V. Shantha vs The State Of Telangana

CRIMINAL APPEAL NO.965 OF 2017 (Arising out of SLP(Crl.) No.3651 of 2017)

V. SHANTHA ....APPELLANT(S)

VERSUS

STATE OF TELANGANA AND ORS. ...RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

Leave granted.

2. The appellant assails the order of preventive

detention of her husband dated 17.10.2016, passed by

Respondent No.2, under the Telangana Prevention of

Dangerous Activities of Bootleggers, Dacoits, Drug

Offenders, Goondas, Immoral Traffic Offenders and

Land Grabbers Act, 1986 (Act No.1 of 1986) (Telangana

Signature Not Verified Adaptation) Order, 2015, (G.O.Ms.No.124, Digitally signed by SANJAY KUMAR Date: 2017.05.24 17:11:05 IST Reason: Dated17.03.2015) (hereinafter referred to as the 'Act').

1

3. Ms. Prerna Singh, learned counsel for the

appellant, submits that an order of preventive

detention is a serious matter affecting the liberty of the

citizen. It cannot be resorted to when sufficient

remedies are available under the general laws of the

land for any omission or commission under such laws.

The detenu was already being prosecuted under the

penal code and the Seeds Act. Reliance was placed on

Rekha vs. State of Tamil Nadu & Anr., (2011) 5

SCC 244.

4. It was next submitted that the detenu was

already in custody in two other cases. The order of

detention does not consider the same, setting out

special reasons for an order of preventive detention,

with regard to a person already in custody. The

reasoning that there was every likelihood of his being

released on bail, in view of an earlier bail order in a

similar case, is flawed, as the detenu has not even filed

any application for bail in these two cases.

5. Ms. Bina Madhavan, learned counsel for the

2 respondents, opposing the application, submits that

the grounds of detention cannot be seen simpliciter as

individual wrongs amenable to ordinary laws. It has

the potential to disturb maintenance of public order.

More than one farmer had lodged complaints with

regard to the spurious seeds sold to them. Wrongful

loss had been caused to the poor farmers, and the

detenu had acquired illegal gains at their expense.

6. We have considered the submissions. The order of

preventive detention has been made under section 3

(1) and (2) read with section 2 (a) and (b) of the Act.

7. Section 3 of the Act empowers the Government if

satisfied, inter alia, with respect to a “Goonda” to

detain such person with the view to preventing him

from acting in any manner prejudicial to the

maintenance of public order.

8. Section 2(a) of the Act defines “acting in any

manner prejudicial to the maintenance of public order”

3 as follows:

“2(a) “acting in any manner prejudicial to the maintenance of public order” means when a bootlegger, a dacoit, a drug-offender, a goonda, an immoral traffic offender or a land-grabber is engaged or is making preparations for engaging, in any of his activities as such, which affect adversely, or are likely to affect adversely, the maintenance of public order:

Explanation: - For the purpose of this clause 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 of the persons referred to in this 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 widespread danger to life or public health”.

9. Section 2(g) defines “Goonda” as follows :

“2(g) “goonda” means a person, who either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code.

10. Section 13 of the Act provides for a maximum

period of detention for twelve months. If the order of

preventive detention is sustainable, the detenu will

continue in custody, without the opportunity to move

for bail, till 17.10.2017.

4

11. An order of preventive detention, though based on

the subjective satisfaction of the detaining authority, is

nonetheless a serious matter, affecting the life and

liberty of the citizen under Articles 14, 19, 21 and 22

of the Constitution. The power being statutory in

nature, its exercise has to be within the limitations of

the statute, and must be exercised for the purpose the

power is conferred. If the power is misused, or abused

for collateral purposes, and is based on grounds

beyond the statute, takes into consideration

extraneous or irrelevant materials, it will stand vitiated

as being in colourable exercise of power.

12. The detenu was the owner of Laxmi Bhargavi

Seeds, District distributor of Jeeva Aggri Genetic

Seeds. Three FIRs were lodged against the detenu and

others under Sections 420, 120-B, 34, IPC and

Sections 19, 21 of the Seeds Act, 1966. It was alleged

that the chilli seeds sold were spurious, as they did not

yield sufficient crops, thus causing wrongful loss to the

farmers, and illegal gains to the accused. Whether the 5 seeds were genuine or not, the extent of the yield, are

matters to be investigated in the FIRs. Section 19 of

the Seeds Act provides for penalty by conviction and

sentence also. Likewise, Section 20 provides for

forfeiture. Sufficient remedies for the offence alleged

were, therefore, available and had been invoked also

under the ordinary laws of the land for the offence

alleged.

