REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 733 OF 2021
[ARISING OUT OF SLP (CRIMINAL) NO.4729 OF 2021]
BANKA SNEHA SHEELA ..APPELLANT
VERSUS
THE STATE OF TELANGANA & ORS. ..RESPONDENTS
J U D G M E N T
R.F. Nariman, J
1. Leave granted.
2. The present appeal arises out of a judgment dated 31.03.2021,
passed by the High Court for the State of Telangana at Hyderabad, by
which a Writ Petition filed by the Petitioner challenging a Preventive
Detention Order [hereinafter referred to as “Detention Order”] passed
against the Petitioner’s husband [hereinafter referred to as “the
Detenu”] under Section 3(2) of the Telangana Prevention of
Dangerous Activities of Boot-leggers, 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
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Offenders, Explosive Substances Offenders, Arms Offenders, Cyber
Crime Offenders and White Collar or Financial Offenders Act, 1986
[hereinafter referred to as “Telangana Prevention of Dangerous
Activities Act”] , was dismissed.
3. The Detention Order under the provisions of the Telangana Prevention
of Dangerous Activities Act is dated 28.09.2020. It refers to five FIRs
that have been filed against the Detenu, all the said FIRs being under
Sections 420, 406 and 506 of the IPC. The facts contained in the FIRs
range from October, 2017 to December, 2019 and are similar. We may
set out the facts contained in FIR No.705 of 2019 as a sample of
similar FIRs filed against the Detenu as follows [This narration of the
FIR is to be found in the Detention Order itself]:
“On 12.12.2019 at 1200 hours a complaint was received
from Sri Kommu Naveen Kumar S/o Veeraswamy, aged
about 24 years, Occ: Car Mechanic, R/o H.No. 2-32,
Yadaran Village, Shamirpet Mandal stating that he has been
running a Garage near main road at Muraharipally village for
the past one year. One Banka Ravikanth, aged about 35
years used to come to his garage for two to three times in a
month for his car servicing. In the month of March, 2019 the
said Ravikanth introduced himself as a High Court advocate
and he would invest money in newly upcoming companies
and insisted the complainant to invest money for 100%
return. He also informed that they are three advocates, of
them one is CA (Chartered Accountant) and another is CS
(Company Secretary) by name Chandramouli, aged about
65 years. On believing his words, he transferred Rs.50,000/-
through Phone-pay to his Indian Bank, Shamirpet branch
vide A/c No. 6714073306. Again on 28.05.2019 he
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transferred Rs. 1,00,000/- through Phone-pay as second
investment and on 20.06.2019 he deposited Rs. 1,00,000/-
from his Indian Bank, Gachibowli Branch account to his
account besides giving net cash of Rs. 2,00,000/- by hand.
While sending Rs. 1 lakh through phone pay in presence of
one Prasad, Banka Ravikanth assured the complainant that
in the 2nd
investment he would give him Rs. 41,000/- per month
throughout the year and he will take Rs. 3,000/- towards his
commission. On 12.12.2019 when the complainant asked
him to return his money, he threatened with dire
consequences. The complainant stated that the said
Ravikanth has cheated him by saying that he would get
more return. On the strength of the complainant, police
registered a case and investigation into.”
Following upon the narration of the 5 FIRs comes this important
paragraph:
“Due to above incidents, the complainants, victims and other
young aspirants, who want to invest money in stock/share
market and derive benefits became scared and feeling
insecure. These incidents have also caused loss of faith and
trust among investors in stock trading fearing similar
cheating towards them by the people like you. They are
hesitated to consult any consultancies or persons fearing
similar cheating by the unknown persons in the guise of
providing good profits. These prejudicial activities have also
caused disturbance in the public.”
4. The Detention Order then refers to the ‘Modus Operandi’ of the
Detenu as follows:
“You are a native of Karimnagar district. You completed
graduation (B.Com) in 2011 and LLB in 2019 and have been
doing trading in stock market. You have introduced
yourselves to the victims as a High Court Advocate and you
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have a team consisting of one CA (Chartered Accountant)
and CS (Company Secretary) and three advocates. Your CS
has an expertise and links in Central and State
governments. You have knowledgeable persons in share
marketing and used to invest money in upcoming
companies which ensure return of 100%. You would lure the
innocent public in the guise of providing good profit by
investing their money in share marketing. You used to
contact your known persons and lure them to invest their
money in share market to get good profits assuring the profit
100% within a short period. Further you used to give blank
cheques and ask commission from the victims to gain their
confidence. As per plan, you collected amount from the
victims through Phone-pe which is linked to your bank
account and net-banking and in-person. When you received
money to your bank account, immediately you had transfer
the received amount to your wife's bank account. When the
victims contact you over phone, you first start avoiding them
and then diverting their calls and finally cheating them.
Later, you changed your residential address in order to
conceal your where-abouts from the victims. You have
cheated so many people to the tune of more than Rs. 50.00
lakhs in the guise of providing good profit through
investment in share market.
