As per the case facts, a detention order was issued against the appellant's husband under the Telangana Prevention of Dangerous Activities Act, based on alleged repeated criminal activities, including selling ...
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2023INSC788 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO………… OF 2023
[ARISING OUT OF SLP ( CRIMINAL) NO. 8510 OF 2023]
AMEENA BEGUM …APPELLANT
VS.
THE STATE OF TELANGANA & ORS. …RESPONDENT S
J U D G M E N T
DIPANKAR DATTA, J.
Leave granted.
THE JUDGMENT UNDER CHALLENGE
2. Under assail in this appeal is a judgment and order dated 28
th
June,
2023 of a Division Bench of the High Court for the State of Telangana
(“High Court”, hereafter). Vide the impugned judgment, a writ petition
1
instituted by the appellant seeking a writ of habeas corpus was
dismissed and the order of detention dated 24
th
March, 2023
1
W.P. No.9000 of 2023
2
(“Detention Order”, hereafter) of the appellant’s husband (“Detenu”,
hereafter), impugned therein, upheld.
THE ORDER OF DETENTION AND FURTHER PROCEEDINGS
3. The Commissioner of Police, Hyderabad City (“Commissioner”,
hereafter) passed the Detention Order against the Detenu 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, F ake
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 Act”, hereafter). Perusal of the
Detention Order reveals that the Detenu earlier suffered an order of
detention dated 4
th
March, 2021 under the category of “White Collar
Offender”; however, pursuant to an order of the High Court dated 16
th
August, 2021 in writ proceedings instituted by his father
2
, the Detenu
was released from detention on 17
th
August, 2021; that even after such
release, the Detenu did not mend his habitual nature of committing
crimes and in the recent past (during 2022 and 2023), in quick
succession, had committed 9 (nine) more offences within the limits of
Hyderabad Police Commissionerate, as listed therein; that out of such
2
W.P. No.12321 of 2021
3
9 (nine) offences, 5 (five) FIRs
3
had been taken into consideration; and
that on examination of the material placed before him , the
Commissioner was satisfied that the Detenu was “habitually
committing the offences including outraging the modesty of
women, cheating, extortion, obstructing the public servants
from discharging their legitimate duties, robbery and criminal
intimidation along with his associates in an organized manner
in the limits of … and he is a ‘Goonda’ as defined in clause (g) of
Section 2” of the Act (bold in original). The Commissioner, with a view
to prevent the Detenu from acting in a manner prejudicial to
maintenance of public order, recorded not only his satisfaction for
invoking the provisions of the Act but also recorded a satisfaction that
“the ordinary law under which he was booked is not sufficient to deal
with the illegal activities of such an offender who has no regard for the
society. Hence, unless he is detained under the detention laws, his
unlawful activities cannot be curbed”. After referring to the bail
petitions filed by the Detenu in Cr.No.18/2023 of Golconda PS and
Cr.No.35/2023 of Falaknuma PS and bail having been granted despite
suitable counters filed by the prosecution resulting in the Detenu’s
release from jail, the Commissioner observed as follows:
“As seen from his past criminal history , background and
antecedents and also his habitual nature of committing crimes one
3
(i) FIR No. 227/2022 dated 28.07.2022 for offences under Sections 186, 189, 353, 504, 506,
IPC; (ii) FIR No. 262/2022 dated 10.10.2022 for offences under Sections 420, 384, 506 r/w
34, IPC; (iii) FIR No. 338/2022 dated 12.10.2022 for offences under Sections 354, 420, 323,
506 r/w 34, IPC; (iv) FIR No. 18/2023 dated 21.01.2023 for offences under Sections 506,
420, 406 r/w 34, IPC; and (v) FIR No. 35/2023 dated 08.02.2023 for offences under Sections
392, 195A, IPC.
4
after the other and his efforts to come out of the prison, I strongly
believe that if such a habitual criminal is set free, his activities
would not be safe to the society and there is an imminent
possibility of his committing similar offences by violating the bail
conditions in one of the cases which would be detrimental to public
order, unless he is preventively detained from doing so by an
appropriate order of detention.”
This was followed by the order detaining the Detenu, treated as a
‘Goonda’, from the date of service of the same with a direction to lodge
him in Central Prison, Chanchalguda, Hyderabad.
4. Upon her husband being detained, the appellant submitted a
representation dated 29
th
March, 2023 in terms of section 10 of the Act
raising several grounds and seeking revocation of the Detention Order.
Such representation was placed before the Advisory Board constituted
under section 9 of the Act. The Advisory Board vide a report dated 29
th
April, 2023 opined that “there is sufficient cause for the detention of
the detenu …”, whereupon the Government issued an order dated 20
th
May, 2023 under sub-section (1) of section 12 read with section 13 of
the Act confirming the Detention Order and directing that the detention
be continued for a period of 12 months from the date of detention, i.e.,
27
th
January, 2023 (sic, 27
th
March, 2023). By a further order of even
date, the appellant was informed by the Government of absence of any
valid grounds/reasons to set aside/revoke the Detention Order leading
to rejection of her representation.
5. The appellant then invoked the writ jurisdiction of the High Court
whereupon the parties were heard and the impugned judgment
delivered containing reasons for dismissing the writ petition.
5
CONTENTIONS OF THE PARTIES
6. In course of hearing of the appeal, Mr. Luthra, learned senior counsel
for the appellant invited our attention to several paragraphs of the
impugned judgment to demonstrate the errors from which the same
suffered, both factual as well as legal. He also placed on record written
notes containing submissions on factual as well as legal aspects.
Relying on the authorities referred to therein, he prayed for
interference by this Court to facilitate release of the Detenu from illegal
detention.
7. Per contra, Mr. Dave, learned senior counsel for the respondents urged
that notwithstanding Mr. Luthra’s attempt to prick holes in the
impugned judgment of the High Court, what is to be seen and read is
the order of detention passed under section 3 and once read, it
becomes clear that the ultimate conclusion recorded in the impugned
judgment is defensible based on the grounds for detention as assigned
by the Commissioner in his order dated 24
th
March, 2023 and the order
dated 20
th
May, 2023 of the Government. Other contentions raised by
Mr. Dave need not be enumerated here, for, we intend to deal with the
same while proceeding further. However, to put it concisely, the
argument of Mr. Dave has been that the satisfaction of the detaining
authority cannot be subjected to objective tests and that the courts are
not supposed to exercise appellate powers over such authorities; and
that an order, proper on its face, passed by a competent authority in
good faith is a complete answer to negative a claim such as the one
6
raised by Mr. Luthra. Several authoritative decisions on preventive
detention cases having high precedential value was cited by him and
he contended that the appeal deserves nothing but dismissal.
GENERAL DISCUSSIONS ON PREVENTIVE DETENTION AND
JUDICIAL REVIEWABILITY
8. Prior to venturing to decide the contentious issue as to whether the
Detention Order is legal or not, we consider it necessary to remind
ourselves of the purpose for which preventive detention in a particular
case could be ordered, the requisites of a valid detention order and the
scope of judicial reviewability of such order.
9. Clauses (1) and (2) of Article 22 of the Constitution guarant eeing
protection to a person against arbitrary arrest, effected otherwise than
under a warrant issued by a court of law, are regarded as vital and
fundamental for safeguarding personal liberty. Nonetheless, the
protection so guaranteed is subject to clause (3) of Article 22 which
operates as an exception to clauses (1) and (2) and ordains that
nothing therein shall apply to, inter alia, any person who is arrested or
detained under any law providing for preventive detention. The
purpose of preventive detention, as said by Hon’ble A.N. Ray, CJ. in
Haradhan Saha vs. State of West Bengal
4
is to prevent the greater
evil of elements imperiling the security and safety of a State, and the
welfare of the Nation. Preventive detention, though a draconian and
4
AIR 1974 SC 2154
7
dreaded measure, is permitted by the Constitution itself but subject to
the safeguards that are part of the relevant article and those carved
out by the Constitutional Courts through judicial decisions of high
authority which have stood the test of time.
10. It is common knowledge that recourse to preventive detention can be
taken by the executive merely on suspicion and as a precaution to
prevent activities by the person, sought to be detained, prejudicial to
certain specified objects traceable in a validly enacted law. Since an
order of preventive detention has the effect of invading one’s personal
liberty merely on suspicion and is not viewed as punitive, and the facts
on which the subjective satisfaction of the detaining authority is based
for ordering preventive detention is not justiciable, meaning thereby
that it is not open to the Constitutional Courts to enquire whether the
detaining authority has erroneously or correctly reached a satisfaction
on every question of fact and/or has passed an order of detention which
is not justified on facts, resulting in narrowing down of the jurisdiction
to grant relief, it is only just and proper that such drastic power is not
only invoked in appropriate cases but is also exercised responsibly,
rationally and reasonably. Having regard to the circumstance of loss of
liberty by reason of an order of preventive detention being enforced
without the detenu being extended any opportunity to place his case,
the Constitutional Courts being the protectors of Fundamental Rights
have, however, never hesitated to interdict orders of detention
8
suffering from any of the vices on the existence whereof such limited
jurisdiction of judicial reviewability is available to be exercised.
