2024 INSC 239 Page 1 of 55

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1738-39 OF 2024

(ARISING OUT OF SLP(CRL.) NOS. 3390-91 OF 2024)

NENAVATH BUJJI ETC. …APPELLANT(S)

VERSUS

THE STATE OF TELANGANA AND ORS. …RESPONDENT(S)

J U D G M E N T

J. B. PARDIWALA, J.: -

For the convenience of the exposition, this judgement is divided in the

following parts: -

INDEX

A. FACTUAL MATRIX .................................................................................... 3

B. IMPUGNED JUDGMENT OF THE HIGH COURT ............................. 15

C. SUBMISSIONS ON BEHALF OF THE APPELLANTS ........................ 17

D. SUBMISSIONS ON BEHALF OF THE RESPONDENTS .................... 20

E. ANALYSIS ................................................................................................... 21

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i. Extraneous Considerations that weighed with the Detaining Authority

thereby vitiating the Order of Preventive Detention. ........................... 34

ii. Summary of the Findings. ....................................................................... 42

iii. The Saga Continues ................................................................................. 45

iv. Role of the Advisory Board ..................................................................... 47

F. CONCLUSION ........................................................................................... 54

1. Leave granted in both the captioned appeals.

2. Since, the issues raised in both the captioned appeals are the same;

both the appellants are co-detenus and the challenge is also to the self-same

judgment and order passed by the High Court those were taken up for

hearing analogously and are being disposed of by this common judgment

and order.

3. For the sake of convenience, the Criminal Appeal No. ……. of 2024

@ SLP (Cri) No. 3390 of 2024 is treated as the lead matter.

4. This appeal is at the instance of a detenu, preventively detained 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,

Page 3 of 55

Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber

Crime Offenders and White Collar or Financial Offenders Act, 1986 (for

short, the “Act 1986”) and is directed against the judgment and order passed

by a Division Bench of the High Court for the State of Telangana at

Hyderabad (Special Original Jurisdiction) dated 16.09.2023 in Writ Petition

No. 26941 of 2023 filed by the appellant herein by which the Division Bench

rejected the writ petition and thereby declined to interfere with the order of

preventive detention passed by the Commissioner of Police Rachakonda

Commissionerate, State of Telangana dated 12.09.2023 in exercise of his

powers under Section 3(2) of the Act 1986.

A. FACTUAL MATRIX

5. The order of detention dated 12.09.2023 passed by the respondent No.

2 herein reads thus:

“ORDER OF DETENTION

ORDER OF DETENTION UNDER SUB SECTION (2) OF

SECTION 3 OF THE “TELANGANA PREVENTION OF

DANGEROUS ACTIVITIES OF BOOTLE GGERS, DACOITS,

DRUG-OFFENDERS, GOONDAS, IMMORAL TRAFFIC

OFFENDERS, LAND -GRABBERS, SPURIOUS SEED

OFFENDERS, INSECTICIDE OFFENDERS, FERTILI SER

OFFENDERS, FOOD ADULTERATION OFFEND ERS, FAKE

DOCUMENT OFFENDERS, SCHEDULED COMMODITIES

OFFENDERS, FOREST OFFENDERS, GAMING OFFENDERS,

SEXUAL OFFENDERS, EXPLOSIVE SUBSTANCES

OFFENDERS, ARMS OFFENDERS, CYBER CRIME

Page 4 of 55

OFFENDERS AND WHITE COLLAR OR FINANCIAL

OFFENDERS ACT, 1 OF 1986 (AMENDMENT ACT NO. 13 OF

2018)”.

WHEREAS, information has been placed before me that the

offender “Nenavath Ravi S/o. Nenavath Jagan, Age: 23 years,

Occ: Coolie, R/o. Indiranagar Colony, Chandrayanagutta,

Hyderabad, N/o. Padamati Thanda village, Neredugumma

Mandal, Nalongda Dist” is a “Goonda” as defined in clause (g)

of Section 2 of the “Telangana prevention of dangerous activities

of bootleggers, dacoits, drug-offenders, goondas, immoral traffic

offenders, land-grabbers, spurious seed offenders, insecticide

offenders, fertilizer 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, 1 of 1986 (Amendment Act

No. 13 of 2018)” and that he has been habitually engaging himself

in unlawful acts and indulging in committing of Robberies,

Property theft offences and Gold Chain Snatchings including

sacred Mangalsutras from women folk by using criminal force on

Public roads in broad day light continuously, repeatedly in one

Police Station limits of Madgul PS, Rachakonda Commissionerate

& Other PSs of Nalgonda District, thereby creating large scale

fear and panic among the General public especially women and

thus his activities are prejudicial to the maintenance of Public

Order and affected society adversely.

In the recent past, during the year 2023, in quick succession, the

proposed detenu along with his associates was involved in (04)

offences under penal sections covered by Chapter-XVII of Indian

Penal Code, 1860, vide Cr.Nos 1) 129/2023 U/s 379 IPC of PS

Chinthapally, 2) 39/2023 U/s 394 IPC of Madgul P.S. 3) 106/2023

U/s 356, 379 IPC of Chinthapally P.S. and 4) 107/2023 U/s 392

IPC of Madgul P.S. of Rachakonda Commissionerate.

Among the above offences, (02) offences vide Cr. Nos. 1) 129/2023

and 2) 106/2023 were reported to be out of this Commissionerate

limits and as above (02) offences committed by the proposed

Page 5 of 55

detenu are referred to as criminal history of the proposed detenu

and not relied upon..

The remaining (02) offences pertaining to this Commissionerate

vide Cr Nos: 1) 39/2023, 2) 107/2023 of Madgul P.S. are

considered as grounds for his detention.

The offender/proposed detenu committed all the above Property

theft offences/gold chain snatching offences continuously,

repeatedly in quick succession and fall within proximity period and

committed in one police station limits i.e. Madgul PS.

The offender/proposed detenu along with his associates has been

committing offences continuously, and repeatedly in order to earn

easy money to lead lavish life, which are punishable under chapter

XVII of Indian Panel Code. He is also committing illegal acts

(thefts) involving breach of peace and public tranquility. The

continuous presence of the offender in the area is detrimental to

the maintenance of Public Order, apart from disturbing the peace,

tranquility and social harmony in the society.

WHEREAS, I, D.S. Chauhan, IPS, Commissioner of Police,

Rachakonda, am satisfied from the material placed before me that

the offender Nenavath Ravi, is a Goonda as defined in clause (g)

of Section 2 of the “Telengana prevention, detention Act, 1 of 1986

(Amendment Act No. 13 of 2018)”

As per the clause (g) of section 2 of the “Telangana prevention,

detention Act, 1 of 1986 (Amendment Act No. 13 of 2018)” a

“Goonda” means “a person, who either by himself or a member

of or leader of gang, habitually commits or attempts to commit or

abets the commission of offences, which are punishable under

Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal

Code”.

All the offences committed by the offender punishable under penal

sections of Chapter XVII of the Indian Penal Code, 1860”. As

such, criminal activities of the offender fall within the ambit of sec.

2(g) of the Act 1 of 1986 to term him as a “Goonda” from Madgul

PS of Rachakonda Commissionerate.

Page 6 of 55

WHEREAS, I D.S. Chauhan, I.P.S., Commissioner of Police,

Rachakonda, am aware that the Police Madgul arrested the

offender/proposed detenu Nenavath Ravi on 12-18-2023 at 1230

hours in Cr.No. 107/2023 of PS Madgul and produced before the

Hon’ble JFCM at Amangal for judicial remand and lodged in

Central Prison Cherlapally. In remaining ground case, he was

produced before the Court by executing PT warrant on

24.08.02023 and lodged in the jail.

In pursuance of his confession, Police seized stolen booty i.e. 1)

Honda Shine Motor Cycle Br No: TS 05 EZ 6413 pertaining to Cr

No. 129/2023 of PS Chintapally from the house of his relative in

Manneguda village at his instance in the presence of mediators.

Further, the investigating Officer seized 1) One Auto bearing No:

TS 12 UA 7860, 2) One Splendor Plus bike bearing No.: TS 05 FK

9086 which were used for commission of offences have also been

seized from the possession of his associates at his instance. In

addition, Gold jewellery in all cases totaling 11.7 tolas was also

seized from the possession of his associate Munavath Ramesh (A-

1) at the instance of this proposed detenu and other associates.

WHEREAS, I am aware that the offender/proposed detenu field 1

st

bail petition in Cr No: 107/2023 of PS Madgul before the Hon’ble

JFCM at Amangal on 17-08-2023 vide Crl MP No: 285/2023.