You are involved in Cr.No.34/2020 u/s 406, 420 IPC of
Malkajgiri Police Station in the limits of Rachakonda Police
Commissionerate which referred by way of your antecedent
criminal background the same is not relied upon for your
detention.”
5. Thereafter, the Detention Order narrates that anticipatory bail/bail has
been granted to the Detenu in all the aforesaid FIRs, the last such
relief granted being on 10.08.2020. The Detention Order then narrates:
“Having regard to your involvement in series of criminal
activities such as cheating in the guise of providing good
profit by investing their money in stock market and collected
huge amounts to the tune of more than Rs. 50 lakhs from
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them in an organized way and in view of the bail petitions
moved by you and granted in the aforesaid cases and later
releasing on conditional bail, I am satisfied that free
movement of such an offender like you is not safe in the
interest of the society as there is an imminent possibility of
you indulging in similar prejudicial activities with another set
of innocent youth and cheat them on the pretext of providing
good profit by investing their money in stock market, which
are detrimental to public order, unless you were prevented
from doing so by an appropriate order of detention.
xxx xxx xxx
Thus you have indulged in the acts of White Collar offences
by committing offences such as cheating so many people by
collecting more than Rs. 50 lakhs from them through Phone
Pay and online banking and sometimes in person in the
guise of providing more profit in the limits of Cyberabad
Police Commissionerate. Further your acts have been
adversely affecting the maintenance of public order and
creating feeling of insecurity among young people, thus
disturbing peace and tranquillity in the area.
It is imperative to prevent you from acting in any manner
prejudicial to the maintenance of public order. I feel that
recourse to normal law may not be effective deterrent-in
preventing you from indulging in such further activities
prejudicial to the maintenance of public order in the area,
unless you were detained by invoking the provisions under
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, (Act No. 01 of
1986)".”
6. As a result thereof, the Detenu was preventively detained from the
date of the Detention Order itself. A representation dated 31.10.2020
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was made by the Petitioner herein to the Commissioner of Police,
Cyberabad Commissionerate [Respondent No. 2] which was
considered by the Advisory Board, who by its Order 11.11.2020 found
that there was sufficient cause to continue the Detention Order. Vide
the Order of the State of Telangana dated 17.12.2020, the Detention
Order was confirmed and the period of detention was directed to be for
a period of one year from 05.10.2020.
7. The impugned judgment, after narrating the facts and the arguments
made by counsel on behalf of the Petitioner as well as counsel on
behalf of the State, then held:
“9.In the instant case, a perusal of the material placed on
record reveals that the detenu was granted bail by the
Courts concerned in all the five cases relied upon by the
detaining authority for preventively detaining him. Under
these circumstances, the contention of the respondents that
the illegal activities of the detenu would disturb the even
tempo of life of the community which makes it prejudicial to
the maintenance of the public order and there is imminent
possibility of the detenu again indulging in similar prejudicial
activities, cannot be brushed aside.”
The judgment then referred to the decisions of this Court in Madhu
Limaye v. Sub-Divisional Magistrate (1970) 3 SCC 746,
Commissioner of Police v. C. Sunita (2004) 7 SCC 467 and
R.Kalavathi v. State of Tamil Nadu (2006) 6 SCC 14, and then
concluded:
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“The modus operandi of the detenu in the alleged offences
which were committed in quick succession would certainly
disturb the public peace and tranquillity. So it is imperative
upon the officers concerned to pass the order of detention,
since the acts of the detenu are prejudicial to the
maintenance of public order. The illegal activities of the
detenu were of such a reach and extent, that they would
certainly affect the even tempo of life and were prejudicial to
the public order. The detaining authority had sufficient
material to record subjective satisfaction that the detention
of the detenu was necessary to maintain public order and
even tempo of life of the community. The order of detention
does not suffer from any illegality. The grounds of detention,
as indicated in the impugned order, are found to be relevant
and in tune with the provisions of the P.D.Act. Since the
detenu got bail in all the five cases relied upon by the
detaining authority, there is nothing wrong on the part of the
detaining authority in raising an apprehension that there is
every possibility of the detenu committing similar offences,
which would again certainly affect the public order. The
quick succession of commission of alleged offences by the
detenu makes it amply clear that there is every possibility of
detenu committing similar offences in future, which are
prejudicial to the maintenance of public order.”
8. Shri Gaurav Agarwal, learned counsel appearing on behalf of the
Petitioner has raised three points before us. First and foremost, he
said there is no proximate or live connection between the acts
complained of and the date of the Detention Order, as the last act that
was complained of, which is discernible from the first 3 FIRs [FIRs
dated 12.12.2019, 12.12.2019 and 14.12.2019], was in December
2019 whereas the Detention Order was passed 9 months later on
28.09.2020. He then argued, without conceding, that at best only a
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‘law and order’ problem if at all would arise on the facts of these cases
and not a ‘public order’ problem, and referred to certain judgments of
this court to buttress the same. He also argued that the Detention
Order was totally perverse in that it was passed only because
anticipatory bail/bail applications were granted. The correct course of
action would have been for the State to move to cancel the bail that
has been granted if any further untoward incident were to take place.
