* Author
[2024] 3 S.C.R. 1181 : 2024 INSC 239
Nenavath Bujji Etc.
v.
The State of Telangana and Ors.
(Criminal Appeal Nos 1738-39 of 2024)
21 March 2024
[Dr Dhananjaya Y Chandrachud, CJI, J.B Pardiwala* and
Manoj Misra, JJ.]
Issue for Consideration
High Court, if erred in affirming the order of preventive detention
passed by the Detaining Authority against the detenu and his
associates for committing offence of gold chain snatching creating
lot of fear and panic in the minds of the women folk.
Headnotes
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) – Preventive detention under – Proposed detenu
along with his associates habitually committing robberies,
property theft offences and gold chain snatchings from women
folk by using criminal force on public roads in broad day light
continuously – Registeration of four FIRs against the detenue
for the said offence, however, the Detaining Authority took into
consideration only two FIRs registered within its territorial
jurisdiction – Order of preventive detention passed – Division
Bench of the High Court upheld the order – Correctness:
Held: Habituality of committing offence cannot, in isolation, be
taken as a basis of any detention order; rather it has to be tested
on the matrices of “public order” – It is only those cases where
such habituality has created disturbance of public order that they
could qualify as a ground to order detention – Inability on the part
of the state’s police machinery to tackle the law and order situation
1182 [2024] 3 S.C.R.
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should not be an excuse to invoke the jurisdiction of preventive
detention – On facts, mere registration of the two FIRs for the
alleged offences of robbery etc could not have been made the
basis to invoke the provisions of the Act 1986 for the purpose of
preventively detaining the detenue on the assumption that he is a
“GOONDA” as defined u/s. 2(g) – What has been alleged against
the detenu could be said to have raised the problems relating to
law and order but it is difficult to say that they impinged on public
order – Nothing to indicate that any such statements of people, more
particularly the women of the concerned locality, were recorded
so as to arrive at the subjective satisfaction that the nefarious
activities of the detenu created an atmosphere of panic and fear
in the minds of the people of the concerned locality – Furthermore,
in none of the FIRs the name of the detenu has been disclosed as
one of the accused persons – Detaining Authority could be said
to have taken into consideration something extraneous – Thus,
the order of detention passed against the detenu and co-detenu
quashed and set aside – Impugned judgment and order passed
by the High Court set aside. [Paras 31, 33, 36, 40, 64, 65]
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 – ss. 9-12 – Role and duty of the Advisory Board:
Held: Advisory Board(s) under preventive detention legislations,
are one of the primary constitutional safeguards available to the
detenu against an order of detention – Advisory Board performs the
most vital duty of independently reviewing the detention order, after
considering all the materials placed before it, or any other material
which it deems necessary – When reviewing the detention order,
the Advisory Board must form an opinion as to the sufficiency of
the cause for warranting detention, then only an order of detention
passed under the Act, 1986 can be confirmed – Framers of the
Constitution have specifically put in place safeguards within Art.
22 through the creation of an Advisory Board, to ensure that any
order of preventive detention is only confirmed upon the evaluation
[2024] 3 S.C.R. 1183
Nenavath Bujji Etc. v. The State of Telangana and Ors.
and scrutiny of an independent authority which determines and
finds that such an order for detention is necessary – Preventive
detention being a draconian measure, any order of detention as
a result of a capricious or routine exercise of powers must be
avoided – Advisory Board must consider whether the detention is
necessary not just in the eyes of the detaining authority but also in
the eyes of law – Requirement of having persons who have been or
are qualified to be High Court judges in the Advisory Board is not
an empty formality, it is there to ensure that, an order of detention
is put to robust scrutiny and examined as it would have been by
any ordinary court of law – Thus, it is imperative that whenever
an order of detention is placed before an Advisory Board, it duly
considers each and every aspect, not just those confined to the
satisfaction of the detaining authority but the overall legality as per
the law that has been laid down by this Court – Entire purpose
behind creation of an Advisory Board is to ensure that no person
is mechanically or illegally sent to preventive detention. [Paras
50, 55-63]
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 –
ss – 9 and 10 – Constitution and composition of an Advisory
Board – Reference to Advisory Board and its functions and
procedure – Stated. [Paras 51-54]
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 – Scope and object – Explained. [Paras 19-21, 23]
Preventive detention – Concept of – Preventive detention visa-vis criminal conviction:
1184 [2024] 3 S.C.R.
Digital Supreme Court Reports
Held: Concept of preventive detention is that the detention of a
person is not to punish him for something he has done but to
prevent him from doing it – Basis of detention is the satisfaction
of the executive about the likelihood of the detenu acting in a
manner, similar to his past acts, which is likely to affect adversely
the maintenance of public order and, thereby prevent him, by an
order of detention, from doing the same – Criminal conviction on the
other hand is for an act already done which can only be possible
by a trial and legal evidence – There is no parallel between the
prosecution in a Court of law and a detention order – One is a
punitive action and the other is a preventive act – In one case a
person is punished on proof of his guilt, and the standard is proof
beyond the reasonable doubt, whereas in the other a person is
detained with a view to prevent him from doing such act(s) as may
be specified in the Act authorizing preventive detention – Power of
preventive detention is qualitatively different from punitive detention
– Power of preventive detention is a precautionary power exercised
in reasonable anticipation. [Paras 24, 25]
Preventive detention – Order of preventive detention – Legality
of – Principles to be adhered to :
Held: Detaining Authority should take into consideration only
relevant and vital material to arrive at the requisite subjective
satisfaction – Detention order requires subjective satisfaction of the
detaining authority which, ordinarily, cannot be questioned by the
court for insufficiency of material – Nonetheless, if the detaining
authority does not consider relevant circumstances or considers
wholly unnecessary, immaterial and irrelevant circumstances, then
such subjective satisfaction would be vitiated – While making a
detention order, the authority should arrive at a proper satisfaction
which should be reflected clearly, and in categorical terms, in
the order of detention – Satisfaction cannot be inferred by mere
statement in the order that “it was necessary to prevent the detenu
from acting in a manner prejudicial to the maintenance of public
order” – Rather the detaining authority will have to justify the
detention order from the material that existed before him and the
process of considering the said material should be reflected in
the order of detention while expressing its satisfaction – Inability
on the part of the state’s police machinery to tackle the law and
order situation should not be an excuse to invoke the jurisdiction of
[2024] 3 S.C.R. 1185
Nenavath Bujji Etc. v. The State of Telangana and Ors.
preventive detention – To arrive at a proper satisfaction warranting
an order of preventive detention, the detaining authority must
examine the material adduced against the prospective detenu to
satisfy itself and, if the said satisfaction is arrived at, it must further
consider whether it is likely that the said person would act in a
manner prejudicial to the public order in near future unless he is
prevented from doing so by passing an order of detention. [Para 43]
Words and phrases – Expression ‘law and order’ and ‘public
order’ – Distinction between:
Held: Expression ‘law and order’ is wider in scope inasmuch as
contravention of law always affects order – ‘Public order’ has a
narrower ambit, and could be affected by only such contravention,
which affects the community or the public at large – Distinction
between the areas of ‘law and order’ and ‘public order’ is one of
degree and extent of the reach, of the act in question on society
not merely in the nature or quality of the act – It is the potentiality
of the act to disturb the even tempo of life of the community which
makes it prejudicial to the maintenance of the public order – If
a contravention in its effect is confined only to a few individuals
directly involved as distinct from a wide spectrum of public, it could
raise problem of law and order only – Acts similar in nature, but
committed in different contexts and circumstances, might cause
different reactions – In one case it might affect specific individuals
only, and thus, touches the problem of law and order only, while
in another it might affect public order – Act by itself, thus, is not
determinant of its own gravity – In its quality it may not differ from
other similar acts, but in its potentiality, that is, in its impact on
society, it may be very different. [Para 32]
Judicial deprecation – Order of preventive detention passed
by the State of Telangana under the provisions of the Act 1986
in a routine and mechanical manner:
Held: State of Telangana to pass orders of preventive detention
taking the judgments pronounced by this Court seriously, and
see to it that the orders of preventive detention are not passed in
a routine manner without any application of mind. [Para 47, 48]
Writs – Writ of ‘Habeas Corpus’ – Meaning and purpose –
Issuance of writ of ‘Habeas Corpus’, when – Stated. [Paras
29-30]
1186 [2024] 3 S.C.R.
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Case Law Cited
Pushkar Mukherjee v. State of West Bengal [1969]
2 SCR 635 : (1969) 1 SCC 10; Haradhan Saha v.
The State of W.B. [1975] 1 SCR 778 : (1974) Cri LJ
1479; Union of India v. Amrit Lal Manchanda [2004]
2 SCR 422 : (2004) 3 SCC 75; Ameena Begum v.
State of Telangana and Others [2023] 11 SCR 958 :
(2023) 9 SCC 587; Khaja Bilal Ahmed v. State of
Telangana and Others [2019] 18 SCR 1174 : (2020)
13 SCC 632; Shibban Lal Saksena v. State of Uttar
Pradesh and Others [1954] 1 SCR 418 : (1953) 2
SCC 61; Shaik Nazeen v. State of Telangana and
Others (2023) 9 SCC 633; Mallada K Sri Ram v.
State of Telangana [2022] 3 SCR 5 (2023) : 13 SCC
537 – referred to.
Books and Periodicals Cited
Halsbury’s Laws of England; Constitutional and
Administrative Law by Hood Phillips & Jackson - referred
to.
List of Acts
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;
Constitution of India.
List of Keywords
Preventive detention; Order of preventive detention; Detaining
Authority; Territorial jurisdiction; Habituality of committing offence;
Public order; Law and order; Goonda; Advisory Board; Capricious
or routine exercise of powers; Criminal conviction; Punitive
detention; Precautionary power; Subjective satisfaction; Routine
and mechanical manner; Writ; Writ of ‘Habeas Corpus’.