Police filed counter and prosecution opposed not to grant bail to

him. Accordingly, the bail petition was dismissed on 24-08-2023.

The proposed detenue again filed fresh bail petition in two ground

cases vide Cr Nos: 1) 39/2023 of PS Madgul, 2) 107/2023 of PS

Madgul before the Hon’ble JFCM at Amangal. Police filed

counters opposing to grant bail. Even though, both the bail

petitions were allowed by granting conditional bail to the

proposed detenu on 05-09-2023 vide Crl MP Nos: 1) 337/2023, 2)

307/2023. Consequently, he was released in two ground cases vide

release order Dis Nos: 1) 1741/2023, 2) 1742/2023 respectively.

He was also granted bail in all other remaining history cases and

consequently released from jail after furnishing sureties.

Page 7 of 55

The conditions imposed by the Court in two ground cases are i)

The offender/proposed detenu shall not tamper the

witnesses/victim during the course of further investigation, ii) he

is directed to appear before the Court as and when directed

without fail, iii) He is directed not to leave the State without

permission of the Court.

I have perused all the above conditions of the bail and however,

those conditions do not affect of passing the order of detention on

this proposed detenu.

On account of his antecedents, bail orders granted therein and

consequently released from jail, the way he was indulging in

committing chain snatching offences including sacred mangal

sutras (Nuptial Chains) continuously from the neck of women folk

forcibly having felt that the cases registered against him under the

ordinary law have no deterrent effect in curbing his prejudicial

activities, and having believed strongly that he is not amenable to

ordinary law and as such, having satisfied that there is an

imminent possibility of the proposed detenu indulging in similar

prejudicial activities against, which would be prejudicial to the

maintenance of Public Order, unless he is prevented from doing so

by an appropriate order of detention.

Now therefore, in exercise of the powers conferred on me under

sub section (2) of Section 3 of the “Telangana prevention,

detention Act 1 of 1986 (Amendment Act No. 13 of 2018)” R/w

G.O. Rt. No. 792, General Administration (Spl. Law & Order)

Department, Dated : 29-05-2023, I do hereby order that the

accused/proposed detenu Nenavath Ravi, who is a “Goonda” be

detained from the date of service of this order on him and lodge in

Central Prison, Cherlapally Medchal Dist.”

6. The grounds of detention dated 12.09.2023 furnished to the appellant

herein along with the order of detention referred to above read thus: -

Page 8 of 55

“GROUNDS FOR DETENTION IN RESPECT OF NENAVATH

RAVI UNDER THE “ TELANGANA PREVENTION OF

DANGEROUS ACTIVITIES OF BOOTLE GGERS, DACOITS,

DRUG-OFFENDERS, GOONDAS, IMMORAL TRAFFIC

OFFENDERS, LAND -GRABBERS, SPURIOUS SEED

OFFENDERS, INSECTICIDE OFFENDERS, FERTILI SER

OFFENDERS, FOOD ADULTERATION OFFEND ERS, 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, 1 OF 1986 (AMENDMENT ACT NO. 13 OF

2018)”

You, Nenavath Ravi S/o. Nenavath Jagan, Age: 23 years, Occ:

Coolie, R/o Indiranagar Colony, Chandrayanagutta, Hyderabad,

N/o. Padamati Thanda village, Neredugumma Mandal, Nalongda

District are a “Goonda” as defined in clause (g) of section 2 of the

“Telangana prevention of dangerous activities of bootleggers,

dacoits, drug-offenders, goondas, immoral traffic offenders, land-

grabbers, spurious seed offenders, insecticide offenders, fertilizer

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 1 of 1986 (Amendment Act no. 13 of 2018)” and that

you have been habitually engaging yourself in unlawful acts and

indulging in committing of Property Offences, Robberies/Gold

Chain Snatching offences including sacred Mangalasutras by

using criminal force on women folk in Public streets continuously,

repeatedly in one localised area in Madgul PS limits and thereby,

creating widespread fear, panic among the general public and thus

your activities are prejudicial to the maintenance of Public Order

and adversely affecting the society.

Thus, in the recent past, during the year 2023, in quick succession,

you along with your associates were involved in (04) offences

under penal sections covered by Chapter XVII of Indian Penal

Code, 1860, vide Cr.Nos.) 129/2023 U/s 379 IPC of PS

Page 9 of 55

Chinthapally, 2) 39/2023 U/s 394 IPC of Madgul P.S. 3) 106/2023

Us 356, 379 IPC of Chinthapally PS and 4) 107/2023 U/s 392 IPC

of Madgul P.S.

Among the above offences, (02) offences vide Cr Nos: 1) 129/2023,

2) 106/2023 were reported to be out of this Commissionerate limits

and as such the above (02) offences committed by you are referred

to as criminal history and not relied upon..

The remaining (02) offences committed by in Rachakonda

Commissionerate limits vide Cr Nos: 1) 39/2023, 2) 107/2023 of

Madgul P.S. are considered as grounds for your detention.

You had committed all the above property theft offences including

gold chain snatching offences continuously, repeatedly and in

quick succession which are falling within proximity period.

Thus, you have been committing offences continuously, and

repeatedly in order to earn easy money to lead lavish life, which

are punishable under Chapter XVII of Indian penal Code. You are

also committing illegal acts (thefts) involving breach of peace and

public tranquility. Your continuous presence in the area is

detrimental to the maintenance of public order apart from

disturbing the peace, tranquility and social harmony in the society.

THE FACTS OF THE FOLLOWING (02) ROBBERIES,

THEFTS/CHAIN SNATCHING OFFENCES COMMITTED BY

YOU IN THE RECENT PAST WHICH AMPLY DEMONSTRATE

YOUR HABITUAL NATURE OF COMMITTING CRIME

CREATING LARGE SCALE FEAR IN THE MINDS OF WOMEN

COMMUNITY THEREBY RESTRAINING TH EM FROM FREELY

MOVING ON PUBLIC STREETS EVEN DURING BROAD DAY

LIGHT AND YOUR ACTIVITIES ARE PREJUDICIAL TO THE

MAINTENANCE OF PUBLIC ORDER

1) Cr.No. 39/2023 U/s 394 IPC of Madgul Police Station Dt: 20-03-

20223

Facts of the case are that on 20.03.2023 at 19.45 hrs received a

complaint from the complainant/victim Kuntala Laxmamma S/o

Page 10 of 55

Anjaiah, Age 55 years, Occ: Sweeper, R/o Kolkulapally (V),

Madgul (M), R.R (D) in which she stated that on 20.03.2023 at

about 1800 hrs, while the complainant was on her way laid from

her work place in Sri Mahalaxmi Rice Mill at Kolkulapally Gate,

en-route near Jaanam well, three unknown persons aged about 25-

30 years followed from her behind and started pretending as

searching for Toddy, and thus, they suddenly pounced on her,

pasted a plaster on her mouth and tried to remove her silver cups

(vendi Kadiyalu) from her legs. But, they could not succeed and as

such they robbed Rs. 7550/- from her tiffin carrier box and fled

away from the place. Further, she added that she can identify them

if she sees them again. Hence, she requested to take necessary

action against the persons.

Basing on the above contents, a case in Cr No: 39/2023 U/s 394

IPC has been registered and taken up investigation.

During the course of investigation, the IO visited the scene of

offence and recorded the details of the scene of offence observation

in Crime Details Form (CDF). IO examined the complainant,

other witnesses who got panicked on seeing the incident in broad

day light and recorded their detailed statements.

While the investigation was in progress, it was detected by

arresting the accused/proposed detenu in Cr No. 107/2023 u/s 392

IPC of Madgul PS on 12-08-2023. During the examination, he

confessed his guilt of offence of the above case and other offences

as well. The offender/propose detenu confessed that they spent

entire booty for their lavish expenses.

Role & participation of this proposed detenu:-

It was made out that the offender/proposed detenu Nenavath Ravi

(A-3) was sitting in rear side seat of the auto along with A-4 and

they noticed a lady near Kolakulapalli village outskirts, Madgul

after passing some distance A-1 Ramesh was driving the auto they

forcibly took her into the bushes and when A-4 Munavath Naresh

caught her legs and then proposed detenu A-3 Nenavath Ravi

caught her hands and A-1 tried to rob her silver anklets but A-1

could not remove the same and as last resort, he committed theft of

Page 11 of 55

Rs. 7,550/- from the complainant tiffin box and fled away into the

auto. They spend entire booty for their lavish expenses.

As such, he was produced before the Hon’ble Court by executing

PT warrant on 24-08-2023 and thus regularized his arrest in the

case. The case is UI for collecting further evidence.