9. Shri Ranjit Kumar, learned senior counsel appearing on behalf of the
State of Telangana, reiterated the grounds contained in the Detention
Order and argued that the Detenu was a habitual fraudster who had
therefore created fear amongst the gullible public, and since he was
likely to commit similar offences in future, it was important to
preventively detain him, as the ordinary law had no deterrent effect on
him. Further, there is no doubt that he had infringed ‘public order’ as
defined by the Telangana Prevention of Dangerous Activities Act and
had disturbed the even tempo of life of persons who were cheated by
him and were likely to be cheated by him.
10.Having heard learned counsel for both parties, it is first important to
set out the important provisions of the Act as follows:
“2. Definitions
In this Act, unless the context otherwise requires,
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(a) “acting in any manner prejudicial to the maintenance of
public order” means when a bootlegger, a dacoit, a drugoffender, a goonda, an immoral traffic offender, LandGrabber, a Spurious Seed Offender, an Insecticide Offender,
a Fertiliser Offender, a Food Adulteration Offender, a Fake
Document Offender, a Scheduled Commodities Offender, a
Forest Offender, a Gaming Offender, a Sexual Offender, an
Explosive Substances Offender, an Arms Offender, a Cyber
Crime Offender and a White Collar or Financial Offender 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 wide-spread
danger to life or public health;
xxx xxx xxxx
(x) “White collar offender” or “Financial Offender” means a
person who commits or abets the commission of offences
punishable under the Telangana Protection of Depositors of
Financial Establishment Act, 1999 (Act 17 of 1999) or under
sections 406 to 409 or 417 to 420 or under Chapter XVIII of
the Indian Penal Code, 1860.”
“Section 3. Power to make orders detaining certain
persons
(1) The Government may, if satisfied with respect to any
bootlegger, dacoit, drug-offender, goonda, immoral traffic
offender, Land-Grabber, Spurious Seed Offender, Insecticide
Offender, Fertilizer Offender, Food Adulteration Offender,
Fake Document Offender, Scheduled Commodities
Offender, Forest Offender, Gaming Offender, Sexual
Offender, Explosive Substances Offender, Arms Offender,
Cyber Crime Offender and White Collar or Financial
Offender that with a view to preventing him from acting in
any manner prejudicial to the maintenance of public order, it
9
is necessary so to do, make an order directing that such
person be detained.”
“Section 13. Maximum period of detention
The maximum period for which any person may be
detained, in pursuance of any detention order made under
this Act which has been confirmed under section 12, shall be
twelve months from the date of detention.”
11.While it cannot seriously be disputed that the Detenu may be a “white
collar offender” as defined under Section 2(x) of the Telangana
Prevention of Dangerous Activities Act, yet a Preventive Detention
Order can only be passed if his activities adversely affect or are likely
to adversely affect the maintenance of public order. Public order is
defined in the Explanation to Section 2(a) of the Telangana Prevention
of Dangerous Activities Act to be a 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.
12.As is well-known, the expressions ‘law and order’, ‘public order’, and
‘security of state’ are different from one another. In Ram Manohar
Lohia v. State of Bihar (1966) 1 SCR 709 the question before this
Court arose under a Preventive Detention Order made under Rule 30
of the Defence of India Rules, which permits apprehension and
detention of a person likely to act in a manner prejudicial to the
maintenance of public order. This Court set out the distinction between
10
a mere law and order disturbance and a public order disturbance as
follows:
“The Defence of India Act and the Rules speak of the
conditions under which preventive detention under the Act
can be ordered. In its long title and the preamble the
Defence of India Act speaks of the necessity to provide for
special measures to ensure public safety and interest, the
defence of India and civil defence. The expression public
safety and interest between them indicate the range of
action for maintaining security peace and tranquillity of India
whereas the expressions defence of India and civil defence
connote defence of India and its people against aggression
from outside and action of persons within the country. These
generic terms were used because the Act seeks to provide
for a congeries of action of which preventive detention is just
a small part. In conferring power to make rules, Section 3 of
the Defence of India Act enlarges upon the terms of the
preamble by specification of details. It speaks of defence of
India and civil defence and public safety without change but
it expands the idea of public interest into maintenance of
public order, the efficient conduct of military operations and
maintaining of supplies and services essential to the life of
the community. Then it mentions by way of illustration in
clause (15) of the same section the power of apprehension
and detention in custody of any person whom the authority
empowered by the rules to apprehend or detain (the
authority empowered to detain not being lower in rank than
that of a District Magistrate), suspects, on grounds
appearing to that authority to be reasonable—
(a) of being of hostile origin; or
(b) of having acted, acting or being about to act or being
likely to act in a manner prejudicial to—
(i) the defence of India and civil defence;
(ii) the security of the State;
(iii) the public safety or interest:
(iv) the maintenance of public order;
(v) India's relations with foreign states:
(vi) the maintenance of peaceful conditions in any part or
area of India: or
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(vii) the efficient conduct of military operations.
