The Supreme Court recently comprising of a Division Bench of Justices R F Nariman and Hrishikesh Roy while quashing the detention of a man under the Telangana Prevention of Dangerous Activities Act, 1986, observed that a possible apprehension of breach of law and order cannot be a ground to detain a person under Preventive Detention Laws. (Banka Sneha Sheela vs. State of Telangana)
The bench stated 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.
Facts of the case
This appeal arise out of a judgement 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 Sections 420, 406 and 506 i.e cheating, criminal breach of trust and criminal intimidation respectively 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 offences, which would again certainly affect public order.
Contention of the Parties
The counsel appearing on behalf of the Petitioner has raised three points. Firstly, he said there is no proximate or live connection between the acts complained of and the date of the Detention Order, as the last act that was complained of, which is discernible from the first 3 FIRs [FIRs dated 12.12.2019, 12.12.2019 and 14.12.2019], was in December 2019 whereas the Detention Order was passed 9 months later on 28.09.2020.
Secondly, without conceding, that at best only a ‘law and order’ problem if at all would arise on the facts of these cases and not a ‘public order’ problem, and referred to certain judgments of this court to buttress the same.
Thirdly, the Detention Order was totally perverse in that it was passed only because anticipatory bail/bail applications were granted. The correct course of action would have been for the State to move to cancel the bail that has been granted if any further untoward incident were to take place.
The counsel appearing on behalf of the State of Telangana, reiterated the grounds contained in the Detention Order and argued that the Detenu was a habitual fraudster who had therefore created fear amongst the gullible public, and since he was likely to commit similar offences in future, it was important to preventively detain him, as the ordinary law had no deterrent effect on him.
Further, there is no doubt that he had infringed ‘public order’ as defined by the Telangana Prevention of Dangerous Activities Act and had disturbed the even tempo of life of persons who were cheated by him and were likely to be cheated by him.
Courts observation & Judgment
The court noted that public order is defined in the Explanation to Section 2(a) of the Telangana Prevention of Dangerous Activities Act to be a harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave widespread danger to life or public health. The bench observed that the expressions 'law and order', 'public order', and 'security of state' are different from one another.
The bench noted, "There can be no doubt that for 'public order' to be disturbed, there must in turn be public disorder. 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…
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 13 ascribed to the Detenu which are punishable under the three sections of the Indian Penal Code set out in the five FIRs. A close reading of the Detention Order would make it clear that the reason for the said Order is not any apprehension of widespread public harm, danger or alarm but is only because the Detenu was successful in obtaining anticipatory bail/bail from the Courts in each of the five FIRs. If a person is granted anticipatory bail/bail wrongly, there are well-known remedies in the ordinary law to take care of the situation. The State can always appeal against the bail order granted and/or apply for cancellation of bail. The mere successful obtaining of anticipatory bail/bail orders being the real ground for detaining the Detenu, there can be no doubt that the harm, danger or alarm or feeling of security among the general public spoken of in Section 2(a) of the Telangana Prevention of Dangerous Activities Act is make believe and totally absent in the facts of the present case."
The bench referring to observations made in the case of Madhu Limaye v. Sub-Divisional Magistrate [AIR 1971 SC 2486] observed that preventive detention is a necessary evil only to prevent public disorder.
It said: “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. The reason for not adopting a narrow meaning of 'public order' in that case was because of the expression "in the interests of" which occurs to Article 19(2) to 19(4) and which is pressed into service only when a law is challenged as being unconstitutional for being violative of Article 19 of the Constitution. When a person is preventively detained, it is Article 21 and 22 that are attracted and not Article 19. Further, preventive detention must fall within the four corners of Article 21 read with Article 22 and the statute in question. To therefore argue that a liberal meaning must be given to the expression 'public order' in the context of a preventive detention statute is wholly inapposite 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 a harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large.”
The bench allowing the appeal and quashing the detention 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. 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.”
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