2) Cr. No. 107/2023 U/s 392 of Madgul Police Station, Dt: 01-08-

2023

Facts of the case are that on 01-08-2023 at 1700 hours received a

complaint from the complainant Smt. Nutanaganti Pullama W/o

late Rama Lingaiah Age: 80 years R/o Madgul (V) & (M), R.R (D)

in which she stated that on 01.08.2023 at about 1430 hours when

she was sitting in front of her house and in the meantime one

unknown person age about 20-30 years came to her by foot and all

of a sudden he robbed her two rows Gold Nuptial Chain weighing

about 03 tolas and fled away on the bike on which another

unknown person was already waiting and both of them escaped on

the bike towards Mall route. The person who robbed her gold chain

had worn yellow colour shirt and while she raised screams, her

neighbour Gandikota Jangaiah came there, but at the time both the

persons escaped away from there. The complainant further stated

that she can identify them if she sees them again. Hence the

complainant requested to take necessary action.

Basing on the above contents, a case in CR No. 107/2023 U/s 356,

379 IPC has been registered and subsequently altered to Section

392 IPC.

During the course of Investigation, Police visited the scene of

offence and recorded the details of the scene of offence

observations in Crime Details Form (CDF). The IO examined the

complainant and other witnesses and recorded their detailed

statements.

Further, collected CC footages from the vicinity of crime scene

analysed the same and through which it was identified the offender

Munavath Ramesh and his associate while they were having a

Page 12 of 55

recce. Upon that the IO setup informants and deputed search

parties to locate the offenders.

While the investigation was in progress, the police Madgul

arrested the offender/proposed detenu Nenavath Ravi on 12-08-

2023 at 1230 hours Cr. No. 107/2023 of PS Madgul and produced

before the Hon’ble JFCM at Amangal for judicial remand and

lodged in Central Prison Cherlapally.

In pursuance of his confession, police seized stolen booty i.e. 1)

Honda Shine Motor Cycle BR No: TS 05 EZ 6413 pertaining to Cr

No. 129/20232 of PS Chintapally from the house of his relative in

Manneguda village at his instance in the presence of mediators.

Further, the investigating Officer seized 1) One Auto bearing No:

TS 12 UA 7860, 2) One Splendor Plus bike bearing No: TS 05 FK

9086 which were used for commission of offences have also been

seized from the possession of his associates at his instance. In

addition, Gold jewellery in all cases totaling 11.7 tolas was also

seized from the possession of his associate Munavath Ramesh (A-

1) at the instance of this proposed detenu and other associates. The

case is UI for collecting further evidence.

Linking Evidence:

i) In pursuance of his confession, Police seized stolen booty i.e. Gold

pusthelathadu weighing about (03) tolas from the position of his

associate Munnavat Ramesh A-1 at his instance.

ii) CC footages collected from the vicinity of crime scene. It can be

seen his associates while they were having recce. The above

evidence establishes the involvement of proposed detenu.

Role & participation of this proposed detenu:

In this case, while the proposed detenu along with A4 Munavath

Naresh was waiting on Sagar Highway, the offenders A-1, A2 went

near the victim and forcibly robed her gold nuptial chain weighing

about (03) tolas from the neck of victim woman and reached to A-

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3 (propose detenu) and A-4. They gave stolen booty to A-3 and A-

4 and disbursed from the spot on their vehicles.

As per clause (g) of section 2 of the “Telangana prevention,

detention Act 1 of 1986 (Amendment Act No. 13 of 2018)” a

“Goonda” means “a person who either by himself or as a member

of or leader of gang, habitually commits or attempts to commit or

abets the commission of offences, which are punishable under

Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal

Code”.

You have been indulging in the offences falling under chapter XVII

of IPC and you are habitually indulging in criminal activities in a

manner prejudicial to the maintenance of Public Order and

enforcement of ordinary penal laws could not prevent you from

indulging in such activities.

After having come to know about criminal activities of proposed

detenu through media and on account of chain snatching

offences that were taken place in a small village of Madgul in the

Commissionerate limits in recent past, the General Public

especially women folk those who are going for work on daily

wages in the area got panicked and apprehended fear of coming

out of their houses by wearing even their sacred Gold Nuptial

Threads which is sentiment to large section of Indian women.

Thus, the incidents created panic in the minds of general public

living in Madgul village and thereby your criminal activities are

adversely affecting the Public Order and leaving large section of

people under the grip of fear and shock. Therefore, your

activities are required to be prevented by an appropriate

detention order.

WHEREAS, I am aware that you have filed 1

st

bail petition in Cr

No.: 107/2023 of PS Madgul before the Hon’ble JFCM at Amangal

on 07-08-20 23 vide Crl MP No. 285/2023. Police filed counter

and prosecution opposed not to grant bail to you. Accordingly, the

bail petition was dismissed on 24-08-2023.

You have again filed fresh bail petitions in two ground cases vide

CR Nos: 1) 39/2023 of PS Madgul, 2) 107/2023 of PS Madgul

Page 14 of 55

before the Hon’ble JFCM at Amangal. Police filed counters

opposing to grant bail. Even though, the bail petitions were

allowed by granting conditional bail to you on 05-09-2023 vide

Crl Mp Nos: 1) 337/2023, 2) 307/2023. Consequently, you were

released in two ground cases vide release order Dis Nos: 1)

1741/2023, 2) 1742/2023 respectively. You were also granted bail

in all other remaining history cases and consequently released

from jail after furnishing sureties.

The conditions imposed by the Court in two ground cases are i)

The offender/proposed detenu shall not tamper the

witnesses/victim during the course of further investigation, ii) he

is directed to appear before the court as and when directed without

fail, iii) He is directed not to leave the state without permission of

the Court.

I have perused all the above conditions of the bail and however,

those conditions do not affect of passing the order of detention

On account of your antecedents, bail orders granted therein and

consequently released from jail, the way you were indulging in

committing chain snatching offences including sacred mangal

sutras (nuptial chains) continuously from the neck of women folk

forcibly, having felt that the cases registered against you under the

ordinary law have no deterrent effect in curbing your prejudicial

activities and having believed strongly that you are not amenable

to ordinary law and as such, having satisfied that there is an

imminent possibility of indulging in similar prejudicial activities

again, which would be prejudicial to the maintenance of Public

Order unless you are prevented from doing so by an appropriate

order of detention.

Hence, I am satisfied that a detention Order under the provisions

of the “Telangana prevention, detention Act 1 of 1986 (Amendment

Act no. 13 of 2018) should be invoked against you, and you should

be detained under sub-section (2) of section 3 of Act No. 1 of 1986

(Amendment Act No. 13 of 2018)” R/w G.O. Rt. No. 792, General

Administration (Spl. Law & Order) Department, Dated 29-05-

2023 with a view to prevent you from acting in any manner

prejudicial to the maintenance of public order

Page 15 of 55

You have a right to represent against this order of Detention to the

1) Detaining authority i.e. the Commissioner of Police,

Rachakonda, 2) The Principal Secretary to Government (Political)

General Administration Dep. Telangana, Hyderabad and 3) The

Advisory Board or if you choose to make any representation, you

may submit your representation with sufficient number of copies to

the Jail Superintendent for onward transmission. You also have a

right to appear before the Advisory Board and also to avail the

assistant of a person other than a lawyer to represent your case.”

7. Thus, from the aforesaid it is evident that the respondent No. 2 herein

was subjectively satisfied based on the materials on record that the activities

of the appellant detenu were prejudicial to the maintenance of public order.

According to the Detaining Authority, i.e., the respondent No. 2, the

appellant is a “GOONDA” as defined under Section 2(g) of the Act 1986

and with a view to preventing him from acting in any manner prejudicial to

the maintenance of public order, it was felt necessary that the appellant be

preventively detained.

B. IMPUGNED JUDGMENT OF THE HIGH COURT

8. The appellant detenu being aggrieved by the order of preventive

detention preferred Writ Petition No. 26941 of 2023 in the High Court for

the State of Telangana at Hyderabad seeking a writ of Habeas Corpus. The

Page 16 of 55

High Court vide its impugned judgment and order declined to interfere and

accordingly rejected the writ petition.

9. The High Court while rejecting the writ application filed by the

appellant detenu made the following observations: -

“16. While passing the detention order, the detaining authority

not only considered the commission of offences committed by the

detenus and their associates, but also considered its impact

disturbing ‘public order’ and also the modus operandi adapted by

them in commission of offences. Therefore, in order to prevent the

detenus from committing similar offences, the impugned detention

order was passed.

xxx xxx xxx

21. As discussed above, the detenus have committed the

aforesaid two (02) offences of robbery and chain snatchings and

creating panic and scare among the public, especially in women

folk. Thus, they have engaged in unlawful activities by committing

the said bodily and property offences, which are serious and grave

in nature, and thereby acting in a manner prejudicial to the

maintenance of ‘public order’ as it disturbs peace and tranquility

in the society. Further, the police also seized motorbikes used in

commission of the offences.

