Supreme Court Explains: Circumstances when Preventive Detention can be ordered, Read Judgment

The Supreme Court has held that mere apprehension of a breach of law and order is not sufficient to order "preventive detention."

The Division-Bench of Justice DY Chandrachud and Justice Surya Kant while dealing with a Criminal Appeal threw light on situations that attract provisions for "maintenance of public order."

Brief Facts of the Case

The detenu herein who is the brother of the appellant was working as an employee when a complaint was lodged agaisnt him on behalf of the emloyer-company alleging that he with another employee at the Company, had opened a salary account without authorization and in conspiracy with the detenu collected an amount of ₹85 lakhs from 450 job aspirants.

It was alleged that the coaccused who was in charge of the HR Department at the Company had, in collusion with the detenu, hatched a plan to collect money from individuals by misrepresenting that they would be given a job at the Company and collected money from aspirants for opening a bank account and supplying uniforms.

Subsequently, FIR was lodged and in further development consequently, a detention order was passed against the detenu on 19 May 2021 under the provisions of Section 3(2) of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act 19864. The order of detention was challenged before the High Court in a petition under Article 226 of the Constitution. The Division Bench of the High Court dismissed the petition by its impugned judgment and order dated 25 January 2022.

Submissions

Senior Counsel for the appellant, submitted that there is ex facie, non-application of mind by the detaining authority while passing the order of detention which evident from the fact that the detenu had been granted bail almost five months prior to the order of detention.

Submitting that the grant of bail was subject to the condition that the detenu would report to the SHO of the police station concerned, in the first case, until the charge-sheet was filed and, in the second case, for a period of three months on stipulated days of the week, he pointed out that in the first case, the charge-sheet was submitted prior to the date of the order of detention. On this premises, he submitted that the very basis of the order of detention stands vitiated since it will be apparent from the condition which was imposed by the Court while granting bail that the detenu was required to attend the Police Station concerned throughout the stipulated period and even that period came to an end by the time the order of detention was passed.

He further contended that whereas the order of detention has proceeded on the basis that the acts of the detenu had created a situation leading to a breach of public order in the case, on the other hand, it is evident from the counter affidavit which has been filed by the Commissioner before the High Court that there was only an apprehension that there would be a likelihood of a breach of public order in the future. It was submitted that it is evident from the recording of facts that the order of detention was passed nearly seven and five months after both the criminal cases were instituted.

Averring that detention was based on stale material, he argued that course of criminal law would be sufficient to deal with the alleged violation and on the above facts, the detention of the detenu is based on no cogent material whatsoever.

Counsel for the respondents submitted that the nature of the acts which are attributed to the detenu are a part of a series of organized activities involving white collar crime where job aspirants were allured into parting with their money on the promise that they would get employment in the future.

Supreme Court's Analysis

The Court reiterated the provisions related to Preventive Detention and at the outset noted that the detenu is a ‘whitecollar offender’ under Section 2(x) of the Telangana Act of 1986 whose offence of cheating gullible job aspirants has been causing “large scale fear and panic among the gullible unemployed job aspirants/youth and thus he has been acting in a manner prejudicial to the maintenance of public order apart from disturbing the peace, tranquillity and social harmony in the society”.

In addition to the above allegation, it was also apprehended that “he may violate the bail conditions and there is an imminent possibility of his committing similar offences, which would be detrimental to public order, unless he is prevented from doing so by an appropriate order of detention."

The Court accepted contention of the Senior Counsel for the appellant and observed that the order of detention has failed to advert to material aspects and suffers from a non-application of mind. It stated that the detention order records that the detenu had moved bail applications in two cases in which he was in judicial custody and that the Magistrate had granted him conditional bail. The Court took note of the fact that it was apprehended that he may violate the bail conditions while committing similar offences and pointed out that it is pertinent to note that no application for cancellation of bail was moved by the investigating authorities for violation of the bail conditions.

It went on to note that the order of detention was passed nearly seven months after the registration of the first FIR and about five months after the registration of the second FIR. The order of detention is evidently based on stale material and demonstrates non-application of mind on the part of the detaining authority to the fact that the conditions which were imposed on the detenu, while granting bail, were duly fulfilled and there was no incidence of a further violation.

In addition to the above allegation, it was also apprehended that “he may violate the bail conditions and there is an imminent possibility of his committing similar offences, which would be detrimental to public order, unless he is prevented from doing so by an appropriate order of detention."