It will thus appear that security of the state, public safety or
interest, maintenance of public order and the maintenance
of peaceful conditions in any part or area of India may be
viewed separately even though strictly one clause may have
an effect or bearing on another. Then follows Rule 30, which
repeats the above conditions and permits detention of any
person with a view to preventing him from acting in any of
the above ways. The argument of Dr Lohia that the
conditions are to be cumulatively applied is clearly
untenable. It is not necessary to analyse Rule 30 which we
quoted earlier and which follows the scheme of Section
3(15). The question is whether by taking power to prevent Dr
Lohia from acting to the prejudice of “law and order” as
against “public order” the District Magistrate went outside his
powers.
[page 738-739]
xxx xxx xxx
We have here a case of detention under Rule 30 of the
Defence of India Rules which permits apprehension and
detention of a person likely to act in a manner prejudicial to
the maintenance of public order. It follows that if such a
person is not detained public disorder is the apprehended
result. Disorder is no doubt prevented by the maintenance of
law and order also but disorder is a broad spectrum which
includes at one end small disturbances and at the other the
most serious and cataclysmic happenings. 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
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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.
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.”
[page 745-746]
13.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.
14.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
13
ascribed to the Detenu which are punishable under the three sections
of the Indian Penal Code 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.
15.At this stage, it is important to advert to the counter affidavit dated
17.07.2021 filed by the State of Telangana. Paragraph 18 of the
counter affidavit refers to the granting of bail by Courts in all the five
FIRs, which is the real reason for the passing of the Detention Order,
as follows:
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“18. It is submitted that in the instant case, the decision to
detain the detenu herein is based on the perusal of the
material on records which revealed that the detenu was
granted bail by the Courts concerned in all the five cases
relied upon by the detaining authority for preventively
detaining him. The Respondent No. 2 herein recorded his
satisfaction that the activities of the detenu are prejudicial to
the maintenance of public order, and that ordinary law may
not be an effective deterrent to prevent the detenu from
indulging in further prejudicial activities. Furthermore, the
materials relied upon and circumstances show that
subjective satisfaction of the detaining authority is not
tainted or illegal on any account. Therefore the passing of
the detention order is justified considering that the illegal
activities of the detenu would disturb the even tempo of life
of the community, which makes it prejudicial to the
maintenance of the public order and there is imminent
possibility of the detenu again indulging in similar prejudicial
activities.”
Paragraph 21 of the counter affidavit then states as follows:
“21. It is submitted that in the acts which disturb public
tranquillity or are breaches of the peace should not be given
a narrow meaning, but should be given a liberal
interpretation and the expression ‘in the interest of public
order’ is very wide amplitude as held by this Hon’ble Court in
Madhu Limaye Versus Sub Division Magistrate reported in
AIR 1971 SC 2486. Therefore the Respondent No. 2, before
passing the said detention order considered the crucial
issues as to whether the activities of the detenu were
prejudicial to public and as to whether public order could be
affected by only such contravention which affects the
community or the public at large.”
16.The reference to Madhu Limaye v. Sub-Divisional Magistrate
(supra) is wholly inapposite. This judgment dealt with the scope of the
expression “in the interests of public order” which occurs in Article
19(2) to 19(4) of the Constitution of India. The observations made by
this judgment were in the context of a challenge to Section 144 of the
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Code of Criminal Procedure. Importantly, this Court referred to the
judgment in Ram Manohar Lohia (supra) and then opined:
“19. Adopting this test we may say that the State is at the
centre and society surrounds it. Disturbances of society go
in a broad spectrum from more disturbance of the serenity of
life to jeopardy of the State. The acts become graver as we
journey from the periphery of the largest circle towards the
centre. In this journey we travel first though public
tranquillity, then through public order and lastly to the
security of the State.
20. In dealing with the phrase “maintenance of public order”
in the context of preventive detention, we confined the
expression in the relevant Act to what was included in the
second circle and left out that which was in the largest circle.
But that consideration need not always apply because small
local disturbances of the even tempo of life, may in a sense
be said to effect “public order” in a different sense, namely,
in the sense of a state of law abidingness vis-a-vis the
safety of others. In our judgment the expression “in the
interest of public order” in the Constitution is capable of
taking within itself not only those acts which disturb the
security of the State or act within ordre publique as
described but also certain acts which disturb public
tranquillity or are breaches of the peace. It is not necessary
to give the expression a narrow meaning because, as has
been observed, the expression “in the interest of public
order” is very wide. Whatever may be said of “maintenance
of public order” in the context of special laws entailing
detention of persons without a trial on the pure subjective
determination of the Executive cannot be said in other
circumstances. In the former case this Court confined the
meaning to graver episodes not involving cases of law and
order which are not disturbances of public tranquillity but of
ordre publique.”