22. In view of the same, it is clear that the said acts committed

by the detenus would certainly create large scale panic in general

public, more particularly women folk. All the said aspects were

considered by the detaining authority while passing detention

order. The aspects of modus operandi and the acts committed by

the detenus and their associates in commission of offences and

filing of petitions by the police seeking cancellation of bail granted

to the detenus were also considered by the detaining authority

while passing detention order. Therefore, viewed from any angle,

we are of the considered view that there is no error in impugned

Page 17 of 55

detention orders dated 12.09.2023 passed by the respondent No. 2

and the consequential approval orders passed by respondent No. 1

vide G.O.Rt. NOs. 1305 and 1306 dated 20.09.2023 respectively.

Thus, the writ petitions fail and the same are liable to be

dismissed.”

10. Thus, the plain reading of the aforesaid line of reasoning adopted by

the High Court would indicate that as the appellant detenu had engaged

himself in unlawful activities of serious nature he could be said to have acted

in a manner prejudicial to the maintenance of public order. The line of

reasoning as above gives an impression that what weighed with the High

Court are the allegations of chain snatching creating lot of fear and panic in

the minds of the women folk. This according to the High Court was

sufficient to reach to the conclusion that the alleged antisocial activities of

the appellant detenu are prejudicial to the maintenance of the public order.

11. In such circumstances referred to above, the appellant detenu is here

before this Court with the present appeal.

C. SUBMISSIONS ON BEHALF OF THE APPELLANTS

12. Mr. P. Mohith Rao, the learned counsel appearing for the appellant

detenu made the following submissions:

a. Mere registration of FIRs for the offences punishable under Chapter

XVII of the Indian Penal Code (“IPC”) is not sufficient to label or brand

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any individual as a “GOONDA” as defined under Section 2(g) of the Act

1986. In other words, mere registration of the FIRs for the offences of

theft, robbery etc. is not sufficient to arrive at the subjective satisfaction

that the alleged activities of the appellant detenu are prejudicial to the

maintenance of public order.

b. As per the explanation to Section 2(a) of the Act 1986, the activities in

question must cause “harm, danger or alarm or a feeling of insecurity

among the general public or any section thereof to be prejudicial to public

order”.

c. The criminal cases which have been registered against the appellant

detenu involve the ordinary “law and order” problems or situations. The

appellant detenu was granted bail in all the FIRs registered against him

after giving an opportunity of hearing to the State. If it is the case of the

State that the appellant detenu continued to indulge in the anti-social

activities, the State ought to have approached the concerned court for

cancellation of bail. Issuance of a preventive detention order which

drastically curtails the appellant’s right to liberty under Article 21 of the

Constitution is certainly neither the most suitable nor the least restrictive

method of preventing the appellant from engaging in any further criminal

activities.

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d. The impugned order of preventive detention suffers from the vice of total

non-application of mind. The impugned order of detention could be said

to have been vitiated on account of the extraneous matters being

considered by the Detaining Authority. In the impugned order of

detention the detaining authority has stated that the appellant detenu is a

habitual offender as many FIRs have been registered against him,

however, the Detaining Authority thought fit to take into consideration

only two FIRs out of the four FIRs as the other two FIRs were registered

outside the Commissionerate limits of the Detaining Authority. In other

words, the offences alleged with respect to the two FIRs (not taken into

consideration) were not committed within the Commissionerate limits of

the Detaining Authority. This is suggestive of the fact that the detaining

authority took into consideration the “history-sheet” of the detenu

without recording any subjective satisfaction that such habituality has

created a “public disorder”. Merely, because the appellant detenu has

been charged for multiple offences it cannot be said that he is in the habit

of committing such offences. Habituality of committing offences cannot,

in isolation, be taken as a basis of any detention order; rather it has to be

tested on the matrices of public order.

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13. In such circumstances referred to above, the learned counsel prayed

that the impugned judgment and order passed by the High Court be set side

and as a consequence, the impugned order of preventive detention may also

be quashed and set aside and the authorities concerned may be directed to

release the appellant detenu forthwith from the detention.

D. SUBMISSIONS ON BEHALF OF THE RESPONDENTS

14. Mr. Kumar Vaibhav, the learned counsel appearing for the respondent

made the following submissions:

a. No error much less an error of law could be said to have been committed

by the High Court in passing the impugned judgment and order.

b. The order of preventive detention came to be passed by the Detaining

Authority after due consideration of the entire material placed before him

in the form of FIRs, CCTV camera footage, statements of various

witnesses recorded in the course of the investigations, confessions of the

appellant detenu before the police as regards the alleged crime, etc. It

cannot be said that there was no material worth the name before the

Detaining Authority to arrive at the subjective satisfaction that the

activities of the appellant detenu are prejudicial.

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c. Indulging repeatedly, in the activity of snatching of gold chains from the

necks of women folk has created an atmosphere of panic and scare in the

locality.

15. In such circumstances referred to above, the learned counsel prayed

that there being no merit in this appeal, the same may be dismissed.

E. ANALYSIS

16. Having heard the learned counsel appearing for the parties and

having gone through the materials on record the only question that falls for

our consideration is whether the High Court committed any error in rejecting

the writ petition filed by the appellant detenu and thereby affirming the order

of preventive detention passed by the Detaining Authority?

17. Section 2(a) of the Act 1986 reads thus:

“(a) “acting in any manner prejudicial to the maintenance of

public order” means when a boot-legger, a dacoit, a drug-

offender, a goonda, an immoral traffic offender, Land-Grabber, a

Spurious Seed Offender, an Insecticide Offender, a Fertiliser

Offender, a Food Adulteration Offender, a Fake Document

Offender, a Scheduled Commodities Offender, a Forest Offender, a

Gaming Offender, a Sexual Offender, an Explosive Substances

Offender, an Arms Offender, a Cyber Crime Offender and a White

Collar or Financial Offender is engaged or is making preparations

for engaging, in any of his activities as such, which affect

adversely, or are likely to affect adversely, the maintenance of

public order:

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Explanation:- For the purpose of this clause public order shall

be deemed to have been affected adversely or shall be deemed

likely to be affected adversely inter alia, if any of the activities of

any of the persons referred to in this clause directly, or indirectly,

is causing or calculated to cause any 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”

18. Section 2(g) of the Act 1986 defines the term “GOONDA”:

“(g) “goonda” means a person, who either by himself or as a

member of or leader of a gang, habitually commits, or attempts to

commit or abets the commission of offences punishable under

Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal

Code;”

19. The Act 1986, has been enacted with a clear object to prevent crime

and to protect the society from the anti-social elements and dangerous

characters by placing them under detention for such a duration as would

disable them from resorting to undesirable criminal activities. The

provisions of the Act 1986 are intended to deal with habitual criminals,

dangerous and desperate outlaws, who are so hardened and incorrigible that

the ordinary provisions of the penal laws and the mortal/moral fear of

punishment for crime are not sufficient deterrence for them.

20. The law is well settled that the power under any enactment relating to

preventive detention has to be exercised with great care, caution & restraint.

In order to pass an order of detention under the Act 1986 against any person,

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the Detaining Authority must be satisfied that he is a “GOONDA” within

the meaning of Section 2(g) of the Act 1986, who either by himself or as a

member of or a leader of a gang habitually commits or attempts to commit

or abets the commission of offences punishable under Chapter XVI or

Chapter XVII or Chapter XXII of the IPC as according to the explanation to

Section 2(a) of the Act 1986, it is such a “GOONDA” who for the purpose

of Section 2 of the Act 1986 shall be deemed to be a person “acting in any

manner prejudicial to the maintenance of public order” and against whom

an order of detention may lawfully be made.

21. Further, sub-section (1) of Section 3 confers power on the State

Government and a District Magistrate or a Commissioner of Police as the

case may be under the direction of the State Government to detain a person

on being satisfied that it is necessary to do so with a view to prevent him

from acting in any manner prejudicial to the maintenance of “public order”.