[2024] 3 S.C.R. 1187
Nenavath Bujji Etc. v. The State of Telangana and Ors.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
1738-1739 of 2024
From the Judgment and Order dated 16.11.2023 of the High Court for
the State of Telangana at Hyderabad in WP Nos. 26941 and 26886
of 2023
Appearances for Parties
P. Mohith Rao, Ms. J. Akshitha, Advs. for the Appellants.
Ms. Devina Sehgal, Kumar Vaibhav, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
J. B. Pardiwala, J.
For the convenience of the exposition, this judgement is divided in
the following parts:
INDEX*
A. FACTUAL MATRIX............................................................ 3
B. IMPUGNED JUDGMENT OF THE HIGH COURT............ 15
C. SUBMISSIONS ON BEHALF OF THE APPELLANTS.... 17
D. SUBMISSIONS ON BEHALF OF THE RESPONDENTS.. 20
E. ANALYSIS......................................................................... 21
i. Extraneous Considerations that weighed with the
Detaining Authority thereby vitiating the Order
of Preventive Detention.......................................... 34
ii. Summary of the Findings....................................... 42
iii. The Saga Continues................................................. 45
iv. Role of the Advisory Board..................................... 47
F. CONCLUSION.................................................................... 54
* Ed. Note: Pagination as per the original Judgment.
1188 [2024] 3 S.C.R.
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1. Leave granted in both the captioned appeals.
2. Since, the issues raised in both the captioned appeals are the same;
both the appellants are co-detenus and the challenge is also to the
self-same judgment and order passed by the High Court those were
taken up for hearing analogously and are being disposed of by this
common judgment and order.
3. For the sake of convenience, the Criminal Appeal No. ……. of 2024
@ SLP (Cri) No. 3390 of 2024 is treated as the lead matter.
4. This appeal is at the instance of a detenu, preventively detained 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 Offenders, Explosive Substances
Offenders, Arms Offenders, Cyber Crime Offenders and White Collar
or Financial Offenders Act, 1986 (for short, the “Act 1986”) and is
directed against the judgment and order passed by a Division Bench
of the High Court for the State of Telangana at Hyderabad (Special
Original Jurisdiction) dated 16.09.2023 in Writ Petition No. 26941
of 2023 filed by the appellant herein by which the Division Bench
rejected the writ petition and thereby declined to interfere with the
order of preventive detention passed by the Commissioner of Police
Rachakonda Commissionerate, State of Telangana dated 12.09.2023
in exercise of his powers under Section 3(2) of the Act 1986.
A. FACTUAL MATRIX
5. The order of detention dated 12.09.2023 passed by the respondent
No. 2 herein reads thus:
“ORDER OF DETENTION
ORDER OF DETENTION UNDER SUB SECTION (2)
OF SECTION 3 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,
[2024] 3 S.C.R. 1189
Nenavath Bujji Etc. v. The State of Telangana and Ors.
SCHEDULED COMMODITIES OFFENDERS, FOREST
OFFENDERS, GAMING OFFENDERS, SEXUAL
OFFENDERS, EXPLOSIVE SUBSTANCES OFFENDERS,
ARMS OFFENDERS, CYBER CRIME OFFENDERS AND
WHITE COLLAR OR FINANCIAL OFFENDERS ACT, 1
OF 1986 (AMENDMENT ACT NO. 13 OF 2018)”.
WHEREAS, information has been placed before me that the
offender “Nenavath Ravi S/o. Nenavath Jagan, Age: 23 years,
Occ: Coolie, R/o. Indiranagar Colony, Chandrayanagutta,
Hyderabad, N/o. Padamati Thanda village, Neredugumma
Mandal, Nalongda Dist” is a “Goonda” as defined in clause
(g) of Section 2 of the “Telangana prevention of dangerous
activities of bootleggers, dacoits, drug-offenders, goondas,
immoral traffic offenders, land-grabbers, spurious seed
offenders, insecticide offenders, fertilizer 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, 1 of 1986 (Amendment Act No. 13 of 2018)”
and that he has been habitually engaging himself in unlawful
acts and indulging in committing of Robberies, Property
theft offences and Gold Chain Snatchings including sacred
Mangalsutras from women folk by using criminal force on
Public roads in broad day light continuously, repeatedly
in one Police Station limits of Madgul PS, Rachakonda
Commissionerate & Other PSs of Nalgonda District,
thereby creating large scale fear and panic among the
General public especially women and thus his activities
are prejudicial to the maintenance of Public Order and
affected society adversely.
In the recent past, during the year 2023, in quick
succession, the proposed detenu along with his associates
was involved in (04) offences under penal sections covered
by Chapter-XVII of Indian Penal Code, 1860, vide Cr.Nos
1) 129/2023 U/s 379 IPC of PS Chinthapally, 2) 39/2023
U/s 394 IPC of Madgul P.S. 3) 106/2023 U/s 356, 379
IPC of Chinthapally P.S. and 4) 107/2023 U/s 392 IPC of
Madgul P.S. of Rachakonda Commissionerate.
1190 [2024] 3 S.C.R.
Digital Supreme Court Reports
Among the above offences, (02) offences vide Cr. Nos.
1) 129/2023 and 2) 106/2023 were reported to be out of
this Commissionerate limits and as above (02) offences
committed by the proposed detenu are referred to as
criminal history of the proposed detenu and not relied upon.
The remaining (02) offences pertaining to this
Commissionerate vide Cr Nos: 1) 39/2023, 2) 107/2023
of Madgul P.S. are considered as grounds for his detention.
The offender/proposed detenu committed all the above
Property theft offences/gold chain snatching offences
continuously, repeatedly in quick succession and fall within
proximity period and committed in one police station limits
i.e. Madgul PS.
The offender/proposed detenu along with his associates
has been committing offences continuously, and repeatedly
in order to earn easy money to lead lavish life, which are
punishable under chapter XVII of Indian Panel Code. He
is also committing illegal acts (thefts) involving breach of
peace and public tranquility. The continuous presence of
the offender in the area is detrimental to the maintenance
of Public Order, apart from disturbing the peace, tranquility
and social harmony in the society.
WHEREAS, I, D.S. Chauhan, IPS, Commissioner of Police,
Rachakonda, am satisfied from the material placed before
me that the offender Nenavath Ravi, is a Goonda as defined
in clause (g) of Section 2 of the “Telengana prevention,
detention Act, 1 of 1986 (Amendment Act No. 13 of 2018)”
As per the clause (g) of section 2 of the “Telangana
prevention, detention Act, 1 of 1986 (Amendment Act No.
13 of 2018)” a “Goonda” means “a person, who either
by himself or a member of or leader of gang, habitually
commits or attempts to commit or abets the commission
of offences, which are punishable under Chapter XVI or
Chapter XVII or Chapter XXII of the Indian Penal Code”.
All the offences committed by the offender punishable
under penal sections of Chapter XVII of the Indian Penal
Code, 1860”. As such, criminal activities of the offender
[2024] 3 S.C.R. 1191
Nenavath Bujji Etc. v. The State of Telangana and Ors.
fall within the ambit of sec. 2(g) of the Act 1 of 1986 to
term him as a “Goonda” from Madgul PS of Rachakonda
Commissionerate.
WHEREAS, I D.S. Chauhan, I.P.S., Commissioner of
Police, Rachakonda, am aware that the Police Madgul
arrested the offender/proposed detenu Nenavath Ravi on
12-18-2023 at 1230 hours in Cr.No. 107/2023 of PS Madgul
and produced before the Hon’ble JFCM at Amangal for
judicial remand and lodged in Central Prison Cherlapally.
In remaining ground case, he was produced before the
Court by executing PT warrant on 24.08.02023 and lodged
in the jail.
In pursuance of his confession, Police seized stolen booty
i.e. 1) Honda Shine Motor Cycle Br No: TS 05 EZ 6413
pertaining to Cr No. 129/2023 of PS Chintapally from the
house of his relative in Manneguda village at his instance
in the presence of mediators.
Further, the investigating Officer seized 1) One Auto
bearing No: TS 12 UA 7860, 2) One Splendor Plus
bike bearing No.: TS 05 FK 9086 which were used for
commission of offences have also been seized from the
possession of his associates at his instance. In addition,
Gold jewellery in all cases totaling 11.7 tolas was also
seized from the possession of his associate Munavath
Ramesh (A-1) at the instance of this proposed detenu
and other associates.
WHEREAS, I am aware that the offender/proposed detenu
field 1st bail petition in Cr No: 107/2023 of PS Madgul
before the Hon’ble JFCM at Amangal on 17-08-2023 vide
Crl MP No: 285/2023. Police filed counter and prosecution
opposed not to grant bail to him. Accordingly, the bail
petition was dismissed on 24-08-2023.
The proposed detenue again filed fresh bail petition in
two ground cases vide Cr Nos: 1) 39/2023 of PS Madgul,
2) 107/2023 of PS Madgul before the Hon’ble JFCM at
Amangal. Police filed counters opposing to grant bail. Even
though, both the bail petitions were allowed by granting
conditional bail to the proposed detenu on 05-09-2023 vide
1192 [2024] 3 S.C.R.
Digital Supreme Court Reports
Crl MP Nos: 1) 337/2023, 2) 307/2023. Consequently, he
was released in two ground cases vide release order Dis
Nos: 1) 1741/2023, 2) 1742/2023 respectively. He was
also granted bail in all other remaining history cases and
consequently released from jail after furnishing sureties.
The conditions imposed by the Court in two ground cases
are i) The offender/proposed detenu shall not tamper the
witnesses/victim during the course of further investigation,
ii) he is directed to appear before the Court as and when
directed without fail, iii) He is directed not to leave the
State without permission of the Court.
I have perused all the above conditions of the bail and
however, those conditions do not affect of passing the
order of detention on this proposed detenu.
On account of his antecedents, bail orders granted therein
and consequently released from jail, the way he was
indulging in committing chain snatching offences including
sacred mangal sutras (Nuptial Chains) continuously from
the neck of women folk forcibly having felt that the cases
registered against him under the ordinary law have no
deterrent effect in curbing his prejudicial activities, and
having believed strongly that he is not amenable to ordinary
law and as such, having satisfied that there is an imminent
possibility of the proposed detenu indulging in similar
prejudicial activities against, which would be prejudicial to
the maintenance of Public Order, unless he is prevented
from doing so by an appropriate order of detention.
Now therefore, in exercise of the powers conferred on
me under sub section (2) of Section 3 of the “Telangana
prevention, detention Act 1 of 1986 (Amendment Act No.
13 of 2018)” R/w G.O. Rt. No. 792, General Administration
(Spl. Law & Order) Department, Dated : 29-05-2023, I do
hereby order that the accused/proposed detenu Nenavath
Ravi, who is a “Goonda” be detained from the date of
service of this order on him and lodge in Central Prison,
Cherlapally Medchal Dist.”
6. The grounds of detention dated 12.09.2023 furnished to the appellant
herein along with the order of detention referred to above read thus: -
[2024] 3 S.C.R. 1193
Nenavath Bujji Etc. v. The State of Telangana and Ors.