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17.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.
18.Several judgments of this Court have reminded us about the role of
the High Courts and this Court in cases of preventive detention. Thus,
in Frances Coralie Mullin v. W.C. Khambra (1980) 2 SCR 1095, a
Division Bench of this Court held:
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“We have no doubt in our minds about the role of the court
in cases of preventive detention: it has to be one of eternal
vigilance. No freedom is higher than personal freedom and
no duty higher than to maintain it unimpaired. The Court's
writ is the ultimate insurance against illegal detention. The
Constitution enjoins conformance with the provisions of
Article 22 and the Court exacts compliance. Article 22(5)
vests in the detenu the right to be provided with an
opportunity to make a representation. Here the Law Reports
tell a story and teach a lesson. It is that the principal enemy
of the detenu and his right to make a representation is
neither high-handedness nor mean-mindedness but the
casual indifference, the mindless insensibility, the routine
and the red tape of the bureaucratic machine.”
Likewise, in Vijay Narain Singh v. State of Bihar (1984) 3 SCC 14, a
3-Judge Bench of this Court (in which A.P. Sen,J. dissented),
Venkataramiah,J., speaking for the majority, reminds us:
“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
jeopardised 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 authorising such detention. When a person is
enlarged on bail by a competent criminal court, great caution
should be exercised in scrutinising 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]
O. Chinappa Reddy,J., in a short concurring judgment also sets out the
constitutional fundamentals qua preventive detention as follows:
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“I entirely agree with my brother Venkataramiah, J. both on
the question of interpretation of the provisions of the Bihar
Control of Crimes Act, 1981 and on the question of the effect
of the order of grant of bail in the criminal proceeding arising
out of the incident constituting one of the grounds of
detention. It is really unnecessary for me to add anything to
what has been said by Venkataramiah, J., .but my brother
Sen, J. has taken a different view and out of respect to him, I
propose to add a few lines. I am unable to agree with my
brother Sen, J. on several of the views expressed by him in
his dissent. In particular, I do not agree with the view that
“those who are responsible for the national security or for
the maintenance of public order must be the sole judges of
what the national security or public order requires” It is too
perilous a proposition. Our Constitution does not give a
carte blanche to any organ of the State to be the sole arbiter
in such matters. Preventive detention is considered so
treacherous and such an anathema to civilised thought and
democratic polity that safeguards against undue exercise of
the power to detain without trial, have been built into the
Constitution itself and incorporated as Fundamental Rights.
There are two sentinels, one at either end. The Legislature
is required to make the law circumscribing the limits within
which persons may be preventively detained and providing
for the safeguards prescribed by the Constitution and the
courts are required to examine, when demanded, whether
there has been any excessive detention, that is whether the
limits set by the Constitution and the Legislature have been
transgressed. Preventive detention is not beyond judicial
scrutiny. While adequacy or sufficiency may not be a ground
of challenge, relevancy and proximity are certainly grounds
of challenge. Nor is it for the court to put itself in the position
of the detaining authority and to satisfy itself that the
untested facts reveal a path of crime. I agree with my
brother Sen,, J. when he says, “It has always been the view
of this Court that the detention of individuals without trials for
any length of time, however short, is wholly inconsistent with
the basic ideas of our Government and the gravity of the evil
to the community resulting from anti-social activities can
never furnish an adequate reason for invading the personal
liberty of the citizen except in accordance with the procedure
established by law.”
19
19.In Union of India v. Yumnam Anand (2007) 10 SCC 190, this Court
reiterated some of these principles as follows:
“8. In case of preventive detention no offence is proved, nor
any charge is formulated and the justification of such
detention is suspicion or reasonability and there is no
criminal conviction which can only be warranted by legal
evidence. Preventive justice requires an action to be taken
to prevent apprehended objectionable activities.
(See R. v. Halliday [1917 AC 260 : (1916-17) All ER Rep Ext
1284 : 86 LJ KB 116 : 116 LT 417 (HL)] and Kubic
Darusz v. Union of India [(1990) 1 SCC 568 : 1990 SCC
(Cri) 227 : AIR 1990 SC 605] .) But at the same time, a
person's greatest of human freedoms i.e. personal liberty is
deprived, and, therefore, the laws of preventive detention
are strictly construed, and a meticulous compliance with the
procedural safeguard, however technical, is mandatory. The
compulsions of the primordial need to maintain order in
society, without which enjoyment of all rights, including the
right of personal liberty would lose all their meanings, are
the true justifications for the laws of preventive detention.
This jurisdiction has been described as a “jurisdiction of
suspicion”, and the compulsions to preserve the values of
freedom of a democratic society and social order sometimes
merit the curtailment of the individual liberty.