11. At this stage, a survey of certain authorities outlining the contours of
judicial reviewability of an order of preventive detention may not be
inapt.
12. Reading of paragraph 2 of the judgment authored by Hon’ble H.J.
Kania, CJ., reveals that A.K. Gopalan vs. State of Madras
5
was the
first case where the different articles on Fundamental Rights came up
for discussion before the Supreme Court. Detention was ordered under
the Preventive Detention Act, 1950 (“the Detention Act”, hereafter).
The petitioner therein challenged the vires of the enactment as well as
the detention order. The decision of the Supreme Court by its full
complement of 6 (six) Hon’ble Judges rendered within 4 (four) months
of India becoming a Republic, revealed an approach of circumscribing
Article 21 by a literal interpretation. Since then, this Court in
Rustomjee Cawasjee Cooper vs. Union of India
6
has held that “the
assumption in A.K. Gopalan case that certain articles in the
Constitution exclusively deal with specific matters and in determining
whether there is infringement of the individual’s guaranteed rights, the
object and the form of the State action alone need be considered, and
effect of the laws on fundamental rights of the individuals in general
will be ignored cannot be accepted as correct”, and it being settled law
5
AIR 1950 SC 27
6
AIR 1970 SC 564
9
that the new needs of a person for liberty in the different spheres of
life can now be claimed as a part of personal liberty under Article 21
and these personal liberties cannot be restricted either by legislation
or law not satisfying Articles 14 and 19, we need not at all be guided
by the view expressed in A.K. Gopalan (supra). Suffice it to observe
that A.K. Gopalan (supra) was decided by this Court at the dawn of
the Constitution, keeping in mind the then social realities, when the
true and correct interpretation of the Constitution was yet to take
shape and also without the benefit of any precedent on the point, which
permits understanding of various points of view of Hon’ble Judges and
thereby makes it easy for successors to evolve the dynamic facets of
the Fundamental Rights enshrined in the Constitution.
13. This Court in Shibban Lal Saksena vs. State of Uttar Pradesh
7
speaking through Hon’ble B.K. Mukherjea, J. (as the Chief Justice then
was) quashed an order of preventive detention under the Detention Act
reasoning that if one of the two grounds for ordering detention was
illegal, the order of detention could not survive on the other ground.
Law was laid down in the following words:
“8. The first contention raised by the learned counsel raises,
however, a somewhat important point which requires careful
consideration. It has been repeatedly held by this Court that the
power to issue a detention order under Section 3 of the Preventive
Detention Act depends entirely upon the satisfaction of the
appropriate authority specified in that section. The sufficiency of
the grounds upon which such satisfaction purports to be based,
provided they have a rational probative value and are not
extraneous to the scope or purpose of the legislative provision
7
AIR 1954 SC 179
10
cannot be challenged in a court of law, except on the ground of
malafides. A court of law is not even competent to enquire into
the truth or otherwise of the facts which are mentioned as grounds
of detention in the communication to the detenue under Section 7
of the Act. What has happened, however, in this case is somewhat
peculiar. The Government itself in its communication dated 13-3-
1953, has plainly admitted that one of the grounds upon which
the original order of detention was passed is unsubstantial or non-
existent and cannot be made a ground of detention. The question
is, whether in such circumstances the original order made under
Section 3(1)(a) of the Act can be allowed to stand. The answer, in
our opinion, can only be in the negative. The detaining authority
gave here two grounds for detaining the petitioner. We can neither
decide whether these grounds are good or bad, nor can we
attempt to assess in what manner and to what extent each of
these grounds operated on the mind of the appropriate authority
and contributed to the creation of the satisfaction on the basis of
which the detention order was made. To say that the other ground,
which still remains, is quite sufficient to sustain the order, would
be to substitute an objective judicial test for the subjective
decision of the executive authority which is against the legislative
policy underlying the statute. In such cases, we think, the position
would be the same as if one of these two grounds was irrelevant
for the purpose of the Act or was wholly illusory and this would
vitiate the detention order as a whole. ***”
14. In Rameshwar Shaw vs. District Magistrate
8
, a Constitution Bench
speaking through Hon’ble P.B. Gajendragadkar, J. (as the Chief Justice
then was) in course of interdicting an order of detention passed under
section 3 of the Detention Act held as follows:
“7. There is also no doubt that if any of the grounds furnished to
the detenu are found to be irrelevant while considering the
application of clauses (i) to (iii) of Section 3(1)(a) and in that
sense are foreign to the Act, the satisfaction of the detaining
authority on which the order of detention is based is open to
challenge and the detention order liable to be quashed. Similarly,
if some of the grounds supplied to the detenu are so vague that
they would virtually deprive the detenu of his statutory right of
making a representation that again may introduce a serious
infirmity in the order of his detention. If, however, the grounds on
which the order of detention proceeds are relevant and germane
to the matters which fall to be considered under Section 3(1)(a),
8
AIR 1964 SC 334
11
it would not be open to the detenu to challenge the order of
detention by arguing that the satisfaction of the detaining
authority is not reasonably based on any of the said grounds.
8. It is, however, necessary to emphasise in this connection that
though the satisfaction of the detaining authority contemplated by
Section 3(1)(a) is the subjective satisfaction of the said authority,
cases may arise where the detenu may challenge the validity of
his detention on the ground of mala fides and in support of the
said plea urge that along with other facts which show mala fides
the Court may also consider his grievance that the grounds served
on him cannot possibly or rationally support the conclusion drawn
against him by the detaining authority. It is only in this incidental
manner and in support of the plea of mala fides that this question
can become justiciable; otherwise the reasonableness or propriety
of the said satisfaction contemplated by Section 3(1)(a) cannot be
questioned before the Courts.”
15. In his Counter Affidavit (at pgs. 10 and 11) to the special leave petition,
the Commissioner referred to, and extracted a passage from paragraph
8 of the decision of this Court in Khudiram Das vs. The State of
West Bengal
9
, wherein a Bench of 4 (four) Hon’ble Judges of this
Court was examining a challenge to an order of detention passed under
section 3 of the Maintenance of Internal Security Act, 1971 (“MISA”,
hereafter) by a district magistrate. We consider it appropriate to notice
not only paragraph 8 of the decision rendered by Hon’ble P.N. Bhagwati,
J. (as His Lordship then was) in its entirety but also paragraph 9,
reading as follows:
“8. Now it is clear on a plain reading of the language of sub -
sections (1) and (2) of Section 3 that the exercise of the power of
detention is made dependent on the subjective satisfaction of the
detaining authority that with a view to preventing a person from
acting in a prejudicial manner, as set out in sub-clauses (i), (ii)
and (iii) of clause (a) of sub-section (1), it is necessary to detain
such person. The words used in sub-sections (1) and (2) of Section
3 are ‘if satisfied’ and they clearly import subjective satisfaction
9
(1975) 2 SCC 81
12
on the part of the detaining authority before an order of detention
can be made. And it is so provided for a valid reason which
becomes apparent if we consider the nature of the power of
detention and the conditions on which it can be exercised. The
power of detention is clearly a preventive measure. It does not
partake in any manner of the nature of punishment. It is taken by
way of precaution to prevent mischief to the community. Since
every preventive measure is based on the principle that a person
should be prevented from doing something which, if left free and
unfettered, it is reasonably probable he would do, it must
necessarily proceed in all cases, to some extent, on suspicion or
anticipation as distinct from proof. Patanjali Sastri, C.J. pointed
out in State of Madras v. V.G. Row [(1952) 1 SCC 410 : AIR 1952
SC 196 : 1952 SCR 597] that preventive detention is ‘largely
precautionary and based on suspicion’ and to these observations
may be added the following words uttered by the learned Chief
Justice in that case with reference to the observations of Lord
Finlay in Rex v. Halliday [1917 AC 260] namely, that ‘the court was
the least appropriate tribunal to investigate into circumstances of
suspicion on which such anticipatory action must be largely based’.
This being the nature of the proceeding, it is impossible to
conceive how it can possibly be regarded as capable of objective
assessment. The matters which have to be considered by the
detaining authority are whether the person concerned, having
regard to his past conduct judged in the light of the surrounding
circumstances and other relevant material, would be likely to act
in a prejudicial manner as contemplated in any of sub-clauses (i),
(ii) and (iii) of clause (1) of sub-section (1) of Section 3, and if so,
whether it is necessary to detain him with a view to preventing
him from so acting. These are not matters susceptible of objective
determination and they could not be intended to be judged by
objective standards. They are essentially matters which have to
be administratively determined for the purpose of taking
administrative action. Their determination is, therefore,
deliberately and advisedly left by the Legislature to the subjective
satisfaction of the detaining authority which by reason of its
special position, experience and expertise would be best fitted to
decide them. It must in the circumstances be held that the
subjective satisfaction of the detaining authority as regards these
matters constitutes the foundation for the exercise of the power
of detention and the Court cannot be invited to consider the
propriety or sufficiency of the grounds on which the satisfaction of
the detaining authority is based. The Court cannot, on a review of
the grounds, substitute its own opinion for that of the authority,
for what is made a condition precedent to the exercise of the
power of detention is not an objective determination of the
necessity of detention for a specified purpose but the subjective
opinion of the detaining authority, and if a subjective opinion is
formed by the detaining authority as regards the necessity of
13
detention for a specified purpose, the condition of exercise of the
power of detention would be fulfilled. This would clearly show that
the power of detention is not a quasi-judicial power.