“GROUNDS FOR DETENTION IN RESPECT OF NENAVATH
RAVI 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, 1
OF 1986 (AMENDMENT ACT NO. 13 OF 2018)”
You, Nenavath Ravi S/o. Nenavath Jagan, Age: 23 years,
Occ: Coolie, R/o Indiranagar Colony, Chandrayanagutta,
Hyderabad, N/o. Padamati Thanda village, Neredugumma
Mandal, Nalongda District are a “Goonda” as defined in
clause (g) of section 2 of the “Telangana prevention of
dangerous activities of bootleggers, dacoits, drug-offenders,
goondas, immoral traffic offenders, land-grabbers, spurious
seed offenders, insecticide offenders, fertilizer 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 1 of 1986 (Amendment Act no. 13 of
2018)” and that you have been habitually engaging yourself
in unlawful acts and indulging in committing of Property
Offences, Robberies/Gold Chain Snatching offences
including sacred Mangalasutras by using criminal force on
women folk in Public streets continuously, repeatedly in one
localised area in Madgul PS limits and thereby, creating
widespread fear, panic among the general public and thus
your activities are prejudicial to the maintenance of Public
Order and adversely affecting the society.
Thus, in the recent past, during the year 2023, in quick
succession, you along with your associates were involved
in (04) offences under penal sections covered by Chapter
1194 [2024] 3 S.C.R.
Digital Supreme Court Reports
XVII of Indian Penal Code, 1860, vide Cr.Nos.) 129/2023
U/s 379 IPC of PS Chinthapally, 2) 39/2023 U/s 394 IPC of
Madgul P.S. 3) 106/2023 Us 356, 379 IPC of Chinthapally
PS and 4) 107/2023 U/s 392 IPC of Madgul P.S.
Among the above offences, (02) offences vide Cr Nos:
1) 129/2023, 2) 106/2023 were reported to be out of
this Commissionerate limits and as such the above (02)
offences committed by you are referred to as criminal
history and not relied upon..
The remaining (02) offences committed by in Rachakonda
Commissionerate limits vide Cr Nos: 1) 39/2023, 2)
107/2023 of Madgul P.S. are considered as grounds for
your detention.
You had committed all the above property theft offences
including gold chain snatching offences continuously,
repeatedly and in quick succession which are falling within
proximity period.
Thus, you have been committing offences continuously, and
repeatedly in order to earn easy money to lead lavish life,
which are punishable under Chapter XVII of Indian penal
Code. You are also committing illegal acts (thefts) involving
breach of peace and public tranquility. Your continuous
presence in the area is detrimental to the maintenance
of public order apart from disturbing the peace, tranquility
and social harmony in the society.
THE FACTS OF THE FOLLOWING (02) ROBBERIES,
THEFTS/CHAIN SNATCHING OFFENCES COMMITTED
BY YOU IN THE RECENT PAST WHICH AMPLY
DEMONSTRATE YOUR HABITUAL NATURE OF
COMMITTING CRIME CREATING LARGE SCALE FEAR
IN THE MINDS OF WOMEN COMMUNITY THEREBY
RESTRAINING THEM FROM FREELY MOVING ON
PUBLIC STREETS EVEN DURING BROAD DAY LIGHT
AND YOUR ACTIVITIES ARE PREJUDICIAL TO THE
MAINTENANCE OF PUBLIC ORDER
1) Cr.No. 39/2023 U/s 394 IPC of Madgul Police Station
Dt: 20-03-20223
[2024] 3 S.C.R. 1195
Nenavath Bujji Etc. v. The State of Telangana and Ors.
Facts of the case are that on 20.03.2023 at 19.45 hrs
received a complaint from the complainant/victim Kuntala
Laxmamma S/o Anjaiah, Age 55 years, Occ: Sweeper, R/o
Kolkulapally (V), Madgul (M), R.R (D) in which she stated
that on 20.03.2023 at about 1800 hrs, while the complainant
was on her way laid from her work place in Sri Mahalaxmi
Rice Mill at Kolkulapally Gate, en-route near Jaanam well,
three unknown persons aged about 25-30 years followed
from her behind and started pretending as searching for
Toddy, and thus, they suddenly pounced on her, pasted a
plaster on her mouth and tried to remove her silver cups
(vendi Kadiyalu) from her legs. But, they could not succeed
and as such they robbed Rs. 7550/- from her tiffin carrier
box and fled away from the place. Further, she added that
she can identify them if she sees them again. Hence, she
requested to take necessary action against the persons.
Basing on the above contents, a case in Cr No: 39/2023 U/s
394 IPC has been registered and taken up investigation.
During the course of investigation, the IO visited the scene
of offence and recorded the details of the scene of offence
observation in Crime Details Form (CDF). IO examined
the complainant, other witnesses who got panicked on
seeing the incident in broad day light and recorded their
detailed statements.
While the investigation was in progress, it was detected by
arresting the accused/proposed detenu in Cr No. 107/2023
u/s 392 IPC of Madgul PS on 12-08-2023. During the
examination, he confessed his guilt of offence of the above
case and other offences as well. The offender/propose
detenu confessed that they spent entire booty for their
lavish expenses.
Role & participation of this proposed detenu:-
It was made out that the offender/proposed detenu
Nenavath Ravi (A-3) was sitting in rear side seat of the auto
along with A-4 and they noticed a lady near Kolakulapalli
village outskirts, Madgul after passing some distance
A-1 Ramesh was driving the auto they forcibly took her
into the bushes and when A-4 Munavath Naresh caught
1196 [2024] 3 S.C.R.
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her legs and then proposed detenu A-3 Nenavath Ravi
caught her hands and A-1 tried to rob her silver anklets
but A-1 could not remove the same and as last resort, he
committed theft of Rs. 7,550/- from the complainant tiffin
box and fled away into the auto. They spend entire booty
for their lavish expenses.
As such, he was produced before the Hon’ble Court by
executing PT warrant on 24-08-2023 and thus regularized
his arrest in the case. The case is UI for collecting further
evidence.
2) Cr. No. 107/2023 U/s 392 of Madgul Police Station,
Dt: 01-08-2023
Facts of the case are that on 01-08-2023 at 1700
hours received a complaint from the complainant Smt.
Nutanaganti Pullama W/o late Rama Lingaiah Age: 80
years R/o Madgul (V) & (M), R.R (D) in which she stated
that on 01.08.2023 at about 1430 hours when she was
sitting in front of her house and in the meantime one
unknown person age about 20-30 years came to her by
foot and all of a sudden he robbed her two rows Gold
Nuptial Chain weighing about 03 tolas and fled away on
the bike on which another unknown person was already
waiting and both of them escaped on the bike towards
Mall route. The person who robbed her gold chain had
worn yellow colour shirt and while she raised screams,
her neighbour Gandikota Jangaiah came there, but at
the time both the persons escaped away from there. The
complainant further stated that she can identify them if
she sees them again. Hence the complainant requested
to take necessary action.
Basing on the above contents, a case in CR No. 107/2023
U/s 356, 379 IPC has been registered and subsequently
altered to Section 392 IPC.
During the course of Investigation, Police visited the
scene of offence and recorded the details of the scene of
offence observations in Crime Details Form (CDF). The
IO examined the complainant and other witnesses and
recorded their detailed statements.
[2024] 3 S.C.R. 1197
Nenavath Bujji Etc. v. The State of Telangana and Ors.
Further, collected CC footages from the vicinity of
crime scene analysed the same and through which it
was identified the offender Munavath Ramesh and his
associate while they were having a recce. Upon that the
IO setup informants and deputed search parties to locate
the offenders.
While the investigation was in progress, the police
Madgul arrested the offender/proposed detenu Nenavath
Ravi on 12-08-2023 at 1230 hours Cr. No. 107/2023
of PS Madgul and produced before the Hon’ble JFCM
at Amangal for judicial remand and lodged in Central
Prison Cherlapally.
In pursuance of his confession, police seized stolen booty
i.e. 1) Honda Shine Motor Cycle BR No: TS 05 EZ 6413
pertaining to Cr No. 129/20232 of PS Chintapally from the
house of his relative in Manneguda village at his instance
in the presence of mediators.
Further, the investigating Officer seized 1) One Auto
bearing No: TS 12 UA 7860, 2) One Splendor Plus
bike bearing No: TS 05 FK 9086 which were used for
commission of offences have also been seized from the
possession of his associates at his instance. In addition,
Gold jewellery in all cases totaling 11.7 tolas was also
seized from the possession of his associate Munavath
Ramesh (A-1) at the instance of this proposed detenu
and other associates. The case is UI for collecting further
evidence.
Linking Evidence:
i) In pursuance of his confession, Police seized stolen
booty i.e. Gold pusthelathadu weighing about (03)
tolas from the position of his associate Munnavat
Ramesh A-1 at his instance.
ii) CC footages collected from the vicinity of crime
scene. It can be seen his associates while they were
having recce. The above evidence establishes the
involvement of proposed detenu.
1198 [2024] 3 S.C.R.
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Role & participation of this proposed detenu:
In this case, while the proposed detenu along with A4
Munavath Naresh was waiting on Sagar Highway, the
offenders A-1, A2 went near the victim and forcibly robed
her gold nuptial chain weighing about (03) tolas from
the neck of victim woman and reached to A-3 (propose
detenu) and A-4. They gave stolen booty to A-3 and A-4
and disbursed from the spot on their vehicles.
As per clause (g) of section 2 of the “Telangana prevention,
detention Act 1 of 1986 (Amendment Act No. 13 of 2018)”
a “Goonda” means “a person who either by himself or
as a member of or leader of gang, habitually commits or
attempts to commit or abets the commission of offences,
which are punishable under Chapter XVI or Chapter XVII
or Chapter XXII of the Indian Penal Code”.
You have been indulging in the offences falling under
chapter XVII of IPC and you are habitually indulging in
criminal activities in a manner prejudicial to the maintenance
of Public Order and enforcement of ordinary penal laws
could not prevent you from indulging in such activities.
After having come to know about criminal activities
of proposed detenu through media and on account
of chain snatching offences that were taken place
in a small village of Madgul in the Commissionerate
limits in recent past, the General Public especially
women folk those who are going for work on daily
wages in the area got panicked and apprehended fear
of coming out of their houses by wearing even their
sacred Gold Nuptial Threads which is sentiment to
large section of Indian women. Thus, the incidents
created panic in the minds of general public living in
Madgul village and thereby your criminal activities are
adversely affecting the Public Order and leaving large
section of people under the grip of fear and shock.