(See Ayya v. State of U.P. [(1989) 1 SCC 374 : 1989 SCC
(Cri) 153 : AIR 1989 SC 364] ) To lose our country by a
scrupulous adherence to the written law, said Thomas
Jefferson, would be to lose the law, absurdly sacrificing the
end to the means. No law is an end itself and the curtailment
of liberty for reasons of State's security and national
economic discipline as a necessary evil has to be
administered under strict constitutional restrictions. No carte
blanche is given to any organ of the State to be the sole
arbiter in such matters.”
20.In Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, a 3-Judge
Bench of this Court spoke of the interplay between Articles 21 and 22
as follows:
20
“13. In our opinion, Article 22(3)(b) of the Constitution of
India which permits preventive detention is only an
exception to Article 21 of the Constitution. An exception is an
exception, and cannot ordinarily nullify the full force of the
main rule, which is the right to liberty in Article 21 of the
Constitution. Fundamental rights are meant for protecting
the civil liberties of the people, and not to put them in jail for
a long period without recourse to a lawyer and without a
trial. As observed in R. v. Secy. of State for the Home Deptt.,
ex p Stafford [(1998) 1 WLR 503 (CA)] : (WLR p. 518 F-G)
“ … The imposition of what is in effect a substantial term
of imprisonment by the exercise of executive discretion,
without trial, lies uneasily with ordinary concepts of the
rule of law.”
Article 22, hence, cannot be read in isolation but must be
read as an exception to Article 21. An exception can apply
only in rare and exceptional cases, and it cannot override
the main rule.
14. Article 21 is the most important of the fundamental rights
guaranteed by the Constitution of India. Liberty of a citizen is
a most important right won by our forefathers after long,
historical and arduous struggles. Our Founding Fathers
realised its value because they had seen during the freedom
struggle civil liberties of our countrymen being trampled
upon by foreigners, and that is why they were determined
that the right to individual liberty would be placed on the
highest pedestal along with the right to life as the basic right
of the people of India.
xxx xxx xxx
17. Article 22(1) of the Constitution makes it a fundamental
right of a person detained to consult and be defended by a
lawyer of his choice. But Article 22(3) specifically excludes
the applicability of clause (1) of Article 22 to cases of
preventive detention. Therefore, we must confine the power
of preventive detention to very narrow limits, otherwise the
great right to liberty won by our Founding Fathers, who were
also freedom fighters, after long, arduous and historical
struggles, will become nugatory.”
This Court went on to discuss, in some detail, the conceptual nature of
preventive detention law as follows:
21
“29. Preventive detention is, by nature, repugnant to
democratic ideas and an anathema to the rule of law. No
such law exists in the USA and in England (except during
war time). Since, however, Article 22(3)(b) of the
Constitution of India permits preventive detention, we cannot
hold it illegal but we must confine the power of preventive
detention within very narrow limits, otherwise we will be
taking away the great right to liberty guaranteed by Article
21 of the Constitution of India which was won after long,
arduous and historic struggles. It follows, therefore, that if
the ordinary law of the land (the Penal Code and other penal
statutes) can deal with a situation, recourse to a preventive
detention law will be illegal.
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 situation. Hence, in our
opinion, for this reason also the detention order in question
was illegal.” [emphasis supplied]
In an important passage, this Court then dealt with certain general
observations made by the Constitution Bench in Haradhan Saha v.
The State of West Bengal (1975) 3 SCC 198 as follows:
“33. No doubt it has been held in the Constitution Bench
decision in Haradhan Saha case [(1975) 3 SCC 198 : 1974
SCC (Cri) 816] that even if a person is liable to be tried in a
criminal court for commission of a criminal offence, or is
actually being so tried, that does not debar the authorities
from passing a detention order under a preventive detention
law. This observation, to be understood correctly, must,
however, be construed in the background of the
constitutional scheme in Articles 21 and 22 of the
Constitution (which we have already explained). Article
22(3)(b) is only an exception to Article 21 and it is not itself a
22
fundamental right. It is Article 21 which is central to the
whole chapter on fundamental rights in our Constitution. The
right to liberty means that before sending a person to prison
a trial must ordinarily be held giving him an opportunity of
placing his defence through his lawyer. It follows that if a
person is liable to be tried, or is actually being tried, for a
criminal offence, but the ordinary criminal law (the Penal
Code or other penal statutes) will not be able to deal with
the situation, then, and only then, can the preventive
detention law be taken recourse to.
34. Hence, the observation in SCC para 34 in Haradhan
Saha case [(1975) 3 SCC 198 : 1974 SCC (Cri) 816] cannot
be regarded as an unqualified statement that in every case
where a person is liable to be tried, or is actually being tried,
for a crime in a criminal court a detention order can also be
passed under a preventive detention law.