9. But that does not mean that the subjective satisfaction of the
detaining authority is wholly immune from judicial reviewability.
The courts have by judicial decisions carved out an area, limited
though it be, within which the validity of the subjective satisfaction
can yet be subjected to judicial scrutiny. The basic postulate on
which the courts have proceeded is that the subjective satisfaction
being a condition precedent for the exercise of the power
conferred on the Executive, the Court can always examine whether
the requisite satisfaction is arrived at by the authority : if it is not,
the condition precedent to the exercise of the power would not be
fulfilled and the exercise of the power would be bad. There are
several grounds evolved by judicial decisions for saying that no
subjective satisfaction is arrived at by the authority as required
under the statute. The simplest case is whether the authority has
not applied its mind at all; in such a case the authority could not
possibly be satisfied as regards the fact in respect of which it is
required to be satisfied. Emperor v. Shibnath Bannerji [AIR 1943
FC 75 : 1944 FCR 1 : 45 Cri LJ 341] is a case in point. Then there
may be a case where the power is exercised dishonestly or for an
improper purpose : such a case would also negative the existence
of satisfaction on the part of the authority. The existence of
‘improper purpose’, that is, a purpose not contemplated by the
statute, has been recognised as an independent ground of control
in several decided cases. The satisfaction, moreover, must be a
satisfaction of the authority itself, and therefore, if, in exercising
the power, the authority has acted under the dictation of another
body as the Commissioner of Police did in Commissioner of Police
v. Gordhandas Bhanji [1951 SCC 1088 : AIR 1952 SC 16 : 1952
SCR 135] and the officer of the Ministry of Labour and National
Service did in Simms Motor Units Ltd. v. Minister of Labour and
National Service [(1946) 2 All ER 201] the exercise of the power
would be bad and so also would the exercise of the power be
vitiated where the authority has disabled itself from applying its
mind to the facts of each individual case by self-created rules of
policy or in any other manner. The satisfaction said to have been
arrived at by the authority would also be bad where it is based on
the application of a wrong test or the misconstruction of a statute.
Where this happens, the satisfaction of the authority would not be
in respect of the thing in regard to which it is required to be
satisfied. Then again the satisfaction must be groun ded ‘on
materials which are of rationally probative value’. Machindar v.
King [AIR 1950 FC 129 : 51 Cri LJ 1480 : 1949 FCR 827]. The
grounds on which the satisfaction is based must be such as a
rational human being can consider connected with the fact in
respect of which the satisfaction is to be reached. They must be
14
relevant to the subject-matter of the inquiry and must not be
extraneous to the scope and purpose of the statute. If the
authority has taken into account, it may even be with the best of
intention, as a relevant factor something which it could not
properly take into account in deciding whether or not to exercise
the power or the manner or extent to which it should be exercised,
the exercise of the power would be bad. Pratap Singh v. State of
Punjab [AIR 1964 SC 72 : (1964) 4 SCR 733]. If there are to be
found in the statute expressly or by implication matters which the
authority ought to have regard to, then, in exercising the power,
the authority must have regard to those matters. The authority
must call its attention to the matters which it is bound to consider.”
(underlining ours, for emphasis)
16. In Icchu Devi Choraria vs. Union of India
10
, the judicial
commitment to strike down illegal detention, even when the petition
on which Rule was issued did not have the requisite pleadings , was
highlighted in the following words:
“5. *** Where large masses of people are poor, illiterate and
ignorant and access to the courts is not easy on account of lack
of financial resources, it would be most unreasonable to insist
that the petitioner should set out clearly and specifically the
grounds on which he challenges the order of detention and make
out a prima facie case in support of those grounds before a rule
is issued or to hold that the detaining authority should not be
liable to do any thing more than just meet the specific grounds
of challenge put forward by the petitioner in the petition. The
burden of showing that the detention is in accordance with the
procedure established by law has always been placed by this
Court on the detaining authority because Article 21 of the
Constitution provides in clear and explicit terms that no one shall
be deprived of his life or personal liberty except in accordance
with procedure established by law. This constitutional right of life
and personal liberty is placed on such a high pedestal by this
Court that it has always insisted that whenever there is any
deprivation of life or personal liberty, the authority responsible
for such deprivation must satisfy the court that it has acted in
accordance with the law. This is an area where the court has been
most strict and scrupulous in ensuring observance with the
requirements of the law, and even where a requirement of the
law is breached in the slightest measure, the court has not
10
(1980) 4 SCC 531
15
hesitated to strike down the order of detention or to direct the
release of the detenu even though the detention may have been
valid till the breach occurred. The court has always regarded
personal liberty as the most precious possession of mankind and
refused to tolerate illegal detention, regardless of the social cost
involved in the release of a possible renegade.”
(underlining ours, for emphasis)
17. In a different context, we may take note of the decision in Sama
Aruna vs. State of Telangana
11
where, S.A. Bobde, J. (as the Chief
Justice then was) while construing the provisions of the Act, held:
“16. There is little doubt that the conduct or activities of the
detenu in the past must be taken into account for coming to the
conclusion that he is going to engage in or make preparations for
engaging in such activities, for many such persons follow a pattern
of criminal activities. But the question is how far back? There is no
doubt that only activities so far back can be considered as furnish
a cause for preventive detention in the present. That is, only those
activities so far back in the past which lead to the conclusion that
he is likely to engage in or prepare to engage in such activities in
the immediate future can be taken into account.”
In holding that the order of detention therein was grounded on stale
grounds, the Court held that:
“The detention order must be based on a reasonable prognosis of
the future behaviour of a person based on his past conduct in light
of the surrounding circumstances. The live and proximate link that
must exist between the past conduct of a person and the
imperative need to detain him must be taken to have been
snapped in this case. A detention order which is founded on stale
incidents, must be regarded as an order of punishment for a crime,
passed without a trial, though purporting to be an order of
preventive detention. The essential concept of preventive
detention is that the detention of a person is not to punish him for
something he has done but to prevent him from doing it.”
(underlining ours, for emphasis)
11
(2018) 12 SCC 150
16
18. This was further affirmed by this Court in Khaja Bilal Ahmed vs .
State of Telangana
12
, where the detention order dated 2
nd
November,
2018 issued under the Act had delved into the history of cases involving
the appellant-detenu from the years 2007 - 2016, despite the
subjective satisfaction of the Officer not being based on such cases. In
quashing such an order, Hon’ble Dr. D.Y. Chandrachud, J. (as the Chief
Justice then was) observed:
“23. *** If the pending cases were not considered for passing the
order of detention, it defies logic as to why they were referred to
in the first place in the order of detention. The purpose of the
Telangana Offenders Act 1986 is to prevent any person from acting
in a manner prejudicial to the maintenance of public order. For this
purpose, Section 3 prescribes that the detaining authority must be
satisfied that the person to be detained is likely to indulge in illegal
activities in the future and act in a manner prejudicial to the
maintenance of public order. The satisfaction to be arrived at by
the detaining authority must not be based on irrelevant or invalid
grounds. It must be arrived at on the basis of relevant material;
material which is not stale and has a live link with the satisfaction
of the detaining authority. The order of detention may refer to the
previous criminal antecedents only if they have a direct nexus or
link with the immediate need to detain an individual. If the
previous criminal activities of the Appellant could indicate his
tendency or inclination to act in a manner prejudicial to the
maintenance of public order, then it may have a bearing on the
subjective satisfaction of the detaining authority. However, in the
absence of a clear indication of a causal connection, a mere
reference to the pending criminal cases cannot account for the
requirements of Section 3. It is not open to the detaining authority
to simply refer to stale incidents and hold them as the basis of an
order of detention. Such stale material will have no bearing on the
probability of the detenu engaging in prejudicial activities in the
future.”
(bold in original)
(underlining ours, for emphasis)
12
(2020) 13 SCC 632
17
19. We may also refer to the decision of a Constitution Bench of this Court
in Sunil Fulchand Shah vs. Union of India
13
wherein the need to
strictly adhere to the timelines, provided as procedural safeguards, was
stressed upon. It was held thus:
“11. *** The safeguards available to a person against whom an
order of detention has been passed are limited and, therefore, the
courts have always held that all the procedural safeguards
provided by the law should be strictly complied with. Any default
in maintaining the time-limit has been regarded as having the
effect of rendering the detention order or the continued detention,
as the case may be, illegal. The justification for preventive
detention being necessity a person can be detained only so long
as it is found necessary to detain him. If his detention is found
unnecessary, even during the maximum period permissible under
the law then he has to be released from detention forthwith. It is
really in this context that Section 10 and particularly the words
‘may be detained’ shall have to be interpreted.”