Therefore, your activities are required to be prevented
by an appropriate detention order.
WHEREAS, I am aware that you have filed 1st bail petition
in Cr No.: 107/2023 of PS Madgul before the Hon’ble JFCM
[2024] 3 S.C.R. 1199
Nenavath Bujji Etc. v. The State of Telangana and Ors.
at Amangal on 07-08-20 23 vide Crl MP No. 285/2023.
Police filed counter and prosecution opposed not to grant
bail to you. Accordingly, the bail petition was dismissed
on 24-08-2023.
You have again filed fresh bail petitions in two ground cases
vide CR Nos: 1) 39/2023 of PS Madgul, 2) 107/2023 of
PS Madgul before the Hon’ble JFCM at Amangal. Police
filed counters opposing to grant bail. Even though, the
bail petitions were allowed by granting conditional bail
to you on 05-09-2023 vide Crl Mp Nos: 1) 337/2023,
2) 307/2023. Consequently, you were released in two
ground cases vide release order Dis Nos: 1) 1741/2023,
2) 1742/2023 respectively. You were also granted bail in all
other remaining history cases and consequently released
from jail after furnishing sureties.
The conditions imposed by the Court in two ground cases
are i) The offender/proposed detenu shall not tamper the
witnesses/victim during the course of further investigation,
ii) he is directed to appear before the court as and when
directed without fail, iii) He is directed not to leave the
state without permission of the Court.
I have perused all the above conditions of the bail and
however, those conditions do not affect of passing the
order of detention
On account of your antecedents, bail orders granted
therein and consequently released from jail, the way
you were indulging in committing chain snatching
offences including sacred mangal sutras (nuptial chains)
continuously from the neck of women folk forcibly, having
felt that the cases registered against you under the
ordinary law have no deterrent effect in curbing your
prejudicial activities and having believed strongly that you
are not amenable to ordinary law and as such, having
satisfied that there is an imminent possibility of indulging
in similar prejudicial activities again, which would be
prejudicial to the maintenance of Public Order unless
you are prevented from doing so by an appropriate order
of detention.
1200 [2024] 3 S.C.R.
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Hence, I am satisfied that a detention Order under
the provisions of the “Telangana prevention, detention
Act 1 of 1986 (Amendment Act no. 13 of 2018) should
be invoked against you, and you should be detained
under sub-section (2) of section 3 of Act No. 1 of 1986
(Amendment Act No. 13 of 2018)” R/w G.O. Rt. No. 792,
General Administration (Spl. Law & Order) Department,
Dated 29-05-2023 with a view to prevent you from acting
in any manner prejudicial to the maintenance of public
order
You have a right to represent against this order of Detention
to the 1) Detaining authority i.e. the Commissioner
of Police, Rachakonda, 2) The Principal Secretary to
Government (Political) General Administration Dep.
Telangana, Hyderabad and 3) The Advisory Board or if
you choose to make any representation, you may submit
your representation with sufficient number of copies to
the Jail Superintendent for onward transmission. You also
have a right to appear before the Advisory Board and also
to avail the assistant of a person other than a lawyer to
represent your case.”
7. Thus, from the aforesaid it is evident that the respondent No. 2
herein was subjectively satisfied based on the materials on record
that the activities of the appellant detenu were prejudicial to the
maintenance of public order. According to the Detaining Authority,
i.e., the respondent No. 2, the appellant is a “GOONDA” as defined
under Section 2(g) of the Act 1986 and with a view to preventing
him from acting in any manner prejudicial to the maintenance of
public order, it was felt necessary that the appellant be preventively
detained.
B. IMPUGNED JUDGMENT OF THE HIGH COURT
8. The appellant detenu being aggrieved by the order of preventive
detention preferred Writ Petition No. 26941 of 2023 in the High
Court for the State of Telangana at Hyderabad seeking a writ of
Habeas Corpus. The High Court vide its impugned judgment and
order declined to interfere and accordingly rejected the writ petition.
9. The High Court while rejecting the writ application filed by the appellant
detenu made the following observations: -
[2024] 3 S.C.R. 1201
Nenavath Bujji Etc. v. The State of Telangana and Ors.
“16.While passing the detention order, the detaining
authority not only considered the commission of offences
committed by the detenus and their associates, but also
considered its impact disturbing ‘public order’ and also
the modus operandi adapted by them in commission of
offences. Therefore, in order to prevent the detenus from
committing similar offences, the impugned detention order
was passed.
xxx xxx xxx
21. As discussed above, the detenus have committed the
aforesaid two (02) offences of robbery and chain snatchings
and creating panic and scare among the public, especially
in women folk. Thus, they have engaged in unlawful
activities by committing the said bodily and property
offences, which are serious and grave in nature, and
thereby acting in a manner prejudicial to the maintenance
of ‘public order’ as it disturbs peace and tranquility in the
society. Further, the police also seized motorbikes used
in commission of the offences.
22. In view of the same, it is clear that the said acts
committed by the detenus would certainly create large
scale panic in general public, more particularly women
folk. All the said aspects were considered by the detaining
authority while passing detention order. The aspects of
modus operandi and the acts committed by the detenus
and their associates in commission of offences and filing of
petitions by the police seeking cancellation of bail granted
to the detenus were also considered by the detaining
authority while passing detention order. Therefore, viewed
from any angle, we are of the considered view that there
is no error in impugned detention orders dated 12.09.2023
passed by the respondent No. 2 and the consequential
approval orders passed by respondent No. 1 vide G.O.Rt.
NOs. 1305 and 1306 dated 20.09.2023 respectively.
Thus, the writ petitions fail and the same are liable to
be dismissed.”
10. Thus, the plain reading of the aforesaid line of reasoning adopted
by the High Court would indicate that as the appellant detenu had
1202 [2024] 3 S.C.R.
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engaged himself in unlawful activities of serious nature he could be
said to have acted in a manner prejudicial to the maintenance of
public order. The line of reasoning as above gives an impression
that what weighed with the High Court are the allegations of chain
snatching creating lot of fear and panic in the minds of the women
folk. This according to the High Court was sufficient to reach to the
conclusion that the alleged antisocial activities of the appellant detenu
are prejudicial to the maintenance of the public order.
11. In such circumstances referred to above, the appellant detenu is
here before this Court with the present appeal.
C. SUBMISSIONS ON BEHALF OF THE APPELLANTS
12. Mr. P. Mohith Rao, the learned counsel appearing for the appellant
detenu made the following submissions:
a. Mere registration of FIRs for the offences punishable under
Chapter XVII of the Indian Penal Code (“IPC”) is not sufficient
to label or brand any individual as a “GOONDA” as defined
under Section 2(g) of the Act 1986. In other words, mere
registration of the FIRs for the offences of theft, robbery etc.
is not sufficient to arrive at the subjective satisfaction that the
alleged activities of the appellant detenu are prejudicial to the
maintenance of public order.
b. As per the explanation to Section 2(a) of the Act 1986, the
activities in question must cause “harm, danger or alarm or a
feeling of insecurity among the general public or any section
thereof to be prejudicial to public order”.
c. The criminal cases which have been registered against the
appellant detenu involve the ordinary “law and order” problems or
situations. The appellant detenu was granted bail in all the FIRs
registered against him after giving an opportunity of hearing to
the State. If it is the case of the State that the appellant detenu
continued to indulge in the anti-social activities, the State ought
to have approached the concerned court for cancellation of
bail. Issuance of a preventive detention order which drastically
curtails the appellant’s right to liberty under Article 21 of the
Constitution is certainly neither the most suitable nor the least
restrictive method of preventing the appellant from engaging
in any further criminal activities.
[2024] 3 S.C.R. 1203
Nenavath Bujji Etc. v. The State of Telangana and Ors.
d. The impugned order of preventive detention suffers from the
vice of total non-application of mind. The impugned order of
detention could be said to have been vitiated on account of the
extraneous matters being considered by the Detaining Authority.
In the impugned order of detention the detaining authority has
stated that the appellant detenu is a habitual offender as many
FIRs have been registered against him, however, the Detaining
Authority thought fit to take into consideration only two FIRs out
of the four FIRs as the other two FIRs were registered outside the
Commissionerate limits of the Detaining Authority. In other words,
the offences alleged with respect to the two FIRs (not taken into
consideration) were not committed within the Commissionerate
limits of the Detaining Authority. This is suggestive of the fact
that the detaining authority took into consideration the “historysheet” of the detenu without recording any subjective satisfaction
that such habituality has created a “public disorder”. Merely,
because the appellant detenu has been charged for multiple
offences it cannot be said that he is in the habit of committing
such offences. Habituality of committing offences cannot, in
isolation, be taken as a basis of any detention order; rather it
has to be tested on the matrices of public order.
13. In such circumstances referred to above, the learned counsel prayed
that the impugned judgment and order passed by the High Court be
set side and as a consequence, the impugned order of preventive
detention may also be quashed and set aside and the authorities
concerned may be directed to release the appellant detenu forthwith
from the detention.
D. SUBMISSIONS ON BEHALF OF THE RESPONDENTS
14. Mr. Kumar Vaibhav, the learned counsel appearing for the respondent
made the following submissions:
a. No error much less an error of law could be said to have been
committed by the High Court in passing the impugned judgment
and order.
b. The order of preventive detention came to be passed by the
Detaining Authority after due consideration of the entire material
placed before him in the form of FIRs, CCTV camera footage,
statements of various witnesses recorded in the course of the
investigations, confessions of the appellant detenu before the
1204 [2024] 3 S.C.R.
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police as regards the alleged crime, etc. It cannot be said that
there was no material worth the name before the Detaining
Authority to arrive at the subjective satisfaction that the activities
of the appellant detenu are prejudicial.
c. Indulging repeatedly, in the activity of snatching of gold chains
from the necks of women folk has created an atmosphere of
panic and scare in the locality.
15. In such circumstances referred to above, the learned counsel prayed
that there being no merit in this appeal, the same may be dismissed.
E. ANALYSIS
16. Having heard the learned counsel appearing for the parties and
having gone through the materials on record the only question that
falls for our consideration is whether the High Court committed any
error in rejecting the writ petition filed by the appellant detenu and
thereby affirming the order of preventive detention passed by the
Detaining Authority?