35. It must be remembered that in cases of preventive
detention no offence is proved and the justification of such
detention is suspicion or reasonable probability, and there is
no conviction which can only be warranted by legal
evidence. Preventive detention is often described as a
“jurisdiction of suspicion” (vide State of
Maharashtra v. Bhaurao Punjabrao Gawande [(2008) 3 SCC
613 : (2008) 2 SCC (Cri) 128] , SCC para 63). The detaining
authority passes the order of detention on subjective
satisfaction. Since clause (3) of Article 22 specifically
excludes the applicability of clauses (1) and (2), the detenu
is not entitled to a lawyer or the right to be produced before
a Magistrate within 24 hours of arrest. To prevent misuse of
this potentially dangerous power the law of preventive
detention has to be strictly construed and meticulous
compliance with the procedural safeguards, however
technical, is, in our opinion, mandatory and vital.
36. It has been held that the history of liberty is the history of
procedural safeguards. (See Kamleshkumar Ishwardas
Patel v. Union of India [(1995) 4 SCC 51 : 1995 SCC (Cri)
643] vide para 49.) These procedural safeguards are
required to be zealously watched and enforced by the court
and their rigour cannot be allowed to be diluted on the basis
23
of the nature of the alleged activities of the detenu. As
observed in Rattan Singh v. State of Punjab [(1981) 4 SCC
481 : 1981 SCC (Cri) 853] : (SCC p. 483, para 4)
“4. … May be that the detenu is a smuggler whose tribe
(and how their numbers increase!) deserves no sympathy
since its activities have paralysed the Indian economy. But
the laws of preventive detention afford only a modicum of
safeguards to persons detained under them, and if freedom
and liberty are to have any meaning in our democratic set
up, it is essential that at least those safeguards are not
denied to the detenus.”
xxx xxx xxx
39. Personal liberty protected under Article 21 is so
sacrosanct and so high in the scale of constitutional values
that it is the obligation of the detaining authority to show that
the impugned detention meticulously accords with the
procedure established by law. The stringency and concern
of judicial vigilance that is needed was aptly described in the
following words in Thomas Pelham Dale case [(1881) 6
QBD 376 (CA)] : (QBD p. 461)
“Then comes the question upon the habeas corpus. It is a
general rule, which has always been acted upon by the
courts of England, that if any person procures the
imprisonment of another he must take care to do so by
steps, all of which are entirely regular, and that if he fails to
follow every step in the process with extreme regularity the
court will not allow the imprisonment to continue.””
[emphasis supplied]
21.Shri Ranjit Kumar, learned senior counsel appearing on behalf of the
State of Telangana relied strongly upon Subramanian v. State of
Tamil Nadu (2012) 4 SCC 699, and in particular upon paragraphs 14
and 15 which read as follows:
24
“14. It is well settled that the court does not interfere with the
subjective satisfaction reached by the detaining authority
except in exceptional and extremely limited grounds. The
court cannot substitute its own opinion for that of the
detaining authority when the grounds of detention are
precise, pertinent, proximate and relevant, that sufficiency of
grounds is not for the court but for the detaining authority for
the formation of subjective satisfaction that the detention of
a person with a view to preventing him from acting in any
manner prejudicial to public order is required and that such
satisfaction is subjective and not objective. The object of the
law of preventive detention is not punitive but only
preventive and further that the action of the executive in
detaining a person being only precautionary, normally, the
matter has necessarily to be left to the discretion of the
executive authority. It is not practicable to lay down objective
rules of conduct in an exhaustive manner. The satisfaction of
the detaining authority, therefore, is considered to be of
primary importance with certain latitude in the exercise of its
discretion.
15. The next contention on behalf of the detenu, assailing
the detention order on the plea that there is a difference
between “law and order” and “public order” cannot also be
sustained since this Court in a series of decisions
recognised that public order is the even tempo of life of the
community taking the country as a whole or even a specified
locality. [Vide Pushpadevi M. Jatia v. M.L.
Wadhawan [(1987) 3 SCC 367 : 1987 SCC (Cri) 526] , SCC
paras 11 & 14; Ram Manohar Lohia v. State of Bihar [AIR
1966 SC 740 : 1966 Cri LJ 608 : (1966) 1 SCR 709] ; Union
of India v. Arvind Shergill [(2000) 7 SCC 601 : 2000 SCC
(Cri) 1422] , SCC paras 4 & 6; Sunil Fulchand Shah v. Union
of India [(2000) 3 SCC 409 : 2000 SCC (Cri) 659] , SCC
para 28 (Constitution Bench); Commr. of Police v. C.
Anita [(2004) 7 SCC 467 : 2004 SCC (Cri) 1944] , SCC
paras 5, 7 & 13.]”
