DATE OF JUDGEMENT
2nd August 2021
JUDGES
Justice R.F Nariman
Justice Hrishikesh Roy
PARTIES
Banka Sneha Sheela........................ (Appellant)
The State of Telengana & Ors............(Respondent)
SUBJECT
Preventive detention, the dreaded power of the state to restrain a person without trial, can be used only to prevent public disorder.
AN OVERVIEW
- The detainee was a stock market trader with five criminal cases filed against him and he had been granted anticipatory bail/bail in all the FIRs.
- The detention order had passed by the Telangana High Court against the detenue on the ground that he was indulged in the acts of White Collar offences by committing offences such as cheating of Rs. 50 lakh.
- After the detention order, the representation was made by the petitioner. The Advisory Board, after considering the representation, found there was sufficient cause to continue the detention order. The detention was confirmed and the period of detention was directed to be for a period of one year.
- The wife of the detenue challenged this order before the High Court, and the same was rejected.
- The appeal has been filed by the Petitioner’s wife against the judgement passed by the High Court of Telangana, by which a writ petition was filed by the petitioner challenging the preventive detention order.
IMPORTANT PROVISIONS
Telangana Prevention of Dangerous Activities Act :
• Explanation Section 2(a): Definition of “public order”
It suggests that an act is said to be disruptive of public order when that act proves to be a harm, danger, or alarm or feeling of insecurity among the general public or any section thereof, or a grave widespread danger to life or public health.
Indian Penal Code,1860
• Section 420:Cheating and dishonestly inducing delivery of property.
Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
• Section 406: Punishment for criminal breach of trust.
Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
• Section 506: Punishment for criminal intimidation.
Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If the threat is to cause death or grievous hurt, etc.—And if the threat is to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Constitution of India
• 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.
• Article 22: Protection against arrest and detention in certain cases.
ISSUES
- Whether the detention order was violative under Article 21 of the Indian Constitution?
- Whether the public order mentioned in the Telangana Prevention of Dangerous Activities Act is availed in the detention order?
ANALYSIS OF THE JUDGEMENT
- The Bench had observed that preventive detention must fall within the four corners of Article 21 (due process of law) read with Article 22 (safeguard against arbitrary arrest and detention) and the statute in question.
- The 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 right of liberty won by our founding fathers will become nugatory.
- The Court, while referring to the judgement of Madhu Limaye v. Sub-Divisional Magistrate, had stated that prevention detention is a necessary evil; it is to be used only to prevent public disorder.
- The Court must ensure that the facts brought before it directly or inevitably lead to harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large.
- The Bench also noted that the expressions “law and order” and “public order” and “security of the state” are different from one another. The explanation of public order given under the Telangana Prevention of Dangerous Activities Act mentioned it must affect the community or public at large.
- The Court clarified mere contravention of law, such as indulging in cheating or criminal breach of trust, certainly affects “law and order” but it can be said to affect public order, it must affect the community or the public at large.
- The Bench also noted, after a close reading of the detention order, that the reason for the said order is not any apprehension of the effect on the community or public at large but because the detenue was successful obtained the anticipatory bail/bail from the courts in each of the five FIRs.
- The Court had said that, if a person is granted anticipatory bail/bail wrongly, the remedies availed to the State can always appeal against the bail order or apply for cancellation for bail. But merely the successful bail orders cannot be the real ground for detaining the detenue.
- In the present case, the definition of public order mentioned in the Act was absent. The Court had allowed the appeal and quashing the detention.
CONCLUSION
The Court had allowed the appeal for quashing the detention. While allowing the appeal, the Court had mentioned that a detention order certainly cannot provide the springboard to move under the preventive detention statute. The impugned judgement is set aside and the detenue was ordered to be freed.
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