17. Section 2(a) of the Act 1986 reads thus:
“(a) “acting in any manner prejudicial to the maintenance
of public order” means when a boot-legger, a dacoit, a
drug-offender, 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”
[2024] 3 S.C.R. 1205
Nenavath Bujji Etc. v. The State of Telangana and Ors.
18. Section 2(g) of the Act 1986 defines the term “GOONDA”:
“(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;”
19. The Act 1986, has been enacted with a clear object to prevent
crime and to protect the society from the anti-social elements and
dangerous characters by placing them under detention for such a
duration as would disable them from resorting to undesirable criminal
activities. The provisions of the Act 1986 are intended to deal with
habitual criminals, dangerous and desperate outlaws, who are so
hardened and incorrigible that the ordinary provisions of the penal
laws and the mortal/moral fear of punishment for crime are not
sufficient deterrence for them.
20. The law is well settled that the power under any enactment relating
to preventive detention has to be exercised with great care, caution
& restraint. In order to pass an order of detention under the Act 1986
against any person, the Detaining Authority must be satisfied that
he is a “GOONDA” within the meaning of Section 2(g) of the Act
1986, who either by himself or as a member of or a 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 IPC as according to the explanation to Section 2(a) of
the Act 1986, it is such a “GOONDA” who for the purpose of Section
2 of the Act 1986 shall be deemed to be a person “acting in any
manner prejudicial to the maintenance of public order” and against
whom an order of detention may lawfully be made.
21. Further, sub-section (1) of Section 3 confers power on the State
Government and a District Magistrate or a Commissioner of Police
as the case may be under the direction of the State Government to
detain a person on being satisfied that it is necessary to do so with
a view to prevent him from acting in any manner prejudicial to the
maintenance of “public order”.
22. In the aforesaid context, we may refer to a decision of this Court in
Pushkar Mukherjee v. State of West Bengal reported in (1969)
1 SCC 10:
1206 [2024] 3 S.C.R.
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“13. …Does the expression “public order” take in every
kind of infraction of order or only some categories thereof.
It is manifest that every act of assault or injury to specific
persons does not lead to public disorder. When two
people quarrel and fight and assault each other inside a
house or in a street, it may be said that there is disorder
but not public disorder. Such cases are dealt with under
the powers vested in the executive authorities under the
provisions of ordinary criminal law but the culprits cannot
be detained on the ground that they were disturbing public
order. The contravention of any law always affects order
but before it can be said to affect public order, it must affect
the community or the public at large. In this connection
we must draw a line of demarcation between serious and
aggravated forms of disorder which directly affect the
community or injure the public interest and the relatively
minor breaches of peace of a purely local significance
which primarily injure specific individuals and only in a
secondary sense public interest. A mere disturbance of
law and order leading to disorder is thus not necessarily
sufficient for action under the Preventive Detention Act but
a disturbance which will affect public order comes within
the scope of the Act. …”
(Emphasis supplied)
23. The explanation attached to Section 2(a) of the Act 1986 reproduced
above contemplates that ‘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 person referred
to in Section 2(a) directly or indirectly, are causing or is likely to
cause any harm, danger or alarm or feeling of insecurity among
the general public or any section thereof or a grave or widespread
danger to life, property or public health. The Explanation to Section
2(a) also provides that for the purpose of Section 2, a person
shall be deemed to be “acting in any manner prejudicial to the
maintenance of public order” when such person is a “GOONDA”
and engaged in activities which affect adversely or are likely to
affect adversely the maintenance of public order. It, therefore,
becomes necessary to determine whether besides the person
[2024] 3 S.C.R. 1207
Nenavath Bujji Etc. v. The State of Telangana and Ors.
being a “GOONDA” his alleged activities are such which adversely
affected the public order or are likely to affect the maintenance
of public order.
24. The essential concept of preventive detention is that the detention
of a person is not to punish him for something he has done but to
prevent him from doing it. The basis of detention is the satisfaction
of the executive about the likelihood of the detenu acting in a
manner, similar to his past acts, which is likely to affect adversely
the maintenance of public order and, thereby prevent him, by an
order of detention, from doing the same. A criminal conviction
on the other hand is for an act already done which can only be
possible by a trial and legal evidence. There is no parallel between
the prosecution in a Court of law and a detention order under the
Act 1986. One is a punitive action and the other is a preventive
act. In one case a person is punished on proof of his guilt, and
the standard is proof beyond the reasonable doubt, whereas in the
other a person is detained with a view to prevent him from doing
such act(s) as may be specified in the Act authorizing preventive
detention.
25. The power of preventive detention is qualitatively different from punitive
detention. The power of preventive detention is a precautionary power
exercised in reasonable anticipation. It may or may not relate to
an offence. It is not a parallel proceeding. It does not overlap with
prosecution even if it relies on certain facts for which prosecution
may be launched or may have been launched. An order of preventive
detention, may be made before or during prosecution. An order of
preventive detention may be made with or without prosecution and
in anticipation or after discharge or even acquittal. The pendency of
prosecution is no bar to an order of preventive detention. An order of
preventive detention is also not a bar to prosecution. (See : Haradhan
Saha v. The State of W.B., 1974 Cri LJ 1479]
26. In Halsbury’s Laws Of England, it is stated thus:—
“The writ of habeas corpus ad subjiciendum” unlike
other writs, is a prerogative writ, that is to say, it is an
extraordinary remedy, which is issued upon cause shown
in cases where the ordinary legal remedies are inapplicable
or inadequate. This writ is a writ of right and is granted
ex debito justitiate. It is not, however, a writ of course.
1208 [2024] 3 S.C.R.
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Both at common law and by statute, the writ of habeas
corpus may be granted only upon reasonable ground for
its issue being shown. The writ may not in general be
refused merely because an alternative remedy by which the
validity of the detention can be questioned. “Any person is
entitled to institute proceedings to obtain a writ of habeas
corpus for the purpose of liberating another from an illegal
imprisonment and any person who is legally entitled to
the custody of another may apply for the writ in order to
regain custody. In any case, where access is denied to a
person alleged to be unjustifiably detained, so that there
are no instructions from the prisoner, the application may
be made by any relation or friend on an affidavit setting
forth the reason for it being made.”
27. In Corpus Juris Secundum, the nature of the writ of habeas corpus
is summarized thus: —
“The writ of habeas corpus is a writ directed to the person
detaining another, commanding him to produce the body of
the prisoner at a designated time and place with the day
and cause of his caption and detention to do, submit to,
and receive whatsoever the court or judge awarding the
writ shall consider in that behalf.” ‘Habeas corpus’ literally
means “have the body”. By this writ, the court can direct to
have the body of the person detained to be brought before
it in order to ascertain whether the detention is legal or
illegal. Such is the predominant position of the writ in the
Anglo-Saxon Jurisprudence.”
28. In Constitutional and Administrative Law By Hood Phillips & Jackson,
it is stated thus:—
“The legality of any form of detention may be challenged
at common law by an application for the writ of habeas
corpus. Habeas corpus was a prerogative writ, that is, one
issued by the King against his officers to compel them to
exercise their functions properly. The practical importance
of habeas corpus as providing a speedy judicial remedy
for the determination of an applicant’s claim for freedom
has been asserted frequently by judies and writers.
[2024] 3 S.C.R. 1209
Nenavath Bujji Etc. v. The State of Telangana and Ors.
Nonetheless, the effectiveness of the remedy depends in
many instances on the width of the statutory power under
which a public authority may be acting and the willingness
of the Courts to examine the legality of decision made in
reliance on wide ranging statutory provision. It has been
suggested that the need for the “blunt remedy” of habeas
corpus has diminished as judicial review has developed
into an ever more flexible jurisdiction. Procedural reform of
the writ may be appropriate, but it is important not to lose
sight of substantive differences between habeas corpus and
remedies under judicial review. The latter are discretionary
and the court may refuse relief on practical grounds; habeas
corpus is a writ of right, granted ex debito justitiae.”
29. The ancient prerogative writ of habeas corpus takes its name from
the two mandatory words “habeas” and “corpus”. ‘Habeas Corpus’
literally means ‘have his body’. The general purpose of these writs
as their name indicates was to obtain the production of the individual
before a court or a judge. This is a prerogative process for securing
the liberty of the subject by affording an effective relief of immediate
release from unlawful or unjustifiable detention, whether in prison or
in private custody. This is a writ of such a sovereign and transcendent
authority that no privilege of power or place can stand against it.
It is a very powerful safeguard of the subject against arbitrary acts
not only of private individuals but also of the Executive, the greatest
safeguard for personal liberty, according to all constitutional jurists.
The writ is a prerogative one obtainable by its own procedure. In
England, the jurisdiction to grant a writ existed in Common Law, but
has been recognized and extended by statute. It is well established
in England that the writ of habeas corpus is as of right and that the
court has no discretion to refuse it. “Unlike certiorari or mandamus,
a writ of habeas corpus is as of right” to every man who is unlawfully
detained. In India, it is this prerogative writ which has been given a
constitutional status under Articles 32 and 226 of the Constitution.
Therefore, it is an extraordinary remedy available to a citizen of this
Country, which he can enforce under Article 226 or under Article 32
of the Constitution of India.
30. It is the duty of the Court to issue this writ to safeguard the freedom
of the citizen against arbitrary and illegal detention. Habeas corpus
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is a remedy designed to facilitate the release of persons detained
unlawfully, not to punish the person detaining and it is not, therefore,
issued after the detention complained of has come to an end. It is
a remedy against unlawful detention. It is issued in the form of an
order calling upon the person who has detained another, whether
in prison or in private custody, to ‘have the body’ of that other
before the Court in order to let the Court know on what ground the
latter has been confined and thus to give the Court an opportunity
of dealing with him as the law may require. By the writ of habeas
corpus, the Court can cause any person who is imprisoned to be
brought before the Court and obtain knowledge of the reason why he
is imprisoned and then either set him free then and there if there is
no legal justification for the imprisonment, or see that he is brought
speedily to trial. Habeas Corpus is available against any person
who is suspected of detaining another unlawfully and not merely
against the police or other public officers whose duties normally
include arrest and detention. The Court must issue it if it is shown
that the person on whose behalf it is asked for is unlawfully deprived
of his liberty. The writ may be addressed to any person whatsoever
an official or a private individual-who has another in his custody.