The Court accepted contention of the Senior Counsel for the appellant and observed that the order of detention has failed to advert to material aspects and suffers from a non-application of mind. It stated that the detention order records that the detenu had moved bail applications in two cases in which he was in judicial custody and that the Magistrate had granted him conditional bail. The Court took note of the fact that it was apprehended that he may violate the bail conditions while committing similar offences and pointed out that it is pertinent to note that no application for cancellation of bail was moved by the investigating authorities for violation of the bail conditions.

It went on to note that the order of detention was passed nearly seven months after the registration of the first FIR and about five months after the registration of the second FIR. The order of detention is evidently based on stale material and demonstrates non-application of mind on the part of the detaining authority to the fact that the conditions which were imposed on the detenu, while granting bail, were duly fulfilled and there was no incidence of a further violation.

It further mentioned Banka Sneha Sheela Vs. State of Telangana, 2021 Latest Caselaw 301 SC wherein a two-judge Bench of this Court examined a similar factual situation of an alleged offence of cheating gullible persons as a ground for preventive detention under the Telangana Act of 1986 and Court held that while such an apprehension may be a ground for considering the cancellation of bail to an accused, it cannot meet the standards prescribed for preventive detention unless there is a demonstrable threat to the maintenance of public order.

The Court also threw light on Sama Aruna Vs. State of Telangana and ANR, 2017 Latest Caselaw 398 SC wherein a two-judge Bench examined a case where stale materials were relied upon by the detaining authority under the Telangana Act of 1986.

"The order of detention pertained to incidents which had occurred between nine and fourteen years earlier in relation to offences involving a criminal conspiracy, cheating, kidnapping and extortion. This Court held that a preventive detention order that is passed without examining a live and proximate link between the event and the detention is tantamount to punishment without trial."

Conclusion

The Court noted:

"A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the “maintenance of public order”. In this case, the apprehension of a disturbance to public order owing to a crime that was reported over seven months prior to the detention order has no basis in fact. The apprehension of an adverse impact to public order is a mere surmise of the detaining authority, especially when there have been no reports of unrest since the detenu was released on bail on 8 January 2021 and detained with effect from 26 June 2021."

It added that the nature of the allegations against the detenu are grave, however the personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding.

"'The powers of preventive detention are exceptional and even draconian. Tracing their origin to the colonial era, they have been continued with strict constitutional safeguards against abuse. Article 22 of the Constitution was specifically inserted and extensively debated in the Constituent Assembly to ensure that the exceptional powers of preventive detention do not devolve into a draconian and arbitrary exercise of state authority. The case at hand is a clear example of non-application of mind to material circumstances having a bearing on the subjective satisfaction of the detaining authority. The two FIRs which were registered against the detenu are capable of being dealt by the ordinary course of criminal law.

Conclusion

The Court noted:

"A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the “maintenance of public order”. In this case, the apprehension of a disturbance to public order owing to a crime that was reported over seven months prior to the detention order has no basis in fact. The apprehension of an adverse impact to public order is a mere surmise of the detaining authority, especially when there have been no reports of unrest since the detenu was released on bail on 8 January 2021 and detained with effect from 26 June 2021."

It added that the nature of the allegations against the detenu are grave, however the personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding.

"'The powers of preventive detention are exceptional and even draconian. Tracing their origin to the colonial era, they have been continued with strict constitutional safeguards against abuse. Article 22 of the Constitution was specifically inserted and extensively debated in the Constituent Assembly to ensure that the exceptional powers of preventive detention do not devolve into a draconian and arbitrary exercise of state authority. The case at hand is a clear example of non-application of mind to material circumstances having a bearing on the subjective satisfaction of the detaining authority. The two FIRs which were registered against the detenu are capable of being dealt by the ordinary course of criminal law."

The Court remarked liberty of the citizen cannot be left to the lethargy of and the delays on the part of the state and refrred to ARNAB MANORANJAN GOSWAMI vs STATE OF MAHARASHTRA, 2020 Latest Caselaw 623 SC a two-judge Bench of this Court has held that while the ordinary procedural hierarchy among courts must be respected, the High Court’s writ jurisdiction under Article 226 extends to protecting the personal liberty of persons who have demonstrated that the instrumentality of the State is being weaponised for using the force of criminal law.