TaxTMI 
TaxTMI 
2021 (8) TMI 1303
X X X X Extracts X X X X
X X X X Extracts X X X X
....ticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986 [hereinafter referred to as "Telangana Prevention of Dangerous Activities Act"] , was dismissed. 3. The Detention Order under the provisions of the Telangana Prevention of Dangerous Activities Act is dated 28.09.2020. It refers to five FIRs that have been filed against the Detenu, all the said FIRs being under Sections 420, 406 and 506 of the IPC. The facts contained in the FIRs range from October, 2017 to December, 2019 and are similar. We may set out the facts contained in FIR No.705 of 2019 as a sample of similar FIRs filed against the Detenu as follows [This narration of the FIR is to be found in the Detention Order itself]: "On 12.12.2019 at 1200 hours a complaint was received from Sri Kommu Naveen Kumar S/o Veeraswamy, aged about 24 years, Occ: Car Mechanic, R/o H. No. 2-32, Yadaran Village, Shamirpet Mandal stating that he has been running a Garage near main road at M....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s a High Court Advocate and you have a team consisting of one CA (Chartered Accountant) and CS (Company Secretary) and three advocates. Your CS has an expertise and links in Central and State governments. You have knowledgeable persons in share marketing and used to invest money in upcoming companies which ensure return of 100%. You would lure the innocent public in the guise of providing good profit by investing their money in share marketing. You used to contact your known persons and lure them to invest their money in share market to get good profits assuring the profit 100% within a short period. Further you used to give blank cheques and ask commission from the victims to gain their confidence. As per plan, you collected amount from the victims through Phone-pe which is linked to your bank account and net-banking and in-person. When you received money to your bank account, immediately you had transfer the received amount to your wife's bank account. When the victims contact you over phone, you first start avoiding them and then diverting their calls and finally cheating them. Later, you changed your residential address in order to conceal your where-abouts from the victims....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rs, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986, (Act No. 01 of 1986)"." 6. As a result thereof, the Detenu was preventively detained from the date of the Detention Order itself. A representation dated 31.10.2020 was made by the Petitioner herein to the Commissioner of Police, Cyberabad Commissionerate [Respondent No. 2] which was considered by the Advisory Board, who by its Order 11.11.2020 found that there was sufficient cause to continue the Detention Order. Vide the Order of the State of Telangana dated 17.12.2020, the Detention Order was confirmed and the period of detention was directed to be for a period of one year from 05.10.2020. 7. The impugned judgment, after narrating the facts and the arguments made by counsel on behalf of the Petitioner as well as counsel on behalf of the State, then held: "9. In....
X X X X Extracts X X X X
X X X X Extracts X X X X
....proximate or live connection between the acts complained of and the date of the Detention Order, as the last act that was complained of, which is discernible from the first 3 FIRs [FIRs dated 12.12.2019, 12.12.2019 and 14.12.2019], was in December 2019 whereas the Detention Order was passed 9 months later on 28.09.2020. He then argued, without conceding, that at best only a 'law and order' problem if at all would arise on the facts of these cases and not a 'public order' problem, and referred to certain judgments of this court to buttress the same. He also argued that the Detention Order was totally perverse in that it was passed only because anticipatory bail/bail applications were granted. The correct course of action would have been for the State to move to cancel the bail that has been granted if any further untoward incident were to take place. 9. Shri Ranjit Kumar, learned senior counsel appearing on behalf of the State of Telangana, reiterated the grounds contained in the Detention Order and argued that the Detenu was a habitual fraudster who had therefore created fear amongst the gullible public, and since he was likely to commit similar offences in future, it was import....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment 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." "Section 13. Maximum period of detention The maximum period for which any person may be detained, in pursuance of any detention order made under this Act which has been confirmed under section 12, shall be twelve months from the date of detention." 11. While it cannot seriously be disputed that the Detenu may be a "white collar offender" as defined under Section 2(x) of the Telangana Prevention of Dangerous Activities Act, yet a Preventive Detention Order can only be passed if his activities adversely affect or are likely to adversely affect the maintenance of public order. Public order is defined in the Explanation to Section 2(a) of the Telangana Prevention of Dangerous Activities Act to be a harm, danger or alarm or a feeling of insecurity among the general public or any ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....civil defence; (ii) the security of the State; (iii) the public safety or interest: (iv) the maintenance of public order; (v) India's relations with foreign states: (vi) the maintenance of peaceful conditions in any part or area of India: or (vii) the efficient conduct of military operations. It will thus appear that security of the state, public safety or interest, maintenance of public order and the maintenance of peaceful conditions in any part or area of India may be viewed separately even though strictly one clause may have an effect or bearing on another. Then follows Rule 30, which repeats the above conditions and permits detention of any person with a view to preventing him from acting in any of the above ways. The argument of Dr Lohia that the conditions are to be cumulatively applied is clearly untenable. It is not necessary to analyse Rule 30 which we quoted earlier and which follows the scheme of Section 3(15). The question is whether by taking power to prevent Dr Lohia from acting to the prejudice of "law and order" as against "public order" the District Magistrate went outside his powers. [page 738-....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er but not public order just as an act may affect public order but not security of the State. By using the expression "maintenance of law and order" the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules." [page 745-746] 13. There can be no doubt that for 'public order' to be disturbed, there must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects 'law and order' but before it can be said to affect 'public order', it must affect the community or the public at large. 