The claim (for habeas corpus) has been expressed and pressed in
terms of concrete legal standards and procedures. Most notably, the
right of personal liberty is connected in both the legal and popular
sense with procedures upon the writ of habeas corpus. The writ is
simply a judicial command directed to a specific jailer directing him
or her to produce the named prisoner together with the legal cause
of detention in order that this legal warrant of detention might be
examined. The said detention may be legal or illegal. The right which
is sought to be enforced by such a writ is a fundamental right of a
citizen conferred under Article 21 of the Constitution of India, which
provides:—
“Article 21. Protection of life and personal liberty.—
No person shall be deprived of his life or personal liberty
except according to the procedure established by law.”
31. We are of the view that mere registration of the two FIRs for the
alleged offences of robbery etc. could not have been made the
basis to invoke the provisions of the Act 1986 for the purpose of
preventively detaining the appellant herein on the assumption that
[2024] 3 S.C.R. 1211
Nenavath Bujji Etc. v. The State of Telangana and Ors.
he is a “GOONDA” as defined under Section 2(g) of the Act 1986.
What has been alleged against the appellant detenu could be said
to have raised the problems relating to law and order but we find
it difficult to say that they impinged on public order. This Court has
time and again, reiterated that in order to bring the activities of a
person within the expression of “acting in any manner prejudicial
to the maintenance of public order” the activities must be of such
a nature that the ordinary laws cannot deal with them or prevent
subversive activities affecting society. Inability on the part of the
state’s police machinery to tackle the law and order situation should
not be an excuse to invoke the jurisdiction of preventive detention.
32. The crucial issue is whether the activities of the detenu were
prejudicial to public order. While the expression ‘law and order’ is
wider in scope inasmuch as contravention of law always affects order,
‘Public order’ has a narrower ambit, and could be affected by only
such contravention, which affects the community or the public at
large. Public order is the even tempo of life of the community taking
the country as a whole or even a specified locality. The distinction
between the areas of ‘law and order’ and ‘public order’ is one of
degree and extent of the reach, of the act in question on society.
It is the potentiality of the act to disturb the even tempo of life of
the community which makes it prejudicial to the maintenance of
the public order. If a contravention in its effect is confined only to a
few individuals directly involved as distinct from a wide spectrum of
public, it could raise problem of law and order only. In other words,
the true distinction between the areas of law and order and public
order lies not merely in the nature or quality of the act, but in the
degree and extent of its reach upon society. Acts similar in nature,
but committed in different contexts and circumstances, might cause
different reactions. In one case it might affect specific individuals
only, and therefore touches the problem of law and order only, while
in another it might affect public order. The act by itself, therefore,
is not determinant of its own gravity. In its quality it may not differ
from other similar acts, but in its potentiality, that is, in its impact on
society, it may be very different. [See: Union of India v. Amrit Lal
Manchanda, (2004) 3 SCC 75.]
33. We have noticed over a period of time that in reports sponsoring
preventive detention the officers concerned rely on statements of few
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individuals residing in the concerned locality so as to project existence
of an atmosphere of panic or fear in the minds of the people residing
in that locality. While recording such statements, the individuals
concerned are assured that their identity would not be disclosed so
that the maker of the statement may not get into any difficulty. Some
of the State enactments relating to preventive detention, for instance,
Section 9 of the Gujarat Prevention of Anti-Social Activities Act,
1985, empower the Detaining Authority not to disclose facts which
it considers to be against the public interest. In the case on hand,
there is nothing to indicate that any such statements of people, more
particularly the women of the concerned locality, were recorded so
as to arrive at the subjective satisfaction that the nefarious activities
of the detenu created an atmosphere of panic and fear in the minds
of the people of the concerned locality. There is a good reason why
we are saying so or rather touching upon this issue. It appears that
in none of the FIRs the name of the detenu has been disclosed as
one of the accused persons. This is but obvious because the victim
from whose neck the chain is alleged to have been snatched would
not know the detenu and the other associates of the detenu. In each
of the FIRs, it has been stated by the victim that she would be in a
position to identify the accused persons if shown to her. We wonder
whether any identification parade was carried out by the police in this
direction? There is nothing to indicate in this regard from the materials
on record. It, prima facie, appears that the detenu might have been
picked up by the police on suspicion and then all that has been relied
upon to point a finger towards the detenu is his confessional statement
before the police. We are conscious of the fact that ordinarily the
court should not get into or look into the sufficiency of the materials
on record on the basis of which the requisite subjective satisfaction
is arrived at by the Detaining Authority. However, the facts of the
present case are such that we had to go into such issues.
34. The aforesaid gives rise to a neat question of law whether the
confessional statement made by a detenu to the police officer is
admissible in cases of detention under the Act 1986 or under any
other enactment of any State relating to preventive detention. We
do not propose to enter into any debate on this question as we have
not put the counsel appearing for the parties to notice on this issue.
We leave this question open to be looked into by this Court in any
other appropriate matter in future.
[2024] 3 S.C.R. 1213
Nenavath Bujji Etc. v. The State of Telangana and Ors.
i. Extraneous Considerations that weighed with the Detaining
Authority thereby vitiating the Order of Preventive Detention.
35. We take notice of the fact that in the case on hand, the Detaining
Authority has laid much stress on the fact that in the year 2023
in quick succession four FIRs came to be registered against the
appellant for the offence of theft, robbery etc. However, the Detaining
Authority took into consideration only two FIRs registered for the
offences said to have committed within his territorial jurisdiction.
The Detaining Authority in its order of detention has clearly stated
that he has taken into consideration only the two FIRs registered for
the alleged offence committed within his territorial jurisdiction. The
Detaining Authority in clear terms has stated that he could not have
made the other two FIRs referred to in the order of detention as the
basis for arriving at the subjective satisfaction that the activities of
the appellant detenu are prejudicial to the maintenance of the public
order. However, after saying so, the Detaining Authority has in so
many words stated that the other two FIRs have been considered
to look into the criminal history of the appellant detenu.
36. We are of the view that in the aforesaid context, the Detaining Authority
is not correct and he could be said to have taken into consideration
something extraneous.
37. In the case of Ameena Begum v. State of Telangana and Others
reported in (2023) 9 SCC 587, a two-Judge Bench of this Court
was confronted with almost an identical situation with which we are
dealing with. In Ameena Begum (supra) this Court while considering
whether there was proper application of mind to all the relevant
circumstances or whether consideration of extraneous factors had
vitiated the order of detention, observed thus:
“50. Considering past criminal history, which is proximate, by
itself would not render an order illegal. The Commissioner
in the detention order made pointed reference to the
detenu being a habitual offender by listing 10 (ten) criminal
proceedings in which the detenu was involved during the
years 2019-2020, consequent to which the detenu was
preventively detained under the Act vide order of detention
dated 4-3-2021, since quashed by the High Court by its
order dated 16-8-2021 [Hakeem Khan v. State of Telangana,
2021 SCC OnLine TS 3663]. It is then stated therein that
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the detenu had committed 9 (nine) offences in the years
2022-2023, and these offences are again listed out in
detail. However, the Commissioner states that the present
order of detention is based only on 5 (five) out of these 9
(nine) crimes, which are alleged to show that the detenu’s
activities are “prejudicial to the maintenance of public order,
apart from disturbing peace and tranquillity in the area”.
51. Interestingly, even in Para 9-E of his counter-affidavit,
the Commissioner has extracted a portion of the detention
order which we have set out in para 4. The reiteration
of considering past criminal history of the detenu is not
without its effect, as we shall presently discuss.
52. In Khudiram Das [Khudiram Das v. State of W.B., (1975)
2 SCC 81 : 1975 SCC (Cri) 435] , while examining the
“history sheet” of the detenu, this Court had, in express
terms, clarified that a generalisation could not be made that
the detenu was in the habit of committing those offences.
Merely because the detenu was charged for multiple
offences, it could not be said that he was in the habit of
committing such offences. Further, habituality of committing
offences cannot, in isolation, be taken as a basis of any
detention order; rather it has to be tested on the metrics
of “public order”, as discussed above. Therefore, cases
where such habituality has created any “public disorder”
could qualify as a ground to order detention.
53. Although the Commissioner sought to project that he
ordered detention based on the said 5 (five) FIRs, indication
of the past offences allegedly committed by the detenu in
the detention order having influenced his thought process is
clear. With the quashing of the order of detention dated 4-3-
2021 by the High Court and such direction having attained
finality, it defies logic why the Commissioner embarked
on an elaborate narration of past offences, which are not
relevant to the grounds of the present order of detention.
This is exactly what this Court in Khaja Bilal Ahmed [Khaja
Bilal Ahmed v. State of Telangana, (2020) 13 SCC 632 :
(2020) 4 SCC (Cri) 629] deprecated. Also, as noted above,
this Court in Shibban Lal Saksena [Shibban Lal Saksena
[2024] 3 S.C.R. 1215
Nenavath Bujji Etc. v. The State of Telangana and Ors.
v. State of U.P., (1953) 2 SCC 617 : AIR 1954 SC 179]
held that such an order would be a bad order, the reason
being that it could not be said in what manner and to what
extent the valid and invalid grounds operated on the mind
of the authority concerned and contributed to his subjective
satisfaction forming the basis of the order.”
(Emphasis supplied)
38. Ameena Begum (supra) has referred to and relied upon the decision
of this Court in Khaja Bilal Ahmed v. State of Telangana and
Others reported in (2020) 13 SCC 632. Khaja Bilal (supra) has been
authored by one of us (Hon’ble Chief Justice Dr. D.Y. Chandrachud).
The Court observed thus:
“23. In the present case, the order of detention states
that the fourteen cases were referred to demonstrate the
“antecedent criminal history and conduct of the appellant”.
The order of detention records that a “rowdy sheet” is being
maintained at PS Rain Bazar of Hyderabad City and the
appellant “could not mend his criminal way of life” and
continued to indulge in similar offences after being released
on bail. In the counter-affidavit filed before the High Court,
the detaining authority recorded that these cases were
“referred by way of his criminal background … (and) are
not relied upon”. The detaining authority stated that the
cases which were registered against the appellant between
2009 and 2016 “are not at all considered for passing the
detention order” and were “referred by way of his criminal
background only”. This averment is plainly contradictory.
The order of detention does, as a matter of fact, refer to
the criminal cases which were instituted between 2007
and 2016. In order to overcome the objection that these
cases are stale and do not provide a live link with the order
of detention, it was contended that they were not relied
on but were referred to only to indicate the antecedent
background of the detenu. If the pending cases were not
considered for passing the order of detention, it defies
logic as to why they were referred to in the first place
in the order of detention. The purpose of the Telangana
Offenders Act, 1986 is to prevent any person from acting
1216 [2024] 3 S.C.R.
