Preventive Detention Cannot Be Ordered Merely Because A Person Is Implicated In A Criminal Proceeding
The Supreme Court observed that preventive detention cannot be ordered merely because a person is implicated in a criminal proceeding.
“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”“, the bench comprising Justices DY Chandrachud and Surya Kant observed while quashing a detention order.
In this case, an order of detention 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 1986.
The order of detention noted that the detenu is a ‘white collar offender’ 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”. The order also noted two FIRs registered against the detenu.
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.
In appeal, the bench noted 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 court, therefore, observed:
“A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the “maintenance of public order”. In this case, the apprehension of a disturbance to public order owing to a crime that was reported over seven months prior to the detention order has no basis in fact. The apprehension of an adverse impact to public order is a mere surmise of the detaining authority, especially when there have been no reports of unrest since the detenu was released on bail on 8 January 2021 and detained with effect from 26 June 2021. The nature of the allegations against the detenu are grave.”
The bench observed that the two FIRs which were registered against the detenu are capable of being dealt by the ordinary course of criminal law. The court further observed:
“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. “
Callous exercise of the exceptional power of preventive detention
The court also noted that in last five years, it 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.”, the bench added.