22. In the aforesaid context, we may refer to a decision of this Court in

Pushkar Mukherjee v. State of West Bengal reported in (1969) 1 SCC 10:

“13. …Does the expression “public order” take in every kind of

infraction of order or only some categories thereof. It is manifest

that every act of assault or injury to specific persons does not lead

to public disorder. When two people quarrel and fight and assault

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each other inside a house or in a street, it may be said that there is

disorder but not public disorder. Such cases are dealt with under

the powers vested in the executive authorities under the provisions

of ordinary criminal law but the culprits cannot be detained on the

ground that they were disturbing public order. The contravention

of any law always affects order but before it can be said to affect

public order, it must affect the community or the public at large. In

this connection we must draw a line of demarcation between

serious and aggravated forms of disorder which directly affect the

community or injure the public interest and the relatively minor

breaches of peace of a purely local significance which primarily

injure specific individuals and only in a secondary sense public

interest. A mere disturbance of law and order leading to disorder

is thus not necessarily sufficient for action under the Preventive

Detention Act but a disturbance which will affect public order

comes within the scope of the Act. …”

(Emphasis supplied)

23. The explanation attached to Section 2(a) of the Act 1986 reproduced

above contemplates that ‘public order’ shall be deemed to have been affected

adversely or shall be deemed likely to be affected adversely, inter alia if any

of the activities of any person referred to in Section 2(a) directly or

indirectly, are causing or is likely to cause any harm, danger or alarm or

feeling of insecurity among the general public or any section thereof or a

grave or widespread danger to life, property or public health. The

Explanation to Section 2(a) also provides that for the purpose of Section 2,

a person shall be deemed to be “acting in any manner prejudicial to the

maintenance of public order” when such person is a “GOONDA” and

engaged in activities which affect adversely or are likely to affect adversely

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the maintenance of public order. It, therefore, becomes necessary to

determine whether besides the person being a “GOONDA” his alleged

activities are such which adversely affected the public order or are likely to

affect the maintenance of public order.

24. 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. The basis of detention is the satisfaction of the executive about

the likelihood of the detenu acting in a manner, similar to his past acts, which

is likely to affect adversely the maintenance of public order and, thereby

prevent him, by an order of detention, from doing the same. A criminal

conviction on the other hand is for an act already done which can only be

possible by a trial and legal evidence. There is no parallel between the

prosecution in a Court of law and a detention order under the Act 1986. One

is a punitive action and the other is a preventive act. In one case a person is

punished on proof of his guilt, and the standard is proof beyond the

reasonable doubt, whereas in the other a person is detained with a view to

prevent him from doing such act(s) as may be specified in the Act

authorizing preventive detention.

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25. The power of preventive detention is qualitatively different from

punitive detention. The power of preventive detention is a precautionary

power exercised in reasonable anticipation. It may or may not relate to an

offence. It is not a parallel proceeding. It does not overlap with prosecution

even if it relies on certain facts for which prosecution may be launched or

may have been launched. An order of preventive detention, may be made

before or during prosecution. An order of preventive detention may be made

with or without prosecution and in anticipation or after discharge or even

acquittal. The pendency of prosecution is no bar to an order of preventive

detention. An order of preventive detention is also not a bar to prosecution.

(See : Haradhan Saha v. The State of W.B., 1974 Cri LJ 1479]

26. In Halsbury's Laws Of England, it is stated thus:—

“The writ of habeas corpus ad subjiciendum” unlike other writs,

is a prerogative writ, that is to say, it is an extraordinary remedy,

which is issued upon cause shown in cases where the ordinary

legal remedies are inapplicable or inadequate. This writ is a writ

of right and is granted ex debito justitiate. It is not, however, a writ

of course. Both at common law and by statute, the writ of habeas

corpus may be granted only upon reasonable ground for its issue

being shown. The writ may not in general be refused merely

because an alternative remedy by which the validity of the

detention can be questioned. “Any person is entitled to institute

proceedings to obtain a writ of habeas corpus for the purpose of

liberating another from an illegal imprisonment and any person

who is legally entitled to the custody of another may apply for the

writ in order to regain custody. In any case, where access is denied

to a person alleged to be unjustifiably detained, so that there are

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no instructions from the prisoner, the application may be made by

any relation or friend on an affidavit setting forth the reason for it

being made.”

27. In Corpus Juris Secundum, the nature of the writ of habeas corpus is

summarized thus: —

“The writ of habeas corpus is a writ directed to the person

detaining another, commanding him to produce the body of the

prisoner at a designated time and place with the day and cause of

his caption and detention to do, submit to, and receive whatsoever

the court or judge awarding the writ shall consider in that behalf.”

‘Habeas corpus’ literally means “have the body”. By this writ, the

court can direct to have the body of the person detained to be

brought before it in order to ascertain whether the detention is

legal or illegal. Such is the predominant position of the writ in the

Anglo-Saxon Jurisprudence.”

28. In Constitutional and Administrative Law By Hood Phillips &

Jackson, it is stated thus:—

“The legality of any form of detention may be challenged at

common law by an application for the writ of habeas corpus.

Habeas corpus was a prerogative writ, that is, one issued by the

King against his officers to compel them to exercise their functions

properly. The practical importance of habeas corpus as providing

a speedy judicial remedy for the determination of an applicant's

claim for freedom has been asserted frequently by judies and

writers. Nonetheless, the effectiveness of the remedy depends in

many instances on the width of the statutory power under which a

public authority may be acting and the willingness of the Courts

to examine the legality of decision made in reliance on wide

ranging statutory provision. It has been suggested that the need

for the “blunt remedy” of habeas corpus has diminished as

judicial review has developed into an ever more flexible

jurisdiction. Procedural reform of the writ may be appropriate, but

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it is important not to lose sight of substantive differences between

habeas corpus and remedies under judicial review. The latter are

discretionary and the court may refuse relief on practical grounds;

habeas corpus is a writ of right, granted ex debito justitiae.”

29. The ancient prerogative writ of habeas corpus takes its name from the

two mandatory words “habeas” and “corpus”. ‘Habeas Corpus’ literally

means ‘have his body’. The general purpose of these writs as their name

indicates was to obtain the production of the individual before a court or a

judge. This is a prerogative process for securing the liberty of the subject by

affording an effective relief of immediate release from unlawful or

unjustifiable detention, whether in prison or in private custody. This is a writ

of such a sovereign and transcendent authority that no privilege of power or

place can stand against it. It is a very powerful safeguard of the subject

against arbitrary acts not only of private individuals but also of the

Executive, the greatest safeguard for personal liberty, according to all

constitutional jurists. The writ is a prerogative one obtainable by its own

procedure. In England, the jurisdiction to grant a writ existed in Common

Law, but has been recognized and extended by statute. It is well established

in England that the writ of habeas corpus is as of right and that the court has

no discretion to refuse it. “Unlike certiorari or mandamus, a writ of habeas

corpus is as of right” to every man who is unlawfully detained. In India, it is

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this prerogative writ which has been given a constitutional status under

Articles 32 and 226 of the Constitution. Therefore, it is an extraordinary

remedy available to a citizen of this Country, which he can enforce under

Article 226 or under Article 32 of the Constitution of India.

30. It is the duty of the Court to issue this writ to safeguard the freedom

of the citizen against arbitrary and illegal detention. Habeas corpus is a

remedy designed to facilitate the release of persons detained unlawfully, not

to punish the person detaining and it is not, therefore, issued after the

detention complained of has come to an end. It is a remedy against unlawful

detention. It is issued in the form of an order calling upon the person who

has detained another, whether in prison or in private custody, to ‘have the

body’ of that other before the Court in order to let the Court know on what

ground the latter has been confined and thus to give the Court an opportunity

of dealing with him as the law may require. By the writ of habeas corpus,

the Court can cause any person who is imprisoned to be brought before the

Court and obtain knowledge of the reason why he is imprisoned and then

either set him free then and there if there is no legal justification for the

imprisonment, or see that he is brought speedily to trial. Habeas Corpus is

available against any person who is suspected of detaining another

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unlawfully and not merely against the police or other public officers whose

duties normally include arrest and detention. The Court must issue it if it is

shown that the person on whose behalf it is asked for is unlawfully deprived

of his liberty. The writ may be addressed to any person whatsoever an

official or a private individual-who has another in his custody. The claim

(for habeas corpus) has been expressed and pressed in terms of concrete

legal standards and procedures. Most notably, the right of personal liberty is

connected in both the legal and popular sense with procedures upon the writ

of habeas corpus. The writ is simply a judicial command directed to a

specific jailer directing him or her to produce the named prisoner together

with the legal cause of detention in order that this legal warrant of detention

might be examined. The said detention may be legal or illegal. The right

which is sought to be enforced by such a writ is a fundamental right of a

citizen conferred under Article 21 of the Constitution of India, which

provides:—

“Article 21. Protection of life and personal liberty.—

No person shall be deprived of his life or personal liberty except

according to the procedure established by law.”