20. On a conspectus of the decisions referred to above and other decisions
on preventive detention, we may observe here that the argument
commonly advanced on behalf of detaining authorities in the early days
of the Constitution was that the Court’s enquiry ought to be confined
to whether there is an order of detention or not and the moment such
an order, good on its face, is produced, all enquiry into good faith,
sufficiency of the reasons or the legality or illegality of the action comes
to an end. However, w ith passage of time, and expansion and
development of law, it is no longer the law that a preventive detention
action, howsoever lawful it might appear on its face, cannot be
invalidated by the Constitutional Courts. This is so, as at present, there
is no administrative order affecting rights of the subjects that can
13
(2000) 3 SCC 409
18
legitimately claim to be impregnably guarded by a protective shield,
which judicial scrutiny cannot penetrate.
21. Apart from the aforesaid decisions, multiple decisions have been
rendered by this Court over the years which provide suitable guidance
to us to complete the present exercise; however, we wish to conclude
this discussion by referring to one decision of this Court delivered little
in excess of a decade back by a Bench of 3-Judges.
22. In Rekha vs. State of Tamil Nadu
14
, this Court observed that:
“21. It is all very well to say that preventive detention is
preventive not punitive. The truth of the matter, though, is that in
substance a detention order of one year (or any other period) is a
punishment of one year’s imprisonment. What difference is it to
the detenu whether his imprisonment is called preventive or
punitive?
(italics in original)
***
29. Preventive detention is, by nature, repugnant to democratic
ideas and an anathema to the Rule of law. No such law exists in
the USA and in England (except during war time). Since, however,
Article 22(3)(b) of the Constitution of India permits preventive
detention, we cannot hold it illegal but we must confine the power
of preventive detention within very narrow limits, otherwise we
will be taking away the great right to liberty guaranteed by Article
21 of the Constitution of India which was won after long, arduous
and historic struggles. It follows, therefore, that if the ordinary law
of the land (the Penal Code and other penal statutes) can deal with
a situation, recourse to a preventive detention law will be illegal.”
23. There could be little doubt with the thought process that although the
executive would pass an order under the preventive detention laws as
14
(2011) 5 SCC 244
19
a preventive or a precautionary measure, its effect viewed strictly from
the stand point of the detenu is simply and plainly punitive.
Significantly, an order of detention is not relatable to an alleged
commission of offence which a court is seized of and, thus, the conduct
of the accused complained of is yet to be found blameworthy; on the
contrary, since it relates to an anticipated offence based on past
conduct, the detenu could well feel that he is at the receiving end of a
subjective satisfaction of the executive despite he not being proved to
be on the wrong side of the law on any previous occasion. If someone
loses his liberty and lands up in prison not having a semblance of a
chance to resist or protest, the very circumstance of being put behind
bars for such period as specified in the order of detention based on an
anticipation that an offence is likely to be committed by him seems to
be an aspect which does not sync with the norms and ethos of our very
own Constitution and the decisions of this Court in which the concept
of ‘LIFE’ has been explained in such a manner that ‘LIFE’ has been
infused in the letters of Article 21 (see Common Cause vs. Union of
India
15
). Nonetheless, so long clause (3) of Article 22 of the
Constitution itself authorises detention as a preventive measure, there
can be no two opinions that none can take exception to such a measure
being adopted and it is only a limited judicial review by the
Constitutional Courts that can be urged by an aggrieved detenu
wherefor too, in examining challenges to orders of preventive
detention, the Courts would be loath to interfere with or substitute their
15
(1999) 6 SCC 667
20
own reasoning for the subjective satisfaction arrived at by the detaining
authority. Since the object of a preventive detention law is not punitive
but preventive and precautionary, ordinarily it is best left to the
discretion of the detaining authority.
24. We, however, hasten to observe here that though the decision in
Rekha (supra) reflects on an important aspect of loss of liberty without
trial by taking recourse to preventive detention laws, the decision of
the Constitution Bench in Haradhan Saha (supra) still holds the field
and to the extent the learned Judges in Rekha (supra) sound a note
discordant with the law laid down in Haradhan Saha (supra) ought
not to be construed as acceptance by us as the correct exposition of
law.
25. Be that as it may, culling out the principles of law flowing from all the
relevant decisions in the field, our understanding of the law for deciding
the legality of an order of preventive detention is that even without
appropriate pleadings to assail such an order, if circumstances appear
therefrom raising a doubt of the detaining authority misconceiving his
own powers, the Court ought not to shut its eyes; even not venturing
to make any attempt to investigate the sufficiency of the materials, an
enquiry can be made by the Court into the authority’s notions of his
power. Without being remotely concerned about the sufficiency or
otherwise of the materials on which detention has been ordered, the
Court would be justified to draw a conclusion, on proof from the order
itself, that the detaining authority failed to realize the extent of his own
21
powers. This is quite apart from questioning the action for want of
sufficient materials that were before the detaining authority. The
authority for the detention is the order of detention itself, which the
detenu or the Court can read. Such a reading of t he order would
disclose the manner in which the activity of the detenu was viewed by
the detaining authority to be prejudicial to maintenance of public order
and what exactly he intended should not be permitted to happen. Any
order of a detaining authority evincing that the same runs beyond his
powers, as are actually conferred, would not amount to a valid order
made under the governing preventive detention law and be vulnerable
on a challenge being laid. In the circumstances of a given case, a
Constitutional Court when called upon to test the legality of orders of
preventive detention would be entitled to examine whether
(i) the order is based on the requisite satisfaction, albeit
subjective, of the detaining authority, for, the absence of such
satisfaction as to the existence of a matter of fact or law, upon
which validity of the exercise of the power is predicated, would
be the sine qua non for the exercise of the power not being
satisfied;
(ii) in reaching such requisite satisfaction, the detaining authority
has applied its mind to all relevant circumstances and the
same is not based on material extraneous to the scope and
purpose of the statute;
22
(iii) power has been exercised for achieving the purpose for which
it has been conferred, or exercised for an improper purpose,
not authorised by the statute, and is therefore ultra vires;
(iv) the detaining authority has acted independently or under the
dictation of another body;
(v) the detaining authority, by reason of self-created rules of
policy or in any other manner not authorized by the governing
statute, has disabled itself from applying its mind to the facts
of each individual case;
(vi) the satisfaction of the detaining authority rests on materials
which are of rationally probative value, and the detaining
authority has given due regard to the matters as per the
statutory mandate;
(vii) the satisfaction has been arrived at bearing in mind existence
of a live and proximate link between the past conduct of a
person and the imperative need to detain him or is based on
material which is stale;
(viii) the ground(s) for reaching the requisite satisfaction is/are
such which an individual, with some degree of rationality and
prudence, would consider as connected with the fact and
relevant to the subject-matter of the inquiry in respect
whereof the satisfaction is to be reached;
23
(ix) the grounds on which the order of preventive detention rests
are not vague but are precise, pertinent and relevant which,
with sufficient clarity, inform the detenu the satisfaction for
the detention, giving him the opportunity to make a suitable
representation; and
(x) the timelines, as provided under the law, have been strictly
adhered to.
Should the Court find the exercise of power to be bad and/or to be
vitiated applying any of the tests noted above, rendering the detention
order vulnerable, detention which undoubtedly visits the person
detained with drastic consequences would call for being interdicted for
righting the wrong.
ANALYSIS AND DECISION
26. Since in the present case power under section 3 of the Act was
exercised, it is reproduced hereunder for facility of reference:
“3. (1) The Government may, if satisfied with respect to any boot-
legger, dacoit, drug-offender, goonda, immoral traffic offender,
Land-Grabber, Spurious Seed Offender, Insecticide Offender,
Fertilizer Offender, Food Adulteration Offender, Fake Document
Offender, Scheduled Commodities Offender, Forest Offender,
Gaming Offender, Sexual Offender, Explosive Substances Offender,
Arms Offender, Cyber Crime Offender and White Collar or Financial
Offender, that with a view to preventing him from acting in any
manner prejudicial to the maintenance of public order, it is
necessary so to do, make an order directing that such person be
detained.
24
(2) If, having regard to the circumstances prevailing or likely to
prevail in any area within the local limits of the jurisdiction of a
District Magistrate or a Commissioner of Police, the Government
are satisfied that it is necessary so to do, they may, by order in
writing, direct that during such period as may be specified in the
order, such District Magistrate or Commissioner of Police may also,
if satisfied as provided in sub-section (1), exercise the powers
conferred by the said sub-section:
Provided that the period specified in the order made by the
Government under this sub-section shall not in the first instance,
exceed three months, but the Government may, if satisfied as
aforesaid that it is necessary so to do, amend such order to extend
such period from time to time by any period not exceeding three
months at any one time.
(3) When any order is made under this section by an officer
mentioned in sub-section (2), he shall forthwith report the fact to
the Government together with the grounds on which the order has
been made and such other particulars as in his opinion, have a
bearing on the matter, and no such order shall remain in force for
more than twelve days after the making thereof, unless, in the
mean time, it has been approved by the Government.”
The word used in sub-sections (1) and (2) of section 3 is “satisfied”
and it clearly imports subjective satisfaction on the part of the detaining
authority before an order of detention can be made.
27. We now proceed to examine the Detention Order passed by the
Commissioner on 24
th
March, 2023 under section 3(2) of the Act and
whether such ‘subjective satisfaction’ of the Commissioner stands
scrutiny on application of the requisite tests.
