVENDRA SINGH CHAUHAN,B.VIJAYSEN REDDY
Judgment date:
Case summary
High Court for State of Telangana judgment dated 2020-12-22. Kurva Sunitha v. The State of Telangana. Read the judgment and case details on LawSphereX.
Judgment text
HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY SECOND DAY OF DECEIVBER TWO THOUSAND AND TWENTY PRESENT THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN AND THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY wRtT PETITION NO. 18473 0F 2020 Between: Kurva Sunitha, W/o. Narsimhulu, Aged about 30 years' Rl/o H. No. 2-1-20, SC-Colony, Kaloor Thimmanadoddi (KT DODDI) Village, Gattu [t4andal, Jogulamba Gadwala District'TS -50s129 ... pETrroNER AND 1. The State of Telangana, Rep. by its Principal secretary, General Administration (Law & Order) Department, Secretariat, Hyderab_ad 2. ihe Collector'& Dlstrict l\,4agistrate Wanaparthy District, Wanaparthy 3. The Superintendent of Poli-e, Wanaparthy District, Wanaparthy. ----^.. -- ...
RESPONDENTS Petition under Article 226 of lhe constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate writ or order or direction more particularly one in the nature of WRIT OF HABEAS CORPUS declaring the action of 2nd Respondent in Detention Proceedings No. C/610/2020, dated 19. 09. 2020 as illegal, arbitrary and violative of Articles 14, 19,21 and 22 of the constitution of lndia and consequently set aside the same and direct the Respondents to release the Petitioner's husband i. e. (detenu) Pilli Srinivasulu, S/o. Govindu, Age: 33 years, Occ: Business' Kurva Srinivasulu @ R/o. K. T. Doddi Village & Ir/andal of Jogulamba Gadwal District from the detention.
lA NO: 1 OF 2020 praying in Petition under Section 151 CPC that in the circumstances sta ted petition, direct the affidavit filed in support of the the High court may be pleased to Srinivasulu the Respondents to release the Petitioner's husband i. e. (detenu) Kurva years, Business, R/o. K. T. Pilli Srinivasulu, Sio. Govindu, Age: 33 Occ: Doddi @ Village and lvandal of Jogulamba Gadwal District from the detention pending disposal of the above writ petition. Counsel for the Petitioner: SRI AJGAL RAVI BABU FOR HOME Counsel for the Respondents: SRI T. SRIKANTH REDDY, GP The Court made the following: ORDER r ORDER: (Per Hon'ble Sri Justice B. Vijaysen Reddy) The detention order passed against the detenu namely Kurva Srlnivasulu @ Pilli Srinivasulu, S/o. Govindu, dated 19. 09. 2020, by the Collector and District Magistrate, Wanaparthy District, the respondent No.
2, in exercise of powers conferred under Section 3 (1) and (2) of the Prevention of Black-Marketing and t\4aintenance of Supplies of Essential Commodities Act, 1980 (Act. No. 7 of 1980) (for short 'the Act') and the confirmation order of the respondent No. 1 26. 17. 2O2O are challenged in this Writ of Habeas Corpus as being ilegal and a rb itra ry. 2. The detention order is passed on two ground cases viz. 1) Cr. No. 26 of 2020, under Section 42O lpc and Section Z of the Essential Commodities Act of Kothakota pS. , and 2) Cr,No. 48 of 2020 under Section 420 IpC; Section 7 of the Essential Commodities Act and Section 17(c) of T. S. pDS (Controt) Order, 2016 of Atmaku r PS. 3. Heard [Vr. Ajgal Ravi Babu, learned counsel for the petitioner and Mr. T. Srikanth Reddy, the learned Government Pleader for Home for the respondents. 4. The learned counsel for the petitioner submitted that in Cr. No,26 of 2020, the detenu was arrested on 15. 02.
2020, his confessional statement was recorded and later, he was released after serving notice under Section 41-A Cr. P. C. In Cr. No. 48 of 2020, the detenu was arrested on 01. 07. 2020 and he was granted bail by the JFCM, Atmakur, vide Crl. MP. No,281 of 2020 on 03. O7. 2O2O. Learned counsel furlher submitted that the detenu is falsely irnp icated in the above two crimes and in any case the offences relating to Essential Commodities Act r/w. Section 420 IPC do not come under the purview of public order. There is no sufficient material to treat the detenu as Black 14arketer. The opinion formed by the detaining authority that there is imminent possibility of the detenu committing similar offences, which would be detrimental to the maintenance of supplies of commodities essential to the community through public distribution system, is wholly untenable and vindictive only to curtail the life and liberty of the detenu.