14. There can be no doubt that what is alleged in the five FIRs pertain to the realm of 'law and order' in that various acts of cheating are ascribed to the Detenu which are punishable under the three sections of the Indian Penal Code set out in the five FIRs. A close reading of the Detention Order would make it clear that the reason for the said Order is not any apprehension of widespread public harm, danger or alarm but is only because the Detenu was successful in obtaining anticipatory bail/bail from the Courts in each of the five FIRs. If a person is granted anticipatory....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt No. 2, before passing the said detention order considered the crucial issues as to whether the activities of the detenu were prejudicial to public and as to whether public order could be affected by only such contravention which affects the community or the public at large." 16. The reference to Madhu Limaye v. Sub-Divisional Magistrate (supra) is wholly inapposite. This judgment dealt with the scope of the expression "in the interests of public order" which occurs in Article 19(2) to 19(4) of the Constitution of India. The observations made by this judgment were in the context of a challenge to Section 144 of the Code of Criminal Procedure. Importantly, this Court referred to the judgment in Ram Manohar Lohia (supra) and then opined: "19. Adopting this test we may say that the State is at the centre and society surrounds it. Disturbances of society go in a broad spectrum from more disturbance of the serenity of life to jeopardy of the State. The acts become graver as we journey from the periphery of the largest circle towards the centre. In this journey we travel first though public tranquillity, then through public order and lastly to the security of the State. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e facts brought before it directly and inevitably lead to a harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large. 18. Several judgments of this Court have reminded us about the role of the High Courts and this Court in cases of preventive detention. Thus, in Frances Coralie Mullin v. W.C. Khambra (1980) 2 SCR 1095, a Division Bench of this Court held: "We have no doubt in our minds about the role of the court in cases of preventive detention: it has to be one of eternal vigilance. No freedom is higher than personal freedom and no duty higher than to maintain it unimpaired. The Court's writ is the ultimate insurance against illegal detention. The Constitution enjoins conformance with the provisions of Article 22 and the Court exacts compliance. Article 22(5) vests in the detenu the right to be provided with an opportunity to make a representation. Here the Law Reports tell a story and teach a lesson. It is that the principal enemy of the detenu and his right to make a representation is neither high-handedness nor mean-mindedness but the casual indifference, the mindless insensibility, the routine and the red tape of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sed thought and democratic polity that safeguards against undue exercise of the power to detain without trial, have been built into the Constitution itself and incorporated as Fundamental Rights. There are two sentinels, one at either end. The Legislature is required to make the law circumscribing the limits within which persons may be preventively detained and providing for the safeguards prescribed by the Constitution and the courts are required to examine, when demanded, whether there has been any excessive detention, that is whether the limits set by the Constitution and the Legislature have been transgressed. Preventive detention is not beyond judicial scrutiny. While adequacy or sufficiency may not be a ground of challenge, relevancy and proximity are certainly grounds of challenge. Nor is it for the court to put itself in the position of the detaining authority and to satisfy itself that the untested facts reveal a path of crime. I agree with my brother Sen,, J. when he says, "It has always been the view of this Court that the detention of individuals without trials for any length of time, however short, is wholly inconsistent with the basic ideas of our Government and the g....
X X X X Extracts X X X X
X X X X Extracts X X X X
....its preventive detention is only an exception to Article 21 of the Constitution. An exception is an exception, and cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Article 21 of the Constitution. Fundamental rights are meant for protecting the civil liberties of the people, and not to put them in jail for a long period without recourse to a lawyer and without a trial. As observed in R. v. Secy. of State for the Home Deptt., ex p Stafford [(1998) 1 WLR 503 (CA)] : (WLR p. 518 F-G) " ... The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of law." Article 22, hence, cannot be read in isolation but must be read as an exception to Article 21. An exception can apply only in rare and exceptional cases, and it cannot override the main rule. 14. Article 21 is the most important of the fundamental rights guaranteed by the Constitution of India. Liberty of a citizen is a most important right won by our forefathers after long, historical and arduous struggles. Our Founding Fathers realised its value be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tain general observations made by the Constitution Bench in Haradhan Saha v. The State of West Bengal (1975) 3 SCC 198 as follows: "33. No doubt it has been held in the Constitution Bench decision in Haradhan Saha case [(1975) 3 SCC 198 : 1974 SCC (Cri) 816] that even if a person is liable to be tried in a criminal court for commission of a criminal offence, or is actually being so tried, that does not debar the authorities from passing a detention order under a preventive detention law. This observation, to be understood correctly, must, however, be construed in the background of the constitutional scheme in Articles 21 and 22 of the Constitution (which we have already explained). Article 22(3)(b) is only an exception to Article 21 and it is not itself a fundamental right. It is Article 21 which is central to the whole chapter on fundamental rights in our Constitution. The right to liberty means that before sending a person to prison a trial must ordinarily be held giving him an opportunity of placing his defence through his lawyer. It follows that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the ordinary criminal law (the Pen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....denied to the detenus." xxx xxx xxx 39. Personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. The stringency and concern of judicial vigilance that is needed was aptly described in the following words in Thomas Pelham Dale case [(1881) 6 QBD 376 (CA)] : (QBD p. 461) "Then comes the question upon the habeas