Preventive Detention – Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders,Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser 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 – s.3(2) and 2(x) – Order of detention u/s.3(2) – It was alleged that detenu was a ‘white-collar offender’ u/s.2(x) who cheated gullible job aspirants which was prejudicial to “maintenance of public order “– Detenu had moved bail applications in two cases in which he was in judicial custody and the Magistrate had granted him conditional bail, however, as recorded in the detention order, it was apprehended that he may violate the bail conditions while committing similar offences – Detention order challenged – Held: Order of detention, on facts, was evidently based on stale material and demonstrated non-application of mind on part of the detaining authority to the fact that the conditions imposed on the detenu, while granting bail, were duly fulfilled and there was no incidence of further violation – High Court failed to probe the existence of a live and proximate link between the past cases and the need to detain the detenu – Mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the “maintenance of public order” – Apprehension of a disturbance to public order owing to a crime reported over seven months prior to the detention order had no basis in fact – Nature of allegations against the detenu are grave – However, personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding – Clear example of non-application of mind to material circumstances having a bearing on the subjective satisfaction of the detaining authority – Detention order accordingly quashed and set aside – Public Order – Constitution of India, 1950 – Art.22. Preventive Detention – Detention orders under Telangana Act of 1986 – Callous exercise of exceptional powers by detaining authorities and respondent-State – Incorrect application of standard for maintenance of public order and reliance on stale materials while passing orders of detention – Respondents directed to take stock of challenges to detention orders pending before the Advisory Board, High Court and Supreme Court and evaluate fairness of the detention orders against lawful standards – Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser 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.
Law and Order – Distinction between disturbance to law and order and disturbance to public order – Held: Every disorder does not meet the threshold of a disturbance to public order, unless it affects the community at large – Public Order.
Constitution of India, 1950 – Art.226 – Writ jurisdiction under – Scope – Held: While the ordinary procedural hierarchy among courts must be respected, the High Court’s writ jurisdiction u/Art.
226 extends to protecting the personal liberty of persons who demonstrated that the instrumentality of the State was being weaponised for using the force of criminal law.
Constitution of India, 1950 – Art.22 – Object and purpose of – Held: Art.22 of the Constitution was specifically inserted and extensively debated in the Constituent Assembly to ensure that the exceptional powers of preventive detention do not devolve into a draconian and arbitrary exercise of state authority – Preventive Detention.
ORS.
An order of detention was passed against the detenu under Section 3(2) of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser 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.
It was alleged that the detenu was a ‘white-collar offender’ under Section 2(x) of the Telangana Act of 1986 whose offence of cheating gullible job aspirants was causing “large scale fear and panic among the gullible unemployed job aspirants/youth and thus he has been acting in a manner prejudicial to the maintenance of public order apart from disturbing the peace, tranquillity and social harmony in the society”. It was further recorded in the order of detention that the detenu had moved bail applications in two cases in which he was in judicial custody and that the Magistrate had granted him conditional bail, however, it was apprehended that he may violate the bail conditions while committing similar offences. The order of detention was passed nearly seven months after the registration of the first FIR and about five months after the registration of the second FIR. The order of detention was challenged before the High Court in a petition under Article 226 of the Constitution. The High Court dismissed the petition. Hence the present appeal.
Allowing the appeal, the Court
HELD:1. The order of detention dated 19th May, 2021 was passed nearly seven months after the registration of the first FIR and about five months after the registration of the second FIR. The order of detention is evidently based on stale material and demonstrates non-application of mind on the part of the detaining authority to the fact that the conditions which were imposed on the detenu, while granting bail, were duly fulfilled and there was no incidence of a further violation. In the counter affidavit filed before the High Court, the detaining authority expressed only an apprehension that the acts on the basis of which the FIRs were registered were likely to be repeated in the future, thereby giving rise to an apprehension of a breach of public order. The High Court failed to probe the existence of a live and proximate link between the past cases and the need to detain the detenu after seven months of registration of the first FIR and nearly five months of securing bail. [Para 11][15-B-E]
2.1. There is a distinction between a disturbance to law and order and a disturbance to public order. Every disorder does not meet the threshold of a disturbance to public order, unless it affects the community at large. [Para 12][15-E-F]
2.2. A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the “maintenance of public order”. In this case, the apprehension of a disturbance to public order owing to a crime that was reported over seven months prior to the detention order has no basis in fact. The apprehension of an adverse impact to public order is a mere surmise of the detaining authority, especially when there have been no reports of unrest since the detenu was released on bail on 8 January 2021 and detained with effect from 26 June 2021. The nature of the allegations against the detenu are grave. However, the personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding. The powers of preventive detention are exceptional and even draconian. Tracing their origin to the colonial era, they have been continued with strict constitutional safeguards against abuse. Article 22 of the Constitution was specifically inserted and extensively debated in the Constituent Assembly to ensure that the exceptional powers of preventive detention do not devolve into a draconian and arbitrary exercise of state authority. The case at hand is a clear example of non-application of mind to material circumstances having a bearing on the subjective satisfaction of the detaining authority. The two FIRs which were registered against the detenu are capable of being dealt by the ordinary course of criminal law. [Para 15][19-D-G]
3. The liberty of the citizen cannot be left to the lethargy of and the delays on the part of the State. In the High Court, the respondents have argued that the detenu must move the Advisory Board and the writ petition has been filed in a premature fashion. However, while the ordinary procedural hierarchy among courts ORS.
must be respected, the High Court’s writ jurisdiction under Article 226 extends to protecting the personal liberty of persons who have demonstrated that the instrumentality of the State is being weaponised for using the force of criminal law. [Para 16] [20-B-C]
4. In the last five years, this Court has quashed over five detention orders under the Telangana Act of 1986 for inter alia incorrectly applying the standard for maintenance of public order and relying on stale materials while passing the orders of detention. At least ten detention orders under the Telangana Act of 1986 have been set aside by the High Court of Telangana in the last one year itself. These numbers evince a callous exercise of the exceptional power of preventive detention by the detaining authorities and the respondent-state. The respondents are directed to take stock of challenges to detention orders pending before the Advisory Board, High Court and Supreme Court and evaluate the fairness of the detention order against lawful standards. The order of detention passed against the detenu shall accordingly stand quashed and set aside. [Paras 17, 18][21-A-D]
Ram Manohar Lohia v. State of Bihar AIR 1966 SC
740 : [1966] 1 SCR 709 – followed.
Banka Sneha Sheela v. State of Telangana, (2021) 9 SCC 415; Sama Aruna v. State of Telangana (2018) 12 SCC 150 : [2017] 4 SCR 52; Arnab Manoranjan
Goswami v. State of Maharashtra (2021) 2 SCC 427; V Shantha v. State of Telangana (2017) 14 SCC 577 and Khaja Bilal Ahmed v. State of Telangana (2020) 13 SCC
632 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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