31. We are of the view that mere registration of the two FIRs for the

alleged offences of robbery etc. could not have been made the basis to invoke

the provisions of the Act 1986 for the purpose of preventively detaining the

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appellant herein on the assumption that he is a “GOONDA” as defined under

Section 2(g) of the Act 1986. What has been alleged against the appellant

detenu could be said to have raised the problems relating to law and order

but we find it difficult to say that they impinged on public order. This Court

has time and again, reiterated that in order to bring the activities of a person

within the expression of “acting in any manner prejudicial to the

maintenance of public order” the activities must be of such a nature that the

ordinary laws cannot deal with them or prevent subversive activities

affecting society. Inability on the part of the state’s police machinery to

tackle the law and order situation should not be an excuse to invoke the

jurisdiction of preventive detention.

32. The crucial issue is whether the activities of the detenu were

prejudicial to public order. While the expression 'law and order' is wider in

scope inasmuch as contravention of law always affects order, 'Public order'

has a narrower ambit, and could be affected by only such contravention,

which affects the community or the public at large. Public order is the even

tempo of life of the community taking the country as a whole or even a

specified locality. The distinction between the areas of 'law and order' and

'public order' is one of degree and extent of the reach, of the act in question

Page 32 of 55

on society. It is the potentiality of the act to disturb the even tempo of life of

the community which makes it prejudicial to the maintenance of the public

order. If a contravention in its effect is confined only to a few individuals

directly involved as distinct from a wide spectrum of public, it could raise

problem of law and order only. In other words, 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 degree and extent of its reach upon society. Acts

similar in nature, but committed in different contexts and circumstances,

might cause different reactions. In one case it might affect specific

individuals only, and therefore touches the problem of law and order only,

while in another it might affect public order. The act by itself, therefore, is

not determinant of its own gravity. In its quality it may not differ from other

similar acts, but in its potentiality, that is, in its impact on society, it may be

very different. [See: Union of India v. Amrit Lal Manchanda, (2004) 3 SCC

75.]

33. We have noticed over a period of time that in reports sponsoring

preventive detention the officers concerned rely on statements of few

individuals residing in the concerned locality so as to project existence of an

atmosphere of panic or fear in the minds of the people residing in that

locality. While recording such statements, the individuals concerned are

Page 33 of 55

assured that their identity would not be disclosed so that the maker of the

statement may not get into any difficulty. Some of the State enactments

relating to preventive detention, for instance, Section 9 of the Gujarat

Prevention of Anti-Social Activities Act, 1985, empower the Detaining

Authority not to disclose facts which it considers to be against the public

interest. In the case on hand, there is nothing to indicate that any such

statements of people, more particularly the women of the concerned locality,

were recorded so as to arrive at the subjective satisfaction that the nefarious

activities of the detenu created an atmosphere of panic and fear in the minds

of the people of the concerned locality. There is a good reason why we are

saying so or rather touching upon this issue. It appears that in none of the

FIRs the name of the detenu has been disclosed as one of the accused

persons. This is but obvious because the victim from whose neck the chain

is alleged to have been snatched would not know the detenu and the other

associates of the detenu. In each of the FIRs, it has been stated by the victim

that she would be in a position to identify the accused persons if shown to

her. We wonder whether any identification parade was carried out by the

police in this direction? There is nothing to indicate in this regard from the

materials on record. It, prima facie, appears that the detenu might have been

picked up by the police on suspicion and then all that has been relied upon

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to point a finger towards the detenu is his confessional statement before the

police. We are conscious of the fact that ordinarily the court should not get

into or look into the sufficiency of the materials on record on the basis of

which the requisite subjective satisfaction is arrived at by the Detaining

Authority. However, the facts of the present case are such that we had to go

into such issues.

34. The aforesaid gives rise to a neat question of law whether the

confessional statement made by a detenu to the police officer is admissible

in cases of detention under the Act 1986 or under any other enactment of

any State relating to preventive detention. We do not propose to enter into

any debate on this question as we have not put the counsel appearing for the

parties to notice on this issue. We leave this question open to be looked into

by this Court in any other appropriate matter in future.

i. Extraneous Considerations that weighed with the Detaining

Authority thereby vitiating the Order of Preventive Detention.

35. We take notice of the fact that in the case on hand, the Detaining

Authority has laid much stress on the fact that in the year 2023 in quick

succession four FIRs came to be registered against the appellant for the

offence of theft, robbery etc. However, the Detaining Authority took into

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consideration only two FIRs registered for the offences said to have

committed within his territorial jurisdiction. The Detaining Authority in its

order of detention has clearly stated that he has taken into consideration only

the two FIRs registered for the alleged offence committed within his

territorial jurisdiction. The Detaining Authority in clear terms has stated that

he could not have made the other two FIRs referred to in the order of

detention as the basis for arriving at the subjective satisfaction that the

activities of the appellant detenu are prejudicial to the maintenance of the

public order. However, after saying so, the Detaining Authority has in so

many words stated that the other two FIRs have been considered to look into

the criminal history of the appellant detenu.

36. We are of the view that in the aforesaid context, the Detaining

Authority is not correct and he could be said to have taken into consideration

something extraneous.

37. In the case of Ameena Begum v. State of Telangana and Others

reported in (2023) 9 SCC 587, a two-Judge Bench of this Court was

confronted with almost an identical situation with which we are dealing

with. In Ameena Begum (supra) this Court while considering whether there

was proper application of mind to all the relevant circumstances or whether

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consideration of extraneous factors had vitiated the order of detention,

observed thus:

“50. 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 2019-2020, consequent

to which the detenu was preventively detained under the

Act vide order of detention dated 4-3-2021, since quashed by the

High Court by its order dated 16-8-2021 [Hakeem Khan v. State

of Telangana, 2021 SCC OnLine TS 3663]. It is then stated therein

that the detenu had committed 9 (nine) offences in the years 2022-

2023, 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”.

51. Interestingly, even in Para 9-E of his counter-affidavit, the

Commissioner has extracted a portion of the detention order which

we have set out in para 4. The reiteration of considering past

criminal history of the detenu is not without its effect, as we shall

presently discuss.

52. In Khudiram Das [Khudiram Das v. State of W.B., (1975) 2

SCC 81 : 1975 SCC (Cri) 435] , 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.

Page 37 of 55

53. 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 4-3-2021 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 [Khaja Bilal Ahmed v. State of Telangana, (2020) 13 SCC

632 : (2020) 4 SCC (Cri) 629] deprecated. Also, as noted above,

this Court in Shibban Lal Saksena [Shibban Lal Saksena v. State

of U.P., (1953) 2 SCC 617 : AIR 1954 SC 179] 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.”

(Emphasis supplied)

38. Ameena Begum (supra) has referred to and relied upon the decision

of this Court in Khaja Bilal Ahmed v. State of Telangana and Others

reported in (2020) 13 SCC 632. Khaja Bilal (supra) has been authored by

one of us (Hon’ble Chief Justice Dr. D.Y. Chandrachud). The Court

observed thus:

“23. In the present case, the order of detention states that the

fourteen cases were referred to demonstrate the “antecedent

criminal history and conduct of the appellant”. The order of

detention records that a “rowdy sheet” is being maintained at PS

Rain Bazar of Hyderabad City and the appellant “could not mend

his criminal way of life” and continued to indulge in similar

offences after being released on bail. In the counter-affidavit filed

before the High Court, the detaining authority recorded that these

cases were “referred by way of his criminal background … (and)

are not relied upon”. The detaining authority stated that the cases

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which were registered against the appellant between 2009 and

2016 “are not at all considered for passing the detention order”

and were “referred by way of his criminal background only”. This

averment is plainly contradictory. The order of detention does, as

a matter of fact, refer to the criminal cases which were instituted

between 2007 and 2016. In order to overcome the objection that

these cases are stale and do not provide a live link with the order

of detention, it was contended that they were not relied on but were

referred to only to indicate the antecedent background of the

detenu. 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.”

(Emphasis supplied)

39. Ameena Begum (supra) has also referred to in para 53 of its judgment

to the decision of this Court in Shibban Lal Saksena v. State of Uttar

Page 39 of 55

Pradesh and Others reported in (1953) 2 SCC 617, wherein Justice B.K.

Mukherjea speaking for the Bench observed as under:

“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

cannot be challenged in a court of law, except on the ground of

mala fides [State of Bombay v. Atma Ram Shridhar Vaidya, 1951

SCC 43 : 1951 SCR 167] . 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. This principle, which was recognised by the Federal Court

Page 40 of 55

in Keshav Talpade v. King Emperor [Keshav Talpade v. King

Emperor, (1943) 5 FCR 88 : 1943 SCC OnLine FC 13] seems to

us to be quite sound and applicable to the facts of this case.”