28. In the present case, the Detention Order was based on 5 (five) distinct
offences, of which there is a crime allegedly committed by the Detenu
in relation to a minor girl. Crimes have also been registered on
allegations of cheating, and obstructing a public official from
discharging his duty, as well as a crime has been registered involving
25
dacoity. In Crime Nos. 262/2022, 18/2023 and 35/2023, charge-sheets
are yet to be filed and the Detenu has been released on bail whereas
in regard to Crime Nos. 338/2022 and 227/2022, charge-sheets have
been filed without even arresting him.
29. The issues with the Detention Order which we need to address are
these: first, whether the alleged acts of commission for which the
Detenu has been kept under detention are prejudicial to ‘public order’
and secondly, whether all relevant circumstances were considered or
whether extraneous factors weighed in the mind of the detaining
authority leading to the conclusion that the Detenu is a habitual
offender and for prevention of further crimes by him, he ought to be
detained. Incidentally, the issue of whether application of mind is
manifest in first ordering detention and then confirming it by continuing
such order for a period of 12 (twelve) months upon rejection of the
representation filed on behalf of the Detenu by the appellant could also
be answered. Needless to observe, we need not examine the second
and the incidental issues if the appeal succeeds on the first issue.
30. Addressing the first issue first, it has to be understood as a
fundamental imperative as to how this Court has distinguished between
disturbances relatable to “law and order” and disturbances caused to
“public order”.
26
31. It is trite that breach of law in all cases does not lead to public disorder.
In a catena of judgments, this Court has in clear terms noted the
difference between “law and order” and “public order”.
32. We may refer to the decision of the Constitution Bench of this Court in
Ram Manohar Lohia vs. State of Bihar
16
, where the difference
between “law and order” and “public order” was lucidly expressed by
Hon’ble M. Hidayatullah, J. (as the Chief Justice then was) in the
following words:
“54. *** Public order if disturbed, must lead to public disorder.
Every breach of the peace does not lead to public disorder. When
two drunkards quarrel and fight there is disorder but not public
disorder. They can be dealt with under the powers to maintain law
and order but cannot be detained on the ground that they were
disturbing public order. Suppose that the two fighters were of rival
communities and one of them tried to raise communal passions.
The problem is still one of law and order but it raises t he
apprehension of public disorder. Other examples can be imagined.
The contravention of law always affects order but before it can be
said to affect public order, it must affect the community or the
public at large. A mere disturbance of law and order leading to
disorder is thus not necessarily sufficient for action under the
Defence of India Act but disturbances which subvert th e public
order are.
55. It will thus appear that just as ‘public order’ in the rulings of
this Court (earlier cited) was said to comprehend disorders of less
gravity than those affecting ‘security of State’, ‘law and order’ also
comprehends disorders of less gravity than those affecting ‘public
order’. One has to imagine three concentric circles. Law and order
represents the largest circle within which is the next circle
representing public order and the smallest circle represents
security of State. It is then easy to see that an act may affect law
and order but not public order just as an act may affect public
order but not security of the State.”
(underlining ours, for emphasis)
16
(1966) 1 SCR 709
27
33. For an act to qualify as a disturbance to public order, the specific
activity must have an impact on the broader community or the general
public, evoking feelings of fear, panic, or insecurity. Not every case of
a general disturbance to public tranquillity affects the public order and
the question to be asked, as articulated by Hon’ble M. Hidayatullah, CJ.
in Arun Ghosh vs. State of West Bengal
17
, is this: “Does it [read:
the offending act] lead to disturbance of the current of life of the
community so as to amount a disturbance of the public order or does
it affect merely an individual leaving the tranquillity of the society
undisturbed?” In that case, the petitioning detenu was detained by an
order of a district magistrate since he had been indulging in teasing,
harassing and molesting young girls and assaults on individuals of a
locality. While holding that the conduct of the petitioning detenu could
be reprehensible, it was further held that it (read: the offending act)
“does not add up to the situation where it may be said that the
community at large was being disturbed or in other words there was a
breach of public order or likelihood of a breach of public order”. In the
process of quashing the impugned order, the C hief Justice while
referring to the decision in Ram Manohar Lohia (supra) also ruled:
“3. *** Public order was said to embrace more of the community
than law and order. Public order is the even tempo of the life of
the community taking the country as a whole or even a specified
locality. Disturbance of public order is to be distinguished from
acts directed against individuals which do not disturb the society
to the extent of causing a general disturbance of public tranquillity.
It is the degree of disturbance and its affect upon the life of the
community in a locality which determines whether the disturbance
17
(1970) 1 SCC 98
28
amounts only to a breach of law and order. … It is always a
question of degree of the harm and its affect upon the community.
… This question has to be faced in every case on facts. There is no
formula by which one case can be distinguished from another.”
34. In Kuso Sah vs. The State of Bihar
18
, Hon’ble Y.V. Chandrachud, J.
(as the Chief Justice then was) speaking for the Bench held that:
“4. *** The two concepts have well defined contours, it being well
established that stray and unorganised crimes of theft and assault
are not matters of public order since they do not tend to affect the
even flow of public life. Infractions of law are bound in some
measure to lead to disorder but every infraction of law does not
necessarily result in public disorder. ***
6. *** The power to detain a person without the safeguard of a
court trial is too drastic to permit a lenient construction and
therefore Courts must be astute to ensure that the detaining
authority does not transgress the limitations subject to which
alone the power can be exercised. ***”
(underlining ours, for emphasis)
35. Turning our attention to section 3(1) of the Act, the Government has
to arrive at a subjective satisfaction that a goonda (as in the present
case) has to be detained, in order to prevent him from acting in a
manner prejudicial to the maintenance of public order. Therefore, we
first direct ourselves to the examination of what constitutes ‘public
order’. Even within the provisions of the Act, the term “public order”
has, stricto sensu, been defined in narrow and restricted terms. An
order of detention under section 3(1) of the Act can only be issued
against a detenu to prevent him “from acting in any manner prejudicial
to the maintenance of public order”. “Public order” is defined in the
18
(1974) 1 SCC 195
29
Explanation to section 2(a) of the Act as encompassing situations that
cause “harm, danger or alarm or a feeling of insecurity among the
general public or any section thereof or a grave wide-spread danger to
life or public health”.
36. Ram Manohar Lohia (supra) is an authority to rely upon for the
proposition that if liberty of an individual can be invaded under
statutory rules by the simple process of making of a certain order, he
can be so deprived only if the order is in consonance with the said rule.
Strict compliance with the letter of the rule, in such a case, has to be
the essence of the matter since the statute has the potentiality to
interfere with the personal liberty of an individual and a Court is
precluded from going behind its face. Though circumstances may make
it necessary for ordering a detention without trial, but it would be
perfectly legitimate to require strict observance of the rules in such
cases. If there is any doubt whether the rules have been strictly
observed, that doubt must be resolved in favour of the detenu.
37. Rekha too (supra) provides a useful guide. It is said in paragraph 30
that:
“30. Whenever an order under a preventive detention law is
challenged one of the questions the court must ask in deciding
its legality is: was the ordinary law of the land sufficient to deal
with the situation? If the answer is in the affirmative, the
detention order will be illegal. In the present case, the charge
against the detenu was of selling expired drugs after changing
their labels. Surely the relevant provisions in the Penal Code
and the Drugs and Cosmetics Act were sufficient to deal with
this situation. Hence, in our opinion, for this reason also the
detention order in question was illegal.”
30
38. At this stage, it would be useful to consider certain events anterior to
the Detention Order but referred to therein. The earlier order of
detention dated 4
th
March, 2021 was challenged by the Detenu’s father
before the High Court. Such order of detention was passed considering
4 (four) FIRs under sections 420 and 406 of the IPC, wherein the
Detenu was arraigned as an accused. In its reasoned judgment dated
16
th
August, 2021, the High Court noted this Court having opined in a
catena of decisions that there is a vast difference between “law and
order” and “public order”; when offences are committed against a
particular individual it falls within the ambit of “law and order” whereas
when the public at large is adversely affected by the criminal activities
of a person, then such conduct of the person is said to disturb “public
order”. Holding that the true distinction between the areas of ‘law and
order’ and ‘public order’ lies not merely in the nature or quality of the
act, but in the proper degree and extent of its impact on the society, it
was ruled that the cases do not fall within the ambit of the words
“public order” or “disturbance of public order”, instead, they fall within
the scope of the words “law and order”, and that there was no need for
the detaining authority to pass the impugned order. Based thereon, the
impugned order was quashed and the Detenu set at liberty.
39. In fine, what we find is that the order of detention impugned in that
writ petition failed to differentiate between offences which create a “law
and order” situation and which prejudicially affect or tend to
prejudicially affect “public order”. The present Detention Order fares no
31
better. Even if the offences referred to in the Detention Order, alleged
to have been committed by the Detenu have led to the satisfaction
being formed, still the same are separate and stray acts affecting
private individuals and the repetition of similar such acts would not
tend to affect the even flow of public life. The offence in respect of the
minor girl did exercise our consideration for some time but we have
noted that the Detenu was not arrested because of an order passed by
the High Court on an application under section 438 of the Criminal
Procedure Code (“Cr. PC”, hereafter). The investigating agency not
having elected to have such order quashed by a higher forum, the facts
have their own tale to tell. Even otherwise, the gravity of the offences
alleged in Arun Ghosh (supra) was higher in degree, yet, the same
were not considered as affecting ‘public order’. The only other offence
that could attract the enumerated category of “acting in any manner
prejudicial to the maintenance of public order” and an order of
preventive detention, if at all, is the stray incident where the Detenu
has been charged under section 353, IPC and where the police has not
even contemplated an arrest under section 41 of the Cr. PC.