The detention order is violative of Article 21 of the Constitution of India. 5. On the other hand, the learned Government Pleader for Home submitted that the detenu engaged himself in clandestine business of purchasing PDS commodlties pertaining to public distribution system hoarding, diverting and selling the same without having any valid llcense under the Control Order and the EC Act and causing interruption to the process of supply of essential commodities to the beneficiaries, The detenu is a "black marketeer" under Section 3(1) and (2) of the Prevention of Black Marketing and lvlaintenance of Supply of Essential Commodities Act, 1980.
The detainlng authority having considered the entire material placed before it, including the bailpetitlonsandorderspassedthereinandhavingsatisfiedthatthe detenu is obstructing in the process of supply of essential commodities to the poor and needy people which is in contravention of CIause 17(e) of TSPDS (Control) Order 2016 and Section 7 of the Act, r/w Section 420IPCpassedthedetentionorderdulyfollowingthewellestablished procedure under the law and in strict compliance of provisions of the Act, 6, Preventive detention ls an extreme step, which can be resorted to by an executive authorlty as a last resort Before passing of detention order the authority has to keep in mind that liberty of an individual, which is a precious and cherished fundamental right guaranteed under Article 21 of the Constitution of lndla' is being deprived.
In the process of deprivlng an individual of such valuable right to life and personal liberty, the authority has to satisfy itself that the activitles of the detenu are of such nature which cannot be curbed except for passing the detention order. Personal liberty of an individual which is a precious and basic human right cannot be allowed to be trampled with at the whims and fancies of the executive authorities' The detention order needs to be passed for genuine and bona fide reasons and not on extraneous grounds. It should subserve the purpose and object of the Act under which the authority has drawn its power. The detention order may be passed under Section 3 of the Act if the Government is satisfied that a person is to be detained with a view to prevent him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community.
The main object for passing the detention order being "maintenance of supplies of commodities essential to the community" it has to be ensured that such object is achieved. In KISHORI MOHAN BERA v. STATE OF WEST BENGAL1 the Hon'ble Supreme Court held at page 847, para 4 as under: "The Act confers extraordinary power on the executive to detain a person without recourse to the ordinary laws of the land and to trial by Courts, Obviously, such a power places the personal liberty of such a person in extreme peril against which he is provided with a limited right of challenge only. There can, therefore, be no doubt that such a law has to be strictly construed. Equally also, the power conferred by such a law has to be exercised with extreme care and scrupulously within the bounds laid down in such a law. " IN YUMMAN ONGBI LEMBI LEIMA V. STATE OF MANIPUR AND OTHERS', the Supreme Court held al pata 27 as under: (rgzz): scc sas ' (ZOtz) z Supreme Court Cases ' "27.
As has been observed in various cases of similar nature by this Court, the personal liberty of an individual is the most precious and prized right guaranteed under the Constitution in Part III thereof. The State has been granted the power to curb such rights under criminal laws as also under the laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order'" Further, in STATE OF MAHARASHTRA v' BHAURAO PUNJABRAO GAWANDE3 it is held at para 23 as under: "23......
personal liberty is a precious right, So did the Founding Fathers believe because, while their first object was to give unto the people a Constitution whereby a Government was established, their second object, equally important, was to protect the peapte against the Gavernment That is why, while conferring extensive powers on the Government like the power to declare an emergency, the power to suspend the enforcement of fundamental rights or the power to issue ordinances, they assured to the people a Bill of Rights by Part lll of the Constitution, protecting against executive and legislative despotism those human rights which they regarded as fu nda renta l'. " 7. It is settled law that preventive detention cannot be resorted to as a substantive and as an easy way out law' The High Court of Judicature for the State of Telangana and the State of Andhra Pradesh in C. NEELA V. STATE OF TELANGANA4 hCId AS UNdCT: "..
,The State cannot find an easy way out by choosing to invoke the draconian provisions of preventive detention laws against every criminal as a substitute for his prosecution As discussed supra, the Supreme Court has drawn a clear distinction between disturbance to public oTder on one side and disturbance to law and order on the other and held that only in ' (l00ll) I s(lC (r ll 'lotr (:tat. tt tcrt. r roo the former case the State is permitted to invoke the powers under the preventive detention laws'" 8. When ordinary law is capable of deallng with alleged prejudicial activities of the detenu the provisions of the preventive detentlon law cannot be invoked. The executive authority has to keep in mind before passed that ordinary law will not act as deterrent on detention order is theactivitiesofthedetenu. Intheinstantcase,theoffencesrelateto provisions of the Essential Commodities and Control Orders made thereunder.