(Emphasis supplied)

40. Thus, from the aforesaid, two propositions of law are discernible.

First, in the case on hand if the Detaining Authority thought fit to eschew

from its consideration the two FIRs registered outside his territorial

jurisdiction then he could not have made such FIRs as the basis to arrive at

the subjective satisfaction that the appellant detenu is a history sheeter.

Secondly, if at all the Detaining Authority wanted to take into consideration

the two FIRs registered with the police station not falling within his

territorial jurisdiction then he should have recorded the subjective

satisfaction that the incidence of the two FIRs created “public disorder”. In

other words, as observed by this Court in Ameena Begum (supra) habituality

of committing offence cannot, in isolation, be taken as a basis of any

detention order; rather it has to be tested on the matrices of “public order”.

It is only those cases where such habituality has created disturbance of

public order that they could qualify as a ground to order detention.

41. The learned counsel appearing for the appellant detenu is also right in

his submission that if it is the case of the Detaining Authority that there was

no other option but to pass an order of preventive detention as the appellant

Page 41 of 55

detenu came to be released by the regular criminal courts on bail then the

State should have gone for cancellation of bail. Whenever, any accused is

released on bail by any criminal court in connection with any offence,

whether specifically said so in the order of bail while imposing conditions

or not, it is implied that the bail is granted on the condition that the accused

shall not indulge in any such offence or illegal activities in future. In some

cases, courts do deem fit to impose one of such conditions for the grant of

bail. However, even in those cases, where such a condition is not specifically

imposed while granting bail it is implied that if such accused after his release

on bail once again commits any offence or indulges in nefarious activities

then his bail is liable to be cancelled. In the case on hand, the State instead

of proceeding to pass an order of detention could have approached the courts

concerned for cancellation of the bail on the ground that the appellant detenu

had continued to indulge in nefarious activities and many more FIRs have

been registered against him.

42. In the aforesaid context, we may refer to the decision of this Court

in the case of Shaik Nazeen v. State of Telangana and Others reported in

(2023) 9 SCC 633, wherein in paras 11 and 19 respectively, this Court

observed as under:

Page 42 of 55

“11. The detention order was challenged by the wife of the detenu

in a habeas corpus petition before the Division Bench of the

Telangana High Court. The ground taken by the petitioner before

the High Court was that reliance has been taken by the Authority

of four cases of chain snatching, as already mentioned above. The

admitted position is that in all these four cases the detenu has been

released on bail by the Magistrate. Moreover, in any case, the

nature of crime as alleged against the petitioner can at best be said

to be a law and order situation and not the public order situation,

which would have justified invoking the powers under the

preventive detention law. This, however did not find favour with

the Division Bench of the High Court, which dismissed the

petition, upholding the validity of the detention order.

xxx xxx xxx

19. In any case, the State is not without a remedy, as in case the

detenu is much a menace to the society as is being alleged, then

the prosecution should seek for the cancellation of his bail and/or

move an appeal to the Higher Court. But definitely seeking shelter

under the preventive detention law is not the proper remedy under

the facts and circumstances of the case.”

(Emphasis supplied)

ii. Summary of the Findings.

43. We summarize our conclusions as under: -

(i) The Detaining Authority should take into consideration only relevant

and vital material to arrive at the requisite subjective satisfaction,

(ii) It is an unwritten law, constitutional and administrative, that wherever

a decision-making function is entrusted to the subjective satisfaction

of the statutory functionary, there is an implicit duty to apply his mind

Page 43 of 55

to the pertinent and proximate matters and eschew those which are

irrelevant & remote,

(iii) There can be no dispute about the settled proposition that the

detention order requires subjective satisfaction of the detaining

authority which, ordinarily, cannot be questioned by the court for

insufficiency of material. Nonetheless, if the detaining authority does

not consider relevant circumstances or considers wholly unnecessary,

immaterial and irrelevant circumstances, then such subjective

satisfaction would be vitiated,

(iv) In quashing the order of detention, the Court does not sit in judgment

over the correctness of the subjective satisfaction. The anxiety of the

Court should be to ascertain as to whether the decision-making

process for reaching the subjective satisfaction is based on objective

facts or influenced by any caprice, malice or irrelevant considerations

or non-application of mind,

(v) While making a detention order, the authority should arrive at a proper

satisfaction which should be reflected clearly, and in categorical

terms, in the order of detention,

Page 44 of 55

(vi) The satisfaction cannot be inferred by mere statement in the order that

“it was necessary to prevent the detenu from acting in a manner

prejudicial to the maintenance of public order”. Rather the detaining

authority will have to justify the detention order from the material that

existed before him and the process of considering the said material

should be reflected in the order of detention while expressing its

satisfaction,

(vii) Inability on the part of the state’s police machinery to tackle the law

and order situation should not be an excuse to invoke the jurisdiction

of preventive detention,

(viii) Justification for such an order should exist in the ground(s) furnished

to the detenu to reinforce the order of detention. It cannot be explained

by reason(s) / grounds(s) not furnished to the detenu. The decision of

the authority must be the natural culmination of the application of

mind to the relevant and material facts available on the record, and

(ix) To arrive at a proper satisfaction warranting an order of preventive

detention, the detaining authority must, first examine the material

adduced against the prospective detenu to satisfy itself whether his

conduct or antecedent(s) reflect that he has been acting in a manner

Page 45 of 55

prejudicial to the maintenance of public order and, second, if the

aforesaid satisfaction is arrived at, it must further consider whether it

is likely that the said person would act in a manner prejudicial to the

public order in near future unless he is prevented from doing so by

passing an order of detention . For passing a detention order based on

subjective satisfaction, the answer of the aforesaid aspects and points

must be against the prospective detenu. The absence of application of

mind to the pertinent and proximate material and vital matters would

show lack of statutory satisfaction on the part of the detaining

authority.

iii. The Saga Continues

44. We are dealing with a litigation arising from an order of preventive

detention passed by the State of Telangana under the provisions of the Act

1986.

45. This is one more litigation going against the State of Telangana. We

remind the State of Telangana of what has been observed by this Court in

Mallada K. Sri Ram v. State of Telangana reported in (2023) 13 SCC 537

in para 17:

Page 46 of 55

“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.”

46. Again, in one of the recent pronouncements of this Court in Ameena

Begum (supra), this Court referring to Mallada K. Sri Ram (supra) observed

in para 65 as under:

“65. Interference by this Court with orders of detention, routinely

issued under the Act, seems to continue unabated. Even

after Mallada K. Sri Ram [Mallada K. Sri Ram v. State of

Telangana, (2023) 13 SCC 537 : 2022 SCC OnLine SC 424] , in

another decision of fairly recent origin in Sk. Nazneen v. State of

Telangana [Sk. Nazneen v. State of Telangana, (2023) 9 SCC 633]

, this Court set aside the impugned order of detention dated 28-10-

2021 holding that seeking shelter under preventive detention law

was not the proper remedy.”

47. We hope that the State of Telangana takes what has fallen from this

Court very seriously and sees to it that the orders of preventive detention are

not passed in a routine manner without any application of mind.

48. We hope that the State of Telangana does not give any good reason

once again to this Court to observe anything further.

Page 47 of 55

iv. Role of the Advisory Board

49. At this stage, it is also apposite to mention that in such scenarios as

discussed above, where orders of preventive detention are being passed by

the Detaining Authority in a routine and mechanical manner, the role and

duty of the Advisory Board(s) becomes all the more imperative to put a

check on such capricious exercise of powers and ensure that a bright-line is

drawn whereby such illegal detentions are nipped in the bud and the detenu

released forthwith.

50. Advisory Board(s) under preventive detention legislations, are not a

superficial creation but one of the primary constitutional safeguards

available to the detenu against an order of detention. Article 22(4) mandates

that, any law pertaining to preventive detention must provide for constitution

of an Advisory Board consisting of persons who have been or qualified to

be appointed as judges of the High Court. It further vests the Advisory Board

with the pivotal role of reviewing an order of detention within three-months

by forming an opinion as to whether there is a sufficient cause for such

detention or not, after consideration of all the material on record including

representation if any, of the detenu.

51. In Telangana also, under the Act, 1986, Section 9 gives expression to

this constitutional requirement, and provides for the constitution and

Page 48 of 55

composition of an Advisory Board for the purposes of the Act, the relevant

provision reads as under: -

“9. Constitution of Advisory Boards.