40. On an overall consideration of the circumstances, it does appear to us
that the existing legal framework for maintaining law and order is
sufficient to address like offences under consideration, which the
Commissioner anticipates could be repeated by the Detenu if not
detained. We are also constrained to observe that preventive detention
laws—an exceptional measure reserved for tackling emergent
32
situations—ought not to have been invoked in this case as a tool for
enforcement of “law and order”. This, for the reason that, the
Commissioner despite being aware of the earlier judgment and order
of the High Court dated 16
th
August, 2021 passed the Detention Order
ostensibly to maintain “public order” without once more appreciating
the difference between maintenance of “law and order” and
maintenance of “public order”. The order of detention is, thus,
indefensible.
41. We could have ended our judgment here, but having regard to the
arguments advanced at the Bar we wish to deal with the other issues
too. This, we are persuaded to do, in order to remind the authorities in
the state of Telangana that the drastic provisions of the Act are not to
be invoked at the drop of a hat.
42. Now, we proceed with the second issue as to whether there was proper
application of mind to all relevant circumstances or whether
consideration of extraneous factors has vitiated the Detention Order.
43. Considering past criminal history, which is proximate, by itself would
not render an order illegal. The Commissioner in the Detention Order
made pointed reference to the Detenu being a habitual offender by
listing 10 (ten) criminal proceedings in which the Detenu was involved
during the years 2019-20, consequent to which the Detenu was
preventively detained under the Act vide order of detention dated 4
th
March, 2021, since quashed by the High Court by its order dated 16
th
33
August, 2021. It is then stated therein that the Detenu had committed
9 (nine) offences in the years 2022-23, and these offences are again
listed out in detail. However, the Commissioner states that the present
order of detention is based only on 5 (five) out of these 9 (nine) crimes,
which are alleged to show that the Detenu’s activities are “prejudicial
to the maintenance of public order, apart from disturbing peace and
tranquillity in the area.”
44. Interestingly, even in paragraph 9 E of his Counter Affidavit, the
Commissioner has extracted a portion of the Detention Order which we
have set out in paragraph 3 (supra). The reiteration of considering past
criminal history of the Detenu is not without its effect, as we shall
presently discuss.
45. In Khudiram Das (supra), while examining the ‘history sheet’ of the
detenu, this Court had, in express terms, clarified that a generalisation
could not be made that the detenu was in the habit of committing those
offences. Merely because the detenu was charged for multiple offences,
it could not be said that he was in the habit of committing such
offences. Further, habituality of committing offences cannot, in
isolation, be taken as a basis of any detention order; rather it has to
be tested on the metrics of ‘public order’, as discussed above.
Therefore, cases where such habituality has created any ‘public
disorder’ could qualify as a ground to order detention.
34
46. Although the Commissioner sought to project that he ordered detention
based on the said 5 (five) FIRs, indication of the past offences allegedly
committed by the Detenu in the Detention Order having influenced his
thought process is clear. With the quashing of the order of detention
dated 4
th
March, 2021 by the High Court and such direction having
attained finality, it defies logic why the Commissioner embarked on an
elaborate narration of past offences, which are not relevant to the
grounds of the present order of detention. This is exactly what this
Court in Khaja Bilal Ahmed (supra) deprecated. Also, as noted above,
this Court in Shibban Lal Saksena (supra) held that such an order
would be a bad order, the reason being that it could not be said in what
manner and to what extent the valid and invalid grounds operated on
the mind of the authority concerned and contributed to his subjective
satisfaction forming the basis of the order.
47. It would not be out of place to examine, at this juncture, whether the
Commissioner as the detaining authority formed the requisite
satisfaction in the manner required by law, i.e., by drawing inference
of a likelihood of the Detenu indulging in prejudicial activities on
objective data. Here, we would bear in mind the caution sounded by
this Court in Rajesh Gulati vs. Govt. of NCT of Delhi
19
that a
detaining authority should be free from emotions, beliefs or prejudices
while ordering detention as well as take note of the judgment and order
19
(2002) 7 SCC 129
35
dated 16
th
August, 2021 of the High Court on the previous writ petition,
instituted by the Detenu’s father. On such writ petition, the High Court
held as follows:
“Under these circumstances, the apprehension of the detaining
authority that since the detenus were granted bail in all the
crimes, there is imminent possibility of the detenus committing
similar offences which are detrimental to public order unless they
are prevented from doing so by an appropriate order of detention,
is highly misplaced. […] In the instant cases, since the detenus
are released on bail, in the event if it is found that the detenus are
involved in further crimes, the prosecution can apprise the same
to the Court concerned and seek cancellation of bail. Moreover, the
criminal law was already set into motion against the detenus.
Since the detenus have allegedly committed offences punishable
under the Indian Penal Code, the said crimes can be effectively
dealt with under the provisions of the Indian Penal Code. The
detaining authority cannot be permitted to subvert, supplant or
substitute the punitive law of land, by ready resort to preventive
detention.”
48. Since the aforesaid order of the High Court went unchallenged and is,
thus, binding upon the parties, it was not open to the Commissioner to
refer to the very same antecedent offences again in the Detention Order
under challenge. There was no direct nexus or link with the immediate
need to order detention and we hold extraneous considerations having
found their way into the Detention Order.
49. The other aspect requiring some guidance for detaining authorities and
on which we wish to comment is that there is no requirement in law of
orders of detention being expressed in language that would normally be
considered elegant or artistic. An order of detention, which is capable of
comprehension, has to precisely set forth the grounds of detention
without any vagueness. The substance of the order and how it is
36
understood by the detenu determines its nature. An order in plain and
simple language providing clarity of how the subjective satisfaction was
formed is what a detenu would look for, since the detenu has a right to
represent against the order of detention and claim that such order should
not have been made at all. If the detenu fails to comprehend the grounds
of detention, the very purpose of affording him the opportunity to make
a representation could be defeated. At the same time, the detaining
authority ought to ensure that the order does not manifest consideration
of extraneous factors. The detaining authority must be cautious and
circumspect that no extra or additional word or sentence finds place in
the order of detention, which evinces the human factor - his mindset of
either acting with personal predilection by invoking the stringent
preventive detention laws to avoid or oust judicial scrutiny, given the
restrictions of judicial review in such cases, or as an authority charged
with the notion of overreaching the courts, chagrined and frustrated by
orders granting bail to the detenu despite stiff opposition raised by the
State and thereby failing in the attempt to keep the detenu behind bars.
50. What we have expressed above is best exemplified by the observations
of the Commissioner in the Detention Order under challenge, which are
considered appropriate to be quoted. Therein, the Commissioner inter
alia stated as follows:
“The proposed detenu and his associate are notorious offenders
and rowdy sheeters. …
The proposed detenu was surrendered before the Hon'ble Court in
Cr.No.35/2023 of Falaknuma PS and the Hon'ble Magistrate
remanded him to judicial custody, he moved bail petitions in
Cr.Nos. 18/2023 of Golconda PS and 35/2023 of Falaknuma PS.
37
The prosecution has filed suitable counters strongly opposing the
grant of bail to him, but the Hon'ble Magistrate granted bail to him
in both the cases and ordered for his release. Subsequently, he
was released from judicial remand on bail.
As seen from his past criminal history, background and
antecedents and also his habitual nature of committing crimes one
after the other and his efforts to come out of the prison, I strongly
believe that if such a habitual criminal is set free, his activities
would not be safe to the society and there is an imminent
possibility of his committing similar offences by violating the bail
conditions in one of the cases, which would be detrimental to
public order, unless he is preventively detained from doing so by
an appropriate order of detention.”
With respect to the stage of proceedings in the offences which form its
basis, the Detention Order states that despite being contested by the
State, bail has been granted to the Detenu in Crimes No. 4 and 5. Insofar
as grant of bail to the Detenu is concerned, the Commissioner states
that:
“I strongly believe that if such a habitual criminal is set free his
activities would not be safe to the society and there is an imminent
possibility of his committing similar offences by violating the bail
conditions in one of the cases, which would be de trimental to
public order, unless he is preventively detained from doing so by
an appropriate order of detention.”
51. We are of the opinion that the aforesaid excerpts from the Detention
Order lay bare the Commissioner’s attempt to transgress his jurisdiction
and to pass an order of detention, which cannot be construed as an order
validly made under the Act. The quoted observations are reflective of the
intention to detain the Detenu at any cost without resorting to due
procedure. It is neither the case of the respondents that the Detenu had
not complied with the terms of the notice issued under section 41-A of
the Cr. PC, nor has it been alleged that the conditions of bail had been
38
violated by the Detenu. It is pertinent to note that in the three criminal
proceedings where the Detenu had been released on bail, no applications
for cancellation of bail had been moved by the State. In the light of the
same, the provisions of the Act, which is an extraordinary statute, should
not have been resorted to when ordinary criminal law provided sufficient
means to address the apprehensions leading to the impugned Detention
Order. There may have existed sufficient grounds to appeal against the
bail orders, but the circumstances did not warrant the circumvention of
ordinary criminal procedure to resort to an extraordinary measure of the
law of preventive detention.