13. The order of preventive detention passed against

the detenu states that his illegal activities were

causing danger to poor and small farmers and their

safety and financial well-being. Recourse to normal

legal procedure would be time consuming, and would

not be an effective deterrent to prevent the detenu

from indulging in further prejudicial activities in the

business of spurious seeds, affecting maintenance of

public order, and that there was no other option

except to invoke the provisions of the preventive

detention Act as an extreme measure to insulate the

society from his evil deeds. The rhetorical incantation

of the words “goonda” or “prejudicial to maintenance of 6 public order” cannot be sufficient justification to

invoke the draconian powers of preventive detention.

To classify the detenu as a “goonda” affecting public

order, because of inadequate yield from the chilli seed

sold by him and prevent him from moving for bail even

is a gross abuse of the statutory power of preventive

detention. The grounds of detention are ex-facie

extraneous to the Act.

14. The facts in Munagala Yadamma vs. State of

A.P., (2012) 2 SCC 386 under the same Act, were

markedly similar as follows:

“2. In the detention order, the detaining au- thority indicated that the detenu was a bootleg- ger within the meaning of Section 2(b) of the aforesaid Act and that recourse to normal legal procedure would involve more time and would not be an effective deterrent in preventing the detenu from indulging in further prejudicial activities. It has been mentioned that the de- tenu was involved in several cases of violation of the provisions of Section 7-A read with Sec- tion 8(c) of the Andhra Pradesh Prohibition Act, 1995, involving illicit distillation of liquor.”

15. After noticing Rekha case (supra) also, it was observed

and concluded as follows:

7

“7. Having considered the submissions made on behalf of the respective parties, we are unable to accept the submissions made on behalf of the State in view of the fact that the decision in Rekha case, in our view, clearly covers the facts of this case as well. The offences complained of against the appellant are of a nature which can be dealt with under the ordinary law of the land...” xxxxxxxx

9. No doubt, the offences alleged to have been committed by the appellant are such as to attract punishment under the Andhra Pradesh Prohibi-

tion Act, but that in our view has to be done un- der the said laws and taking recourse to prevent- ive detention laws would not be warranted. Pre- ventive 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 or- dinary law and absolve the investigating authorit- ies of their normal functions of investigating crimes which the detenu 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...”

16. In view of the aforesaid discussion, it is not

necessary to consider the second submission on behalf

of the petitioner with regard to the lack of justification

for an order of preventive detention with regard to a

detenu already in custody.

8

17. The appeal is allowed, and the order of preventive

detention dated 17.10.2016 is held to be

unsustainable and is set aside. The detenu is ordered

to be set at liberty forthwith unless wanted in any

other case. This order shall be without prejudice to the

prosecution of the detenu under the ordinary laws of

the land.

…………...................J. [L. NAGESWARA RAO]

…………...................J. [NAVIN SINHA] NEW DELHI;

MAY 24, 2017.

9

ITEM NO.1 COURT NO.5 SECTION II (For Judgment) S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Crl.) No(s).3651/2017

(Arising out of impugned final judgment and order dated 10.04.2017 in W.P. No.3671/2017 passed by the High Court Of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh)

V. Shantha ...Petitioner(s) VERSUS

State of Telangana & Ors. .....Respondent(s)

(With office report)

Date : 24/05/2017 This matter was called on for pronouncement of judgment today.

(VACATION BENCH)

For Petitioner(s) Ms. Prerna Singh, Adv.

Mr. Guntur Pramod Kumar, Adv.

Mr. Guntur Prabhakar, Adv.

For Respondent(s) Ms. Bina Madhavan, Adv.

Mr. Mrityunjai Singh, Adv.

Mr. S. Udaya Kumar Sagar, Adv.

Hon'ble Mr. Justice Navin Sinha pronounced the reportable

Judgment of the Bench comprising of Hon'ble Mr. Justice L.

Nageswara Rao and His Lordship.

Leave granted.

The appeal is allowed in terms of the signed reportable

judgment. The detenu is ordered to be set at liberty forthwith

unless wanted in any other case.

(Sanjay Kumar-II) (Madhu Narula) Court Master Court Master

(Signed Reportable Judgment is placed on the file)

10 11