Courts Update Can’t allow preventive detention on fears of detenu affecting...

Can’t allow preventive detention on fears of detenu affecting public order: Supreme Court

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New Delhi Aug 3(ILNS): The Supreme Court has quashed the detention of a man under the Telangana Prevention of Dangerous Activities Act, 1986 while stating that to invoke a public detention law against someone, it is not enough that his/her actions pose a threat to law and order, but the actions must affect the public order.

The Division Bench comprising of Justice R F Nariman and Justice Hrishikesh Roy allowed an appeal to arise out of a judgment dated March 31, 2021, passed by the High Court for the State of Telangana at Hyderabad, by which a Writ Petition filed by the petitioner challenging a Preventive Detention Order passed against the Petitioner’s husband 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  was dismissed.

Banka Ravikanth has been in detention under the Telangana Prevention of Dangerous Activities Act 1986 on orders of the Cyberabad police commissioner in September 2020 after he secured bail in five criminal cases accusing him of cheating, criminal breach of trust, and criminal intimidation under the IPC. The Telangana police are of the apprehension that Banka Ravikanth’s detention was ordered because there was every possibility that he would commit similar offenses, which would again certainly affect public order.

Advocate Gaurav Agarwal, appearing for the petitioner, contended that the order was perverse as it was passed only because anticipatory bail was granted to the accused. The correct course of action would have been for the state to move to cancel the bail, he said.

Senior advocate Ranjit Kumar, appearing for the state, said the detenu had created fear among the gullible public, and since he was likely to commit similar offenses in the future, it was important to preventively detain, as the ordinary law had no deterrent effect on him.

“Preventive detention is a necessary evil only to prevent public disorder. The court must ensure that the facts brought before it directly and inevitably lead to harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large,” the Court observed.

The Bench further observed that mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects ‘law and order’ but before it can be said to affect ‘public order, it must affect the community or the public at large.

The court said, “It is clear that at the highest, a possible apprehension of breach of law and order can be said to be made out if it is apprehended that the Detenu, if set free, will continue to cheat gullible persons. This may be a good ground to appeal against the bail orders granted and/or to cancel bail but certainly cannot provide the springboard to move under a preventive detention statute.

“Liberty of a citizen is a most important right won by our forefathers after long, historical and arduous struggles…We must confine the power of preventive detention to very narrow limits, otherwise, the great right to liberty won by our Founding Fathers, who were also freedom fighters, after long, arduous, and historical struggles, will become nugatory,” the court further noted.

The bench said that “Further, preventive detention must fall within the four corners of Article 21 (protection of life and liberty) read with Article 22 and the statute in question. To therefore argue that a literal meaning must be given to the expression ‘public order’ in the context of a preventive detention statute is wholly inappropriate and incorrect.” “On the contrary, considering that preventive detention is a necessary evil only to prevent public disorder, the court must ensure that the facts brought before it directly and inevitably lead to harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large”.

The Apex Court, while referring to earlier verdicts of the court in Madhu Limaye case of 1970, on the interpretation of ‘public order” said that “to tear these observations out of context would be fraught with great danger when it comes to the liberty of a citizen under Article 21 of the Constitution of India”.

“There can be no doubt that what is alleged in the five FIRs pertain to the realm of ‘law and order” in that various acts of cheating are ascribed to the detenu which are punishable under the three sections of the Indian Penal Code set out in the five FIRs,” it said.

The Supreme Court said the State should have contested the bail order in a higher court rather than slap an Executive order of preventive detention on him on the ground that, if set free, he would cheat more people.

Top Court relied on In Yumman Ongbi Lembi Leima v. State of Manipur (2012) 2 SCC 176, in which the Supreme  Court specifically adverted to when a preventive detention order would be bad, as recourse to the ordinary law would be sufficient in the facts of a given case, with particular regard being had to bail having been granted.

“On the facts of this case, as has been pointed out by us, it is clear that at the highest, a possible apprehension of breach of law and order can be said to be made out if it is apprehended that the Detenu, if set free, will continue to cheat gullible persons. This may be a good ground to appeal against the bail orders granted and/or to cancel bail but certainly cannot provide the springboard to move under a preventive detention statute. We, therefore, quash the detention order on this ground. Consequently, it is unnecessary to go into any of the other grounds argued by the learned counsel on behalf of the Petitioner. The impugned judgment is set aside and the Detenu is ordered to be freed forthwith. Accordingly, the appeal is allowed”, the order reads./ILNS/SS/SV/SNG

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