52. In Vijay Narain Singh v s. State of Bihar
20
, Hon’ble E.S.
Venkataramiah, J. (as the Chief Justice then was) observed:
32. ...It is well settled that the law of preventive detention is a
hard law and therefore it should be strictly construed. Care should
be taken that the liberty of a person is not jeopardised unless his
case falls squarely within the four corners of the relevant law. The
law of preventive detention should not be used merely to clip the
wings of an Accused who is involved in a criminal prosecution. It
is not intended for the purpose of keeping a man under detention
when under ordinary criminal law it may not be possible to resist
the issue of orders of bail, unless the material available is such as
would satisfy the requirements of the legal provisions authorising
such detention. When a person is enlarged on bail by a competent
criminal court, great caution should be exercised in scrutinising
the validity of an order of preventive detention which is based on
the very same charge which is to be tried by the criminal court.”
(underlining ours, for emphasis)
20
(1984) 3 SCC 14
39
53. Resonance of these principles are traceable in Banka Sneha Sheela vs .
The State of Telangana
21
. There, while examining an order of
detention passed with reference to 5 (five) offences involving sections
420, 406 and 506 of the IPC, in respect whereof the detenu had obtained
orders of bail/anticipatory bail, this Court had the occasion to say that:
“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.”
(underlining ours, for emphasis)
54. On the ground of consideration of extraneous materials too, the
Detention Order is unsustainable.
55. A pernicious trend prevalent in the state of Telangana has not escaped
our attention. While the Nation celebrates Azadi Ka Amrit Mahotsav to
commemorate 75 years of independence from foreign rule, some police
officers of the said state who are enjoined with the duty to prevent
crimes and are equally responsible for protecting the rights of citizens as
well, seem to be oblivious of the Fundamental Rights guaranteed by the
Constitution and are curbing the liberty and freedom of the people. The
21
(2021) 9 SCC 415
40
sooner this trend is put to an end, the better. Even this Court, in Mallada
K Sri Ram vs. State of Telangana
22
, while deciding an appeal arising
from the state of Telangana, had the occasion to observe:
“17. It is also relevant to note, that in the last five years, this Court
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.
(underlining ours, for emphasis)
56. Interference by this Court with orders of detention, routinely issued
under the Act, seems to continue unabated. Even after Mallada K Sri
Ram (supra), in another decision of fairly recent origin in the case of
Shaik Nazneen vs. The State of Telangana
23
, this Court set aside the
impugned order of detention dated 28
th
October, 2021 holding that
seeking shelter under preventive detention law was not the proper
remedy.
57. It requires no serious debate that preventive detention, conceived as an
extraordinary measure by the framers of our Constitution, has been
rendered ordinary with its reckless invocation over the years as if it were
available for use even in the ordinary course of proceedings. To unchain
22
2022 SCC OnLine SC 424
23
Crl. Appeal No.908 of 2022, dated 22
nd
June 2023
41
the shackles of preventive detention, it is important that the safeguards
enshrined in our Constitution, particularly under the ‘golden triangle’
formed by Articles 14, 19 and 21, are diligently enforced.
58. Now, we proceed to answer the incidental issue raised before us. Seldom
have we found orders of detention continued, after the advice of the
Advisory Board, for less than the maximum period permissible under the
relevant law. Consideration of the matter by the Advisory Board, which
consists of respectable members including retired High Court judges and
those qualified to become High Court judges, was conceived to act as a
safety valve against abuse of power by the detaining authority and/or to
check the possibility of grave injustice being caused to a detenu. It is
one thing to say that the Advisory Board has expressed an opinion that
there is sufficient cause for the detention and, therefore, the detention
has been continued; yet, it is quite another thing to say that the
detention should continue for the maximum permissible period. In the
light of sub-section (2) of section 11 read with sub-section (1) of section
12 of the Act, the period for which the detention should continue is left
to be specified by the Government with the stipulation in section 13
thereof that the maximum period shall be 12 (twelve) months from the
date of detention. This appears on a plain reading of the relevant
statutory provisions. That apart, Mr. Luthra is right in placing reliance on
the concurring judgment authored by Hon’ble B.K. Mukherjea, J. in
Dattatraya Moreshwar Pangarkar vs. State of Bombay
24
that the
24
AIR 1952 SC 181
42
duration for which a detenu is to be kept in detention is for the detaining
authority to decide and not the Advisory Board. The said opinion finds
approval in the decision of the Constitution Bench of this Court in A.K.
Roy vs. Union of India
25
. The period of detention and the terminal
point has, therefore, to be decided by the Government. Having observed
the uncanny consistency of authorities continuing detention orders under
the preventive detention laws for the maximum permissible span of 12
(twelve) months from the date of detention as a routine procedure,
without the barest of application of mind, we think that it is time to say
a few words with a view to dissuade continuation of detention orders till
the maximum permissible duration unless some indication is provided
therefor by the concerned Government in the confirmation order.
59. Article 22(4) of the Constitution provides that a preventive detention law
cannot authorise the detention of a person for a period longer than 3
(three) months unless an Advisory Board has reported before the
expiration of the said period of 3 (three) months that there is, in its
opinion, sufficient cause for such detention. It is followed by a non-
obstante clause which reads thus:
“Provided that nothing in this sub-clause shall authorise the
detention of any person beyond the maximum period prescribed
by any law made by Parliament under sub-clause (b) of clause (7)”
60. What section 13 of the Act, with which we are concerned, provides has
been noticed in one of the preceding paragraphs. However, the regular
practice of the authorities treating the maximum period of detention of
25
(1982) 1 SCC 271
43
12 (twelve) months as the standard duration, in our view, could be
suggestive of a mechanical approach. Inherent in the conferment of
power to extend detention for 12 (twelve) months is the discretion to
make an order to be operative for any period lesser than the maximum
period.
61. Fagu Shaw vs. The State of West Bengal
26
is another Constitution
Bench decision of this Court where challenge was laid to section 13 of
the MISA. It was argued that section 13 is bad because it is violative
of the Fundamental Right under Article 14 of the Constitution for the
reason that it has conferred unlimited discretion on the detaining
authority to fix the period of detention. Repelling the challenge, this
Court held:
“28. *** The maximum period of detention has been fixed by
Section 13 and the discretion to fix the duration within the
maximum has been given to the Government after considering all
the relevant circumstances. Seeing that the maximum period of
detention has been fixed by Section 13 and that the discretion to
fix the period of detention in a particular case has to be exercised
after taking into account a number of imponderable
circumstances, we do not think that there is any substance in the
argument that the power of Government to determine the period
of detention is discriminatory or arbitrary.”
62. In A.K. Roy (supra), the Court echoed the above view by holding that:
“77. Dr Ghatate's objection against Section 13 is that it provides
for a uniform period of detention of 12 months in all cases,
regardless of the nature and seriousness of the grounds on the
basis of which the order of detention is passed. There is no
substance in this grievance because, any law of preventive
detention has to provide for the maximum period of detention,
just as any punitive law like the Penal Code has to provide for the
maximum sentence which can be imposed for any offence. We
should have thought that it would have been wrong to fix a
26
(1974) 4 SCC 152
44
minimum period of detention, regardless of the nature and
seriousness of the grounds of detention. The fact that a person
can be detained for the maximum period of 12 months does not
place upon the detaining authority the obligation to direct that he
shall be detained for the maximum period. The detaining authority
can always exercise its discretion regarding the length of the
period of detention.”
(underlining ours, for emphasis)
63. Whenever an accused is tried for an offence under a penal law which
carries a maximum sentence , the Court is obliged while imposing
sentence to apply its mind to the specific facts and circumstances of
the case and to either impose maximum sentence or a lesser sentence.
It has, therefore, a discretion regarding imposition of sentence. We are
inclined to the view that there could be no warrant for the proposition
that when it boils down to confirming an order of detention under a
preventive detention law, which is not punitive, the Government can
seek immunity and enjoy an unfettered, unguided and unlimited
discretion in continuing detention for the maximum period wi thout
even very briefly indicating its mind as to the “imponderables” that
were taken into account for fixing the maximum period. The very term
“maximum period” in section 13 vests the Government with discretion,
allowing it to be exercised while considering whether the detention is
to be continued for the maximum period of 12 (twelve) months or any
lesser period. In our opinion, the relevant provisions of the Act have to
be so read as to inhere a safeguard against arbitrary exercise of
discretionary power.
45
64. Discretion, it has been held by this Court in Bangalore Medical Trust
vs. B.S. Muddappa
27
, is an effective tool in administration providing
an option to the authority concerned to adopt one or the other
alternative. When a statute provides guidance, or rule or regulation is
framed, for exercise of discretion, then the action should be in
accordance with it. Where, however, statutes are silent and only power
is conferred to act in one or the other manner, the authority cannot act
whimsically or arbitrarily; it should be guided by reasonableness and
fairness. A legislature does not intend abuse of the law or its unfair
use.