(1) The Government shall, whenever necessary, constitute one or

more Advisory Boards for the purposes of this Act.

(2) Every such Board shall consist of a Chairman and two other

members, who are, or have been Judges or are qualified to be

appointed as Judges of a High Court.”

52. Section 10 of the Act, 1986 provides for the reference and review of

an order of detention passed under the Act by the Advisory Board. It states

that any order of detention that has been made under the Act shall be placed

before an Advisory Board thereunder within three-weeks from the date of its

passing, along with the grounds on which such an order was made, the

representation of the detenu if any, and the report of the officer empowered

under the Act. The relevant provision reads as under: -

“10. Reference to Advisory Boards.

In every case where a detention order has been made under this

Act, the Government shall within three weeks from the date of

detention of a person under the order, place before the Advisory

Board constituted by them under section 9, the grounds on which

the order has been made and the representation, if any, made by

the person affected by the order, and in the case where the order

has been made by an officer, also the report by such officer under

sub-section (3) of section 3.”

53. Section 11 of the Act, 1986 delineates the function to be discharged

and the procedure to be adopted by the Advisory Board. It inter-alia states

Page 49 of 55

that the Advisory Board must form an opinion and specify as to whether

there is sufficient cause warranting the detention of the detenu. The Advisory

Board has to form this opinion by considering all the materials placed before

it in terms of Section 10 of the Act, 1986. Section 11 further empowers the

Advisory Board to call for any other information or to hear the detenu,

wherever necessary so as to ascertain the sufficiency of cause for preventive

detention. The relevant provision reads as under: -

“11. Procedure of Advisory Boards.

(1) The Advisory Board shall, after considering the materials

placed before it and, after calling for such further information as

it may deem necessary from the Government or from any person

called for the purpose through the Government or from the person

concerned, and if, in any particular case, the Advisory Board

considers it essential so to do or if the person concerned desires to

be heard, after hearing him in person, submit its report to the

Government within seven weeks from the date of detention of the

person concerned.

(2) The report of the Advisory Board shall specify in a separate

part thereof the opinion of the Advisory Board as to whether or not

there is sufficient cause for the detention of the person concerned.

(3) When there is a difference of opinion among the members

forming the Advisory Board, the opinion of the majority of such

members shall be deemed to be the opinion of the Board.

(4) The proceedings of the Advisory Board and its report,

excepting that part of the report in which the opinion of the

Advisory Board is specified, shall be confidential.

(5) Nothing in this section shall entitle any person against whom

a detention order has been made to appear by any legal

practitioner in any matter connected with the reference to the

Advisory Board.”

Page 50 of 55

54. Section 12 of the Act, 1986 provides that where the Advisory Board

in its report is of the opinion that sufficient cause exists warranting detention,

the Government may confirm the detention i.e., it gives the appropriate

Government the discretion to either confirm or revoke the order of detention.

But where the Advisory Board in its report is of the opinion that no sufficient

cause exists for the detention of the detenu, the same is binding on the

Government, and the detenu is forthwith required to be released. The

relevant observations read as under: -

“12. Action upon report of Advisory Board.

(1) In any case where the Advisory Board has reported that there

is, in its opinion, sufficient cause for the detention of a person, the

Government may confirm the detention order and continue the

detention of the person concerned for such period, not exceeding

the maximum period specified in section 13 as they think fit.

(2) In any case, where the Advisory Board has reported that there

is, in its opinion, no sufficient cause for the detention of the person

concerned, the Government shall revoke the detention order and

cause the person to be released forthwith.

55. What can be discerned from a bare perusal of the abovementioned

provisions is that the Advisory Board performs the most vital duty of

independently reviewing the detention order, after considering all the

materials placed before it, or any other material which it deems necessary.

When reviewing the detention order along with the relevant materials, the

Advisory Board must form an opinion as to the sufficiency of the cause for

Page 51 of 55

warranting detention. An order of detention passed under the Act, 1986 can

only be confirmed if the Advisory Board is of the opinion that there exists

sufficient cause for the detention of the detenu.

56. The framers of the Constitution being in seisin of the draconian nature

of an order of preventive detention and its adverse impact on individual

liberty, have specifically put in place safeguards within Article 22 through

the creation of an Advisory Board, to ensure that any order of preventive

detention is only confirmed upon the evaluation and scrutiny of an

independent authority which determines and finds that such an order for

detention is necessary.

57. The legislature in its wisdom has thought it fit, to entrust the Advisory

Board and no one else, not even the Government, with the performance of

this crucial and critical function which ultimately culminates into either the

confirmation or revocation of a detention order. The Advisory Board setup

under any preventive detention law in order to form its opinion is required

to; (i) consider the material placed before it; (ii) to call for further

information, if deemed necessary; (iii) to hear the detenu, if he desires to be

heard and; (iv) to submit a report in writing as to whether there is sufficient

cause for “such detention” or whether the detention is justified.

Page 52 of 55

58. An Advisory Board is not a mere rubber-stamping authority for an

order of preventive detention. Whenever any order of detention is placed

before it for review, it must play an active role in ascertaining whether the

detention is justified under the law or not. Where it finds that such order of

detention is against the spirit of the Act or in contravention of the law as laid

down by the courts, it can definitely opine that the order of detention is not

sustainable and should not shy away from expressing the same in its report.

59. As stated by us above, preventive detention being a draconian

measure, any order of detention as a result of a capricious or routine exercise

of powers must be nipped in the bud. It must be struck down at the first

available threshold and as such, it should be the Advisory Board that must

take into consideration all aspects not just the subjective satisfaction of the

detaining authorities but whether such satisfaction justifies detention of the

detenu. The Advisory Board must consider whether the detention is

necessary not just in the eyes of the detaining authority but also in the eyes

of law.

60. The requirement of having persons who have been or are qualified to

be High Court judges in the Advisory Board is not an empty formality, it is

there to ensure that, an order of detention is put to robust scrutiny and

Page 53 of 55

examined as it would have been by any ordinary court of law. Otherwise, the

purpose of independent scrutiny could very well have been served by having

any independent persons, and there would have been no need to have High

Court judges or their equivalent. Thus, it is imperative that whenever an

order of detention is placed before an Advisory Board, it duly considers each

and every aspect, not just those confined to the satisfaction of the detaining

authority but the overall legality as per the law that has been laid down by

this court.

61. An Advisory Board whilst dispensing its function of ascertaining the

existence of a “sufficient cause” for detention, cannot keep itself

unconcerned or oblivious to the developments that have taken place by a

plethora of decisions of this Court delineating the criterion required to be

fulfilled for passing an order of detention. The “independent scrutiny” as

envisaged by Article 22 includes ascertaining whether the detention order

would withstand the scrutiny a court of law.

62. We fail to understand what other purpose the Advisory Board

encompassing High Court judges or their equivalent as members would

serve, if the extent of their scrutiny of the order of detention is confined just

Page 54 of 55

to the subjective satisfaction of the detaining authority. The entire purpose

behind creation of an Advisory Board is to ensure that no person is

mechanically or illegally sent to preventive detention. In such

circumstances, the Advisory Boards are expected to play a proactive role.

The Advisory Board is a constitutional safeguard and a statutory authority.

It functions as a safety valve between the detaining authority and the State

on one hand and the rights of the detenu on the other. The Advisory Board

should not just mechanically proceed to approve detention orders but is

required to keep in mind the mandate contained in Article 22(4) of the

Constitution of India.

63. Thus, an Advisory Board setup under a preventive detention

legislation is required to undertake a proper and thorough scrutiny of an

order of detention placed before it, by appreciating all aspects and angles

before expressing any definite opinion in its report.

F. CONCLUSION

64. In the result, this appeal succeeds and is hereby allowed. The

impugned judgment and order passed by the High Court is set aside.

Consequently, the order of detention is also quashed and set aside. The

appellant detenu be set at liberty forthwith if not required in any other case.

Page 55 of 55

65. The connected Criminal Appeal No. ............. of 2024 @ SLP (Cri)

No. 3391 of 2024 of the co-detenu is also allowed for the very same reasons

and is disposed of in the aforesaid terms. The order of detention passed

against the co-detenu also stands quashed and set aside. He be set at liberty

forthwith if not required in any other case.

66. The Registry shall forward one copy each of this judgment to the

Chief Secretary and the Principal Home Secretary of the State of Telangana

at the earliest.

67. Pending application(s) if any shall stand disposed of.

............................................. CJI.

(Dr. Dhananjaya Y. Chandrachud)

................................................ J.

(J.B. Pardiwala)

................................................ J.

(Manoj Misra)

New Delhi

21

st

March, 2024