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in a manner prejudicial to the maintenance of public order.
For this purpose, Section 3 prescribes that the detaining
authority must be satisfied that the person to be detained
is likely to indulge in illegal activities in the future and act
in a manner prejudicial to the maintenance of public order.
The satisfaction to be arrived at by the detaining authority
must not be based on irrelevant or invalid grounds. It must
be arrived at on the basis of relevant material; material
which is not stale and has a live link with the satisfaction
of the detaining authority. The order of detention may refer
to the previous criminal antecedents only if they have a
direct nexus or link with the immediate need to detain
an individual. If the previous criminal activities of the
appellant could indicate his tendency or inclination to act
in a manner prejudicial to the maintenance of public order,
then it may have a bearing on the subjective satisfaction
of the detaining authority. However, in the absence of a
clear indication of a causal connection, a mere reference
to the pending criminal cases cannot account for the
requirements of Section 3. It is not open to the detaining
authority to simply refer to stale incidents and hold them as
the basis of an order of detention. Such stale material will
have no bearing on the probability of the detenu engaging
in prejudicial activities in the future.”
(Emphasis supplied)
39. Ameena Begum (supra) has also referred to in para 53 of its judgment
to the decision of this Court in Shibban Lal Saksena v. State of
Uttar Pradesh and Others reported in (1953) 2 SCC 617, wherein
Justice B.K. Mukherjea speaking for the Bench observed as under:
“8. The first contention raised by the learned counsel raises,
however, a somewhat important point which requires careful
consideration. It has been repeatedly held by this Court
that the power to issue a detention order under Section 3
of the Preventive Detention Act depends entirely upon the
satisfaction of the appropriate authority specified in that
section. The sufficiency of the grounds upon which such
satisfaction purports to be based, provided they have a
rational probative value and are not extraneous to the scope
[2024] 3 S.C.R. 1217
Nenavath Bujji Etc. v. The State of Telangana and Ors.
or purpose of the legislative provision cannot be challenged
in a court of law, except on the ground of mala fides [State
of Bombay v. Atma Ram Shridhar Vaidya, 1951 SCC 43 :
1951 SCR 167] . A court of law is not even competent to
enquire into the truth or otherwise of the facts which are
mentioned as grounds of detention in the communication
to the detenue under Section 7 of the Act. What has
happened, however, in this case is somewhat peculiar. The
Government itself in its communication dated 13-3-1953,
has plainly admitted that one of the grounds upon which
the original order of detention was passed is unsubstantial
or non-existent and cannot be made a ground of detention.
The question is, whether in such circumstances the original
order made under Section 3(1)(a)of the Act can be allowed
to stand. The answer, in our opinion, can only be in the
negative. The detaining authority gave here two grounds
for detaining the petitioner. We can neither decide whether
these grounds are good or bad, nor can we attempt to
assess in what manner and to what extent each of these
grounds operated on the mind of the appropriate authority
and contributed to the creation of the satisfaction on the
basis of which the detention order was made. To say that
the other ground, which still remains, is quite sufficient
to sustain the order, would be to substitute an objective
judicial test for the subjective decision of the executive
authority which is against the legislative policy underlying
the statute. In such cases, we think, the position would be
the same as if one of these two grounds was irrelevant for
the purpose of the Act or was wholly illusory and this would
vitiate the detention order as a whole. This principle, which
was recognised by the Federal Court in Keshav Talpade
v. King Emperor [Keshav Talpade v. King Emperor, (1943)
5 FCR 88 : 1943 SCC OnLine FC 13] seems to us to be
quite sound and applicable to the facts of this case.”
(Emphasis supplied)
40. Thus, from the aforesaid, two propositions of law are discernible.
First, in the case on hand if the Detaining Authority thought fit to
eschew from its consideration the two FIRs registered outside his
territorial jurisdiction then he could not have made such FIRs as the
1218 [2024] 3 S.C.R.
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basis to arrive at the subjective satisfaction that the appellant detenu
is a history sheeter. Secondly, if at all the Detaining Authority wanted
to take into consideration the two FIRs registered with the police
station not falling within his territorial jurisdiction then he should have
recorded the subjective satisfaction that the incidence of the two FIRs
created “public disorder”. In other words, as observed by this Court
in Ameena Begum (supra) habituality of committing offence cannot,
in isolation, be taken as a basis of any detention order; rather it has
to be tested on the matrices of “public order”. It is only those cases
where such habituality has created disturbance of public order that
they could qualify as a ground to order detention.
41. The learned counsel appearing for the appellant detenu is also right
in his submission that if it is the case of the Detaining Authority that
there was no other option but to pass an order of preventive detention
as the appellant detenu came to be released by the regular criminal
courts on bail then the State should have gone for cancellation of bail.
Whenever, any accused is released on bail by any criminal court in
connection with any offence, whether specifically said so in the order
of bail while imposing conditions or not, it is implied that the bail is
granted on the condition that the accused shall not indulge in any such
offence or illegal activities in future. In some cases, courts do deem fit
to impose one of such conditions for the grant of bail. However, even in
those cases, where such a condition is not specifically imposed while
granting bail it is implied that if such accused after his release on bail
once again commits any offence or indulges in nefarious activities then
his bail is liable to be cancelled. In the case on hand, the State instead
of proceeding to pass an order of detention could have approached
the courts concerned for cancellation of the bail on the ground that
the appellant detenu had continued to indulge in nefarious activities
and many more FIRs have been registered against him.
42. In the aforesaid context, we may refer to the decision of this Court in
the case of Shaik Nazeen v. State of Telangana and Others reported
in (2023) 9 SCC 633, wherein in paras 11 and 19 respectively, this
Court observed as under:
“11. The detention order was challenged by the wife of
the detenu in a habeas corpus petition before the Division
Bench of the Telangana High Court. The ground taken by the
petitioner before the High Court was that reliance has been
[2024] 3 S.C.R. 1219
Nenavath Bujji Etc. v. The State of Telangana and Ors.
taken by the Authority of four cases of chain snatching, as
already mentioned above. The admitted position is that in all
these four cases the detenu has been released on bail by
the Magistrate. Moreover, in any case, the nature of crime
as alleged against the petitioner can at best be said to be
a law and order situation and not the public order situation,
which would have justified invoking the powers under the
preventive detention law. This, however did not find favour
with the Division Bench of the High Court, which dismissed
the petition, upholding the validity of the detention order.
xxx xxx xxx
19. In any case, the State is not without a remedy, as in
case the detenu is much a menace to the society as is
being alleged, then the prosecution should seek for the
cancellation of his bail and/or move an appeal to the Higher
Court. But definitely seeking shelter under the preventive
detention law is not the proper remedy under the facts
and circumstances of the case.”
(Emphasis supplied)
ii. Summary of the Findings.
43. We summarize our conclusions as under: -
(i) The Detaining Authority should take into consideration only
relevant and vital material to arrive at the requisite subjective
satisfaction,
(ii) It is an unwritten law, constitutional and administrative, that
wherever a decision-making function is entrusted to the
subjective satisfaction of the statutory functionary, there is an
implicit duty to apply his mind to the pertinent and proximate
matters and eschew those which are irrelevant & remote,
(iii) There can be no dispute about the settled proposition that the
detention order requires subjective satisfaction of the detaining
authority which, ordinarily, cannot be questioned by the court for
insufficiency of material. Nonetheless, if the detaining authority
does not consider relevant circumstances or considers wholly
unnecessary, immaterial and irrelevant circumstances, then
such subjective satisfaction would be vitiated,
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(iv) In quashing the order of detention, the Court does not sit in
judgment over the correctness of the subjective satisfaction. The
anxiety of the Court should be to ascertain as to whether the
decision-making process for reaching the subjective satisfaction
is based on objective facts or influenced by any caprice, malice
or irrelevant considerations or non-application of mind,
(v) While making a detention order, the authority should arrive at
a proper satisfaction which should be reflected clearly, and in
categorical terms, in the order of detention,
(vi) The satisfaction cannot be inferred by mere statement in the
order that “it was necessary to prevent the detenu from acting
in a manner prejudicial to the maintenance of public order”.
Rather the detaining authority will have to justify the detention
order from the material that existed before him and the process
of considering the said material should be reflected in the order
of detention while expressing its satisfaction,
(vii) Inability on the part of the state’s police machinery to tackle
the law and order situation should not be an excuse to invoke
the jurisdiction of preventive detention,
(viii) Justification for such an order should exist in the ground(s)
furnished to the detenu to reinforce the order of detention. It
cannot be explained by reason(s) / grounds(s) not furnished to
the detenu. The decision of the authority must be the natural
culmination of the application of mind to the relevant and material
facts available on the record, and
(ix) To arrive at a proper satisfaction warranting an order of
preventive detention, the detaining authority must, first examine
the material adduced against the prospective detenu to satisfy
itself whether his conduct or antecedent(s) reflect that he has
been acting in a manner prejudicial to the maintenance of public
order and, second, if the aforesaid satisfaction is arrived at, it
must further consider whether it is likely that the said person
would act in a manner prejudicial to the public order in near
future unless he is prevented from doing so by passing an
order of detention . For passing a detention order based on
subjective satisfaction, the answer of the aforesaid aspects and
points must be against the prospective detenu. The absence
[2024] 3 S.C.R. 1221
Nenavath Bujji Etc. v. The State of Telangana and Ors.
of application of mind to the pertinent and proximate material
and vital matters would show lack of statutory satisfaction on
the part of the detaining authority.
iii. The Saga Continues
44. We are dealing with a litigation arising from an order of preventive
detention passed by the State of Telangana under the provisions of
the Act 1986.
45. This is one more litigation going against the State of Telangana.
We remind the State of Telangana of what has been observed by
this Court in Mallada K. Sri Ram v. State of Telangana reported
in (2023) 13 SCC 537 in para 17:
“17. It is also relevant to note, that 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. We direct the respondents
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.”
46. Again, in one of the recent pronouncements of this Court in Ameena
Begum (supra), this Court referring to Mallada K. Sri Ram (supra)
observed in para 65 as under:
“65. Interference by this Court with orders of detention,
routinely issued under the Act, seems to continue unabated.
Even after Mallada K. Sri Ram [Mallada K. Sri Ram v. State
of Telangana, (2023) 13 SCC 537 : 2022 SCC OnLine
SC 424] , in another decision of fairly recent origin in Sk.