Unless it is held that the activities of the detenu have impact on the public order or are of such nature, which have the potential of adversely affecting the public order/ detention order cannot be passed in a routine manner. There is no discussion in the impugned detention order as to how the activities of the detenu would affect the public order and also as to the compelling reasons for invokingtheprovisionsoftheActwhenordinarylaWiSsufficient.
The Supreme Court in MUNGALA YADAMMA v' STATE OF ANDHRA PRADESHS, held as u nder: "No doubt, the offences alleged to have been committed by the appellant are such as to attract punishment under the Andhra Pradesh Prohibition Act, but that in our view has to be done under the said laws and taking recourse to preventive detention laws would not be warranted, Preventive detention involves detaining of a person without trial in order to prevent him/her from committing certain types of offences, But such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes which the detenue may have committed' After all, preventive detention in most cases is for a year only and cannot be used as an instrument to keep a person in perpetual custody without trial. " 9.
Apart from that, there is also no proper conclusion arrived at by the detaining authority as to how public order is affected There is a t (zotz) z scc t8o difference betlveen law and order and public order. It is held by the Supreme Court in ARUN GHOSH v. STATE OF WEST BENGAL6 as under: "lt means therefore that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. The French distinguish law and order and public order by designating the latter as order publique, The latter expression has been recognized as meaning something more than ordinary maintonance of law and order. In S. K. KEDAR v.
STATE OF WEST BENGALT, the Supreme Cou rt held as under: The relevant criteria to distinguish in the abstract between acts prejudicial to rnaintenance of law and order and those which are prejudicial to maintenance of public order are laid down in a number of rulings of this Court (see Pushkar Mukherjee and others v. The State of West Bengal l(1969) l SCC 1,O1, Sudhir Kumar Saha v. commisssioner Of Police, Calcutta [(1970) 1 SCC 149] and Nagendra Nath Mondal v. The state of West Bengal l(7972) 1 SCC 4981. The question whether a person has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is one of degree and the extent of the reach of the act upon the society. An act by itself is not Ceterminative of its own qravity. In its quality it may not differ from another but in its potentiality it may be very different.
Similar acts in different contexts affect differently law and order on the one hand and public order on the other, It is always a question of degree of the harm and its effect upon the community. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of the law and order. " 19r0( r ) scc 93 '{ 191) I S(. C 3 L6 10, In the light of the above observations, the detention order dated lg. Og. 2O2O is liable to be set aside and this writ petition is liable to be a llowed. 11. The writ petition is allowed The impugned detention order dated 19. 09. 2020 of the 2no respondent and the confirmatlon order dated26'11'2020ofthel. trespondentareherebysetaside. The respondents are directed to set the detenu' namely Kurva Srinivasulu, @ Pilli.
Srinivasulu, S/o' Govindu, at liberty forthwith' the criminal cases, which have been in case he is no longer detained in registered so far against him. if any, As a sequel, the miscellaneous petitions, pending shall stand closed. There shall be no order as to costs' SD/. K. VENKAIAH I ASSISTANT REGISTRAR //TRUE COPY' sEcrlbt'oFFlcER To, (Law & Order) Depadment 1. The Principal Secre^tary . Ggltfl ,lglinistration HyderaDao State of Teiangana, Secretariat' District. wanaparthy rvil;i. i;;i;'W;;rparthy 2. The cotrector & District parlhv rtiy. Wana ? rhe Suoerinte ndent or roiEel'Wlnaoa ! 1s11pi' ro r Ho m e H is h c o u rt ro r i [iJ: 3 trqi t"3"iil[5'\i'd' t . ? ;: 33 Ji"'5,. ii: &: "uo "' tfre State of Telangana at Hyderabad (uu I ) 6. Two CD CoPies, MP }r'k HIGH COURT DATED:2211212020 gE sra 1 16: ( + o o 0I JAt't? CI21 ):. * * r) S. ': l.. r,:ri i)'. * ORDER WP. No. 18473 of 2020 ALLOWING THE WRIT PETITION WITHOUT COSTS { ,il{>
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