65. While considering the validity of an externment order under the
Maharashtra Police Act, 1951, this Court in Deepak vs. State of
Maharashtra
28
held:
“When the competent authority passes an order for the maximum
permissible period of two years, the order of externment must
disclose an application of mind by the competent authority and the
order must record its subjective satisfaction about the necessity
of passing an order of externment for the maximum period of two
years which is based on material on record.”
66. True it is, Deepak (supra) was not a case arising out of preventive
detention laws. However, in situations where discretion is available with
authorities to decide the period of detention, as articulated by Lord
Halsbury in Susannah Sharp vs. Wakefield & Ors.
29
, this discretion
should be exercised in accordance with “the rules of reason and justice,
27
(1991) 4 SCC 54
28
2022 SCC OnLine SC 99
29
[1891] A.C. 173, 179
46
not according to private opinion; according to law, and not humour; it
is to be, not arbitrary, vague, and fanciful, but legal and regular”.
67. We turn to A.K. Roy (supra) once again where the law is expounded
in the following words:
“70. *** We have the authority of the decisions in … for saying
that the fundamental rights conferred by the different articles of
Part III of the Constitution are not mutually exclusive and that
therefore, a law of preventive detention which falls within Article
22 must also meet the requirements of Articles 14, 19 and 21.
***”
68. Having held thus, we are not unmindful of the decision in Vijay Kumar
vs. Union of India
30
where this Court rejected the contention that the
Government had not applied its mind while confirming the detention of
the appellant for the maximum period of 1 (one) year from the date of
detention as prescribed in section 10 of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974. Dealing
with the contention that some reason should have been given why the
maximum period of detention was imposed and while holding it to be
without merit, the main judgment of the presiding judge of the Bench
reasoned that section 10 does not provide that any reason has to be
given in imposing the maximum period of detention and that in
confirming the order of detention it may be reasonably presumed that
the Government has applied its mind to all relevant facts; thus, if the
maximum period of detention has been imposed, it cannot be said that
the Government did not apply its mind to the period of detention. It
30
(1988) 2 SCC 57
47
was also held that in any event section 11 enables revocation and/or
modification of the order by the Government at any time and in the
circumstances, the appellant was in the least prejudiced . The
concurring judgment also took the same view that the authority is not
required to give any special reason either for fixing a shorter period or
for fixing the maximum period prescribed under section 10.
69. Much water has flown under the bridge since then. It is no longer the
law that an administrative authority is under an obligation to give a
reasoned decision only if the statute under which it is acting requires
it to assign reasons. On the contrary, it is only in cases where the
requirement has been dispensed with expressly or by necessary
implication that an administrative authority is relieved of the obligation
to record reasons. Further, the presumption of official acts having been
validly performed cannot be pressed into service for upholding the
period for which the detention would continue if the order of detention
itself suffers from an illegality rendering it unsustainable. That apart,
the reasoning of no prejudice being suffered by the detenu because a
power of revocation/modification is available to the Government would
not be of any consolation if such power were not exercised at all. In
such a case, the prejudice would be writ large. The decision in Vijay
Kumar (supra) is, therefore, distinguishable.
70. Viewed reasonably, the period of detention ought to necessarily vary
depending upon the facts and circumstances of each case and cannot
be uniform in all cases. The objective sought to be fulfilled in each case,
48
whether is sub-served by continuing detention for the maximum
period, ought to bear some reflection in the order of detention; or else,
the Government could be accused of unreasonableness and unfairness.
Detention being a restriction on the invaluable right to personal liberty
of an individual and if the same were to be continued for the maximum
period, it would be eminently just and desirable that such restriction
on personal liberty, in the least, reflects an approach that meets the
test of Article 14. We, however, refrain from pronouncing here that an
order of detention, otherwise held legal and valid, could be invalidated
only on the ground of absence of any indication therein as to why the
detention has been continued for the maximum period. That situation
does not arise here and is left for a decision in an appropriate case.
71. Both Mr. Luthra and Mr. Dave have referred us the recent decision of a
3-Judges Bench of this Court in the case of Pesala Nookaraju vs. The
Government of Andhra Pradesh
31
, where an order of detention
passed in exercise of power conferred by the Andhra Pradesh
Prevention of Dangerous Activities of Boot -leggers, Dacoits, Drug
Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act,
1986 (“1986 Act”, hereafter) was upheld despite the detenu having
obtained orders of bail upon arrest in connection with investigation of
4 (four) F.I.R.s under sections 7B and 8B of the Andhra Pradesh
Prohibition Act, 1995.
31
Crl. Appeal No.2304 of 2023, decided on 16
th
August, 2023
49
72. Mr. Luthra intended to rely on the decision in Cherukari Mani vs.
Chief Secretary, Government of Andhra Pradesh
32
. According to
the appellant, the detention could only be in force for a period of three
months in the first instance and that such order on a periodic
assessment was required to be reviewed for continuous detention till
the maximum period permissible. The contention was accepted by this
Court.
73. While hearing of the appeal was in progress , came the decision in
Pesala Nookaraju (supra) overruling Cherukari Mani (supra). It was
held that the “State Government need not review the orders of
detention every three months after it has passed the confirmatory
order”. Fairly, Mr. Luthra did not seek to rely on Cherukari Mani
(supra) further.
74. However, according to Mr. Dave, the decision in Pesala Nookaraju
(supra) answered the issue under consideration. Reference was made
to a sentence in paragraph 44 where this Court held that:
“44. *** The Act does not contemplate a review of the detention
order once the Advisory Board has opined that there is sufficient
cause for detention of the person concerned and on that basis, a
confirmatory order is passed by the State Government to detain a
person for the maximum period of twelve months from the date
of detention. ***”
75. Mr. Luthra rightly pointed out that the excerpted sentence is part of the
discussion made by this Court while dealing with the first contention of
32
(2015) 13 SCC 722
50
the appellant that the detention order was contrary to the proviso to
section 3(2) of the 1986 Act.
76. Mr. Dave next relied on the reasons assigned in Pesala Nookaraju
(supra) to contend that the impugned Detention Order should be held
legal and unexceptionable.
77. On the merits of the matter, we find the Court in Pesala Nookaraju
(supra) to have found the impugned order of detention to be perfectly
valid. This is borne out by paragraphs 65 and 71 , which we quote
hereunder:
“65. *** if the detention is on the ground that the detenu is
indulging in manufacture or transport or sale of liquor then that
by itself would not become an activity prejudicial to the
maintenance of public order because the same can be
effectively dealt with under the provisions of the Prohibition Act
but if the liquor sold by the detenu is dangerous to public health
then under the Act of 1986, it becomes an activity prejudicial to
the maintenance of public order, therefore, it becomes
necessary for the detaining authority to be satisfied on the
material available to it that the liquor dealt with by the detenu
is liquor which is dangerous to public health to attract the
provisions of the 1986 Act and if the detaining authority is
satisfied that such material exists either in the form of report of
the Chemical Examiner or otherwise, copy of such material
should also be given to the detenu to afford him an opportunity
to make an effective representation.
***
71. In the case on hand, the detaining authority has specifically
stated in the grounds of detention that selling liquor by the
appellant detenu and the consumption by the people of that
locality was harmful to their health. Such statement is an
expression of his subjective satisfaction that the activities of the
detenu appellant is prejudicial to the maintenance of public
order. Not only that, the detaining authority has also recorded
his satisfaction that it is necessary to prevent the detenu
51
appellant from indulging further in such activities and this
satisfaction has been drawn on the basis of the credible material
on record. ***”
78. It is indeed true that the appellant had raised a contention before the
Court that the Government of Andhra Pradesh had directed detention
of the appellant for the maximum period of 12 (twelve) months without
any application of mind or providing reasons as to why this is
necessary.
79. Having read the decision in Pesala Nookaraju (supra), it seems to us
that the Court may not have considered it necessary to deal with the
contention having formed a firm opinion on the materials on record
that the appellant was indulging in activities of selling liquor to
consumers which is harmful for health and, thus, prejudicial to
maintenance of public order. It is on such basis that satisfaction of the
detaining authority for ordering detention commended acceptance of
the Court.
80. On the contrary, we have come to the conclusion on facts that the
activities attributed to the appellant’s husband as such cannot be
branded as prejudicial to maintenance of public order. The decision in
Pesala Nookaraju (supra), therefore, is distinguishable and does not
assist Mr. Dave. We have, thus, no hesitation to reject the contentions
of Mr. Dave.
52
CONCLUSION
81. In view of the foregoing discussion, we cannot uphold the Detention
Order. As a consequence, the impugned judgment and order of the
High Court too cannot be upheld. The Detention Order and the
impugned judgment and order stand quashed. The appeal stands
allowed, without costs.
82. The appellant’s husband, i.e. the Detenu, shall be released from
detention forthwith.
………………………………….J
(SURYA KANT )
.…………………………………J
(DIPANKAR DATTA )
NEW DELHI ;
4
th
SEPTEMBER , 2023.
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