Nazneen v. State of Telangana [Sk. Nazneen v. State of
Telangana, (2023) 9 SCC 633] , this Court set aside the
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impugned order of detention dated 28-10-2021 holding
that seeking shelter under preventive detention law was
not the proper remedy.”
47. We hope that the State of Telangana takes what has fallen from
this Court very seriously and sees to it that the orders of preventive
detention are not passed in a routine manner without any application
of mind.
48. We hope that the State of Telangana does not give any good reason
once again to this Court to observe anything further.
iv. Role of the Advisory Board
49. At this stage, it is also apposite to mention that in such scenarios
as discussed above, where orders of preventive detention are being
passed by the Detaining Authority in a routine and mechanical
manner, the role and duty of the Advisory Board(s) becomes all
the more imperative to put a check on such capricious exercise of
powers and ensure that a bright-line is drawn whereby such illegal
detentions are nipped in the bud and the detenu released forthwith.
50. Advisory Board(s) under preventive detention legislations, are not a
superficial creation but one of the primary constitutional safeguards
available to the detenu against an order of detention. Article 22(4)
mandates that, any law pertaining to preventive detention must
provide for constitution of an Advisory Board consisting of persons
who have been or qualified to be appointed as judges of the High
Court. It further vests the Advisory Board with the pivotal role of
reviewing an order of detention within three-months by forming an
opinion as to whether there is a sufficient cause for such detention
or not, after consideration of all the material on record including
representation if any, of the detenu.
51. In Telangana also, under the Act, 1986, Section 9 gives expression
to this constitutional requirement, and provides for the constitution
and composition of an Advisory Board for the purposes of the Act,
the relevant provision reads as under: -
“9. Constitution of Advisory Boards.
(1) The Government shall, whenever necessary,
constitute one or more Advisory Boards for the
purposes of this Act.
[2024] 3 S.C.R. 1223
Nenavath Bujji Etc. v. The State of Telangana and Ors.
(2) Every such Board shall consist of a Chairman and
two other members, who are, or have been Judges
or are qualified to be appointed as Judges of a High
Court.”
52. Section 10 of the Act, 1986 provides for the reference and review of
an order of detention passed under the Act by the Advisory Board.
It states that any order of detention that has been made under the
Act shall be placed before an Advisory Board thereunder within
three-weeks from the date of its passing, along with the grounds on
which such an order was made, the representation of the detenu
if any, and the report of the officer empowered under the Act. The
relevant provision reads as under: -
“10. Reference to Advisory Boards.
In every case where a detention order has been made
under this Act, the Government shall within three weeks
from the date of detention of a person under the order,
place before the Advisory Board constituted by them under
section 9, the grounds on which the order has been made
and the representation, if any, made by the person affected
by the order, and in the case where the order has been
made by an officer, also the report by such officer under
sub-section (3) of section 3.”
53. Section 11 of the Act, 1986 delineates the function to be
discharged and the procedure to be adopted by the Advisory
Board. It inter-alia states that the Advisory Board must form
an opinion and specify as to whether there is sufficient cause
warranting the detention of the detenu. The Advisory Board has
to form this opinion by considering all the materials placed before
it in terms of Section 10 of the Act, 1986. Section 11 further
empowers the Advisory Board to call for any other information
or to hear the detenu, wherever necessary so as to ascertain
the sufficiency of cause for preventive detention. The relevant
provision reads as under: -
“11. Procedure of Advisory Boards.
(1) The Advisory Board shall, after considering the
materials placed before it and, after calling for such
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further information as it may deem necessary from
the Government or from any person called for the
purpose through the Government or from the person
concerned, and if, in any particular case, the Advisory
Board considers it essential so to do or if the person
concerned desires to be heard, after hearing him in
person, submit its report to the Government within
seven weeks from the date of detention of the person
concerned.
(2) The report of the Advisory Board shall specify in a
separate part thereof the opinion of the Advisory
Board as to whether or not there is sufficient cause
for the detention of the person concerned.
(3) When there is a difference of opinion among the
members forming the Advisory Board, the opinion
of the majority of such members shall be deemed
to be the opinion of the Board.
(4) The proceedings of the Advisory Board and its report,
excepting that part of the report in which the opinion of
the Advisory Board is specified, shall be confidential.
(5) Nothing in this section shall entitle any person against
whom a detention order has been made to appear by
any legal practitioner in any matter connected with
the reference to the Advisory Board.”
54. Section 12 of the Act, 1986 provides that where the Advisory Board
in its report is of the opinion that sufficient cause exists warranting
detention, the Government may confirm the detention i.e., it gives
the appropriate Government the discretion to either confirm or revoke
the order of detention. But where the Advisory Board in its report is
of the opinion that no sufficient cause exists for the detention of the
detenu, the same is binding on the Government, and the detenu is
forthwith required to be released. The relevant observations read
as under: -
“12. Action upon report of Advisory Board.
(1) In any case where the Advisory Board has reported
that there is, in its opinion, sufficient cause for the
[2024] 3 S.C.R. 1225
Nenavath Bujji Etc. v. The State of Telangana and Ors.
detention of a person, the Government may confirm
the detention order and continue the detention of the
person concerned for such period, not exceeding
the maximum period specified in section 13 as they
think fit.
(2) In any case, where the Advisory Board has reported
that there is, in its opinion, no sufficient cause for the
detention of the person concerned, the Government
shall revoke the detention order and cause the person
to be released forthwith.
55. What can be discerned from a bare perusal of the abovementioned
provisions is that the Advisory Board performs the most vital duty
of independently reviewing the detention order, after considering
all the materials placed before it, or any other material which it
deems necessary. When reviewing the detention order along with
the relevant materials, the Advisory Board must form an opinion as
to the sufficiency of the cause for warranting detention. An order of
detention passed under the Act, 1986 can only be confirmed if the
Advisory Board is of the opinion that there exists sufficient cause
for the detention of the detenu.
56. The framers of the Constitution being in seisin of the draconian
nature of an order of preventive detention and its adverse impact
on individual liberty, have specifically put in place safeguards within
Article 22 through the creation of an Advisory Board, to ensure that
any order of preventive detention is only confirmed upon the evaluation
and scrutiny of an independent authority which determines and finds
that such an order for detention is necessary.
57. The legislature in its wisdom has thought it fit, to entrust the
Advisory Board and no one else, not even the Government, with
the performance of this crucial and critical function which ultimately
culminates into either the confirmation or revocation of a detention
order. The Advisory Board setup under any preventive detention law
in order to form its opinion is required to; (i) consider the material
placed before it; (ii) to call for further information, if deemed necessary;
(iii) to hear the detenu, if he desires to be heard and; (iv) to submit
a report in writing as to whether there is sufficient cause for “such
detention” or whether the detention is justified.
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58. An Advisory Board is not a mere rubber-stamping authority for an
order of preventive detention. Whenever any order of detention is
placed before it for review, it must play an active role in ascertaining
whether the detention is justified under the law or not. Where it
finds that such order of detention is against the spirit of the Act or in
contravention of the law as laid down by the courts, it can definitely
opine that the order of detention is not sustainable and should not
shy away from expressing the same in its report.
59. As stated by us above, preventive detention being a draconian
measure, any order of detention as a result of a capricious or
routine exercise of powers must be nipped in the bud. It must
be struck down at the first available threshold and as such, it
should be the Advisory Board that must take into consideration
all aspects not just the subjective satisfaction of the detaining
authorities but whether such satisfaction justifies detention of the
detenu. The Advisory Board must consider whether the detention
is necessary not just in the eyes of the detaining authority but
also in the eyes of law.
60. The requirement of having persons who have been or are qualified
to be High Court judges in the Advisory Board is not an empty
formality, it is there to ensure that, an order of detention is put to
robust scrutiny and examined as it would have been by any ordinary
court of law. Otherwise, the purpose of independent scrutiny could
very well have been served by having any independent persons,
and there would have been no need to have High Court judges or
their equivalent. Thus, it is imperative that whenever an order of
detention is placed before an Advisory Board, it duly considers each
and every aspect, not just those confined to the satisfaction of the
detaining authority but the overall legality as per the law that has
been laid down by this court.
61. An Advisory Board whilst dispensing its function of ascertaining
the existence of a “sufficient cause” for detention, cannot keep
itself unconcerned or oblivious to the developments that have
taken place by a plethora of decisions of this Court delineating the
criterion required to be fulfilled for passing an order of detention.
The “independent scrutiny” as envisaged by Article 22 includes
ascertaining whether the detention order would withstand the scrutiny
a court of law.
[2024] 3 S.C.R. 1227
Nenavath Bujji Etc. v. The State of Telangana and Ors.
62. We fail to understand what other purpose the Advisory Board
encompassing High Court judges or their equivalent as members
would serve, if the extent of their scrutiny of the order of detention is
confined just to the subjective satisfaction of the detaining authority.
The entire purpose behind creation of an Advisory Board is to ensure
that no person is mechanically or illegally sent to preventive detention.
In such circumstances, the Advisory Boards are expected to play
a proactive role. The Advisory Board is a constitutional safeguard
and a statutory authority. It functions as a safety valve between the
detaining authority and the State on one hand and the rights of the
detenu on the other. The Advisory Board should not just mechanically
proceed to approve detention orders but is required to keep in mind
the mandate contained in Article 22(4) of the Constitution of India.
63. Thus, an Advisory Board setup under a preventive detention legislation
is required to undertake a proper and thorough scrutiny of an order
of detention placed before it, by appreciating all aspects and angles
before expressing any definite opinion in its report.
F. CONCLUSION
64. In the result, this appeal succeeds and is hereby allowed. The
impugned judgment and order passed by the High Court is set
aside. Consequently, the order of detention is also quashed and set
aside. The appellant detenu be set at liberty forthwith if not required
in any other case.
65. The connected Criminal Appeal No. ............. of 2024 @ SLP (Cri)
No. 3391 of 2024 of the co-detenu is also allowed for the very same
reasons and is disposed of in the aforesaid terms. The order of
detention passed against the co-detenu also stands quashed and set
aside. He be set at liberty forthwith if not required in any other case.
66. The Registry shall forward one copy each of this judgment to the
Chief Secretary and the Principal Home Secretary of the State of
Telangana at the earliest.
67. Pending application(s) if any shall stand disposed of.
Headnotes prepared by: Nidhi Jain Result of the case:
Appeals allowed.