The statement made by this Court in paragraphs 14 and 15 were on
facts which were completely different from the facts of the present
25
case as reflected in paragraphs 16 and 17 thereof which read as
follows:
“16. We have already extracted the discussion, analysis and
the ultimate decision of the detaining authority with
reference to the ground case dated 18-7-2011. It is clear
that the detenu, armed with “aruval”, along with his
associates, armed with “katta” came to the place of the
complainant. The detenu abused the complainant in filthy
language and threatened to murder him. His associates also
threatened him. The detenu not only threatened the
complainant with weapon like “aruval” but also damaged the
properties available in the shop. When the complainant
questioned the detenu and his associates, the detenu
slapped him on his face. When the complainant raised an
alarm for rescue, on the arrival of general public in and
around, they were also threatened by the detenu and his
associates that they will kill them.
17. It is also seen from the grounds of detention that
because of the threat by the detenu and his associates by
showing weapons, the nearby shopkeepers closed their
shops out of fear and auto drivers took their autos from their
stand and left the place. According to the detaining authority,
the above scene created a panic among the public. In such
circumstances, the scene created by the detenu and his
associates cannot be termed as only law and order problem
but it is public order as assessed by the detaining authority
who is supposed to safeguard and protect the interest of
public. Accordingly, we reject the contention raised by the
learned Senior Counsel for the appellant.”
This was obviously a case in which ‘public order’ was directly affected
and not a case in which ‘law and order’ alone was affected and is thus
distinguishable, on facts, from the present case.
22.In Yumman Ongbi Lembi Leima v. State of Manipur (2012) 2 SCC
176, this Court specifically adverted to when a preventive detention
26
order would be bad, as recourse to the ordinary law would be sufficient
in the facts of a given case, with particular regard being had to bail
having been granted. This Court held:
“23. Having carefully considered the submissions made on
behalf of the respective parties, we are inclined to hold that
the (sic exercise of) extraordinary powers of detaining an
individual in contravention of the provisions of Article 22(2)
of the Constitution was not warranted in the instant case,
where the grounds of detention do not disclose any material
which was before the detaining authority, other than the fact
that there was every likelihood of Yumman Somendro being
released on bail in connection with the cases in respect of
which he had been arrested, to support the order of
detention.
24. Article 21 of the Constitution enjoins that:
“21. Protection of life and personal liberty.—No
person shall be deprived of his life or personal liberty except
according to procedure established by law.”
In the instant case, although the power is vested with the
authorities concerned, unless the same are invoked and
implemented in a justifiable manner, such action of the
detaining authority cannot be sustained, inasmuch as, such
a detention order is an exception to the provisions of Articles
21 and 22(2) of the Constitution.
25. When the courts thought it fit to release the appellant's
husband on bail in connection with the cases in respect of
which he had been arrested, the mere apprehension that he
was likely to be released on bail as a ground of his
detention, is not justified.
xxx xxx xxx
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
27
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. An individual
incident of an offence under the Penal Code, however
heinous, is insufficient to make out a case for issuance of an
order of preventive detention.”
This judgment was followed in Mungala Yadamma v. State of A.P.
(2012) 2 SCC 386, as follows:
“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 [(2011) 5 SCC 244 : (2011)
2 SCC (Cri) 596] , 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. Taking recourse to the provisions of
preventive detention is contrary to the constitutional
guarantees enshrined in Articles 19 and 21 of the
Constitution and sufficient grounds have to be made out by
the detaining authorities to invoke such provisions.
8. In fact, recently, in Yumman Ongbi Lembi Leima v. State
of Manipur [(2012) 2 SCC 176] we had occasion to consider
the same issue and the three-Judge Bench had held that 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.
9. 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
28
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 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. Accordingly, while following the three-Judge
Bench decision in Rekha case [(2011) 5 SCC 244 : (2011) 2
SCC (Cri) 596] we allow the appeal and set aside the order
passed by the High Court dated 20-7-2011 [ The High Court
dismissed the same vide Munagala Yadamma v. State of
A.P., WP (Cri) No. 13313 of 2011, order dated 20-7-2011
(AP)] and also quash the detention order dated 15-2-2011,
issued by the Collector and District Magistrate, Ranga
Reddy District, Andhra Pradesh.”
23.Shri Gaurav Agrawal and Shri Ranjit Kumar also cited the judgments
of this Court in Sama Aruna v. State of Telangana (2018) 12 SCC
150 and Collector & District Magistrate v. Sangala Kondamma
(2005) 3 SCC 666 respectively. Since we are not going into other
grounds raised by the Petitioner, it is unnecessary to discuss the law
laid down in these judgments.
24.On the facts of this case, as has been pointed out by us, it is clear that
at the highest, 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
29
certainly cannot provide the springboard to move under a preventive
detention statute. We, therefore, quash the detention order on this
ground. Consequently, it is unnecessary to go into any of the other
grounds argued by the learned counsel on behalf of the Petitioner. The
impugned judgment is set aside and the Detenu is ordered to be freed
forthwith. Accordingly, the appeal is allowed.
…………………..………………J.
(R. F. Nariman)
……………..……………………
J.
(Hrishikesh Roy)
New Delhi,
August 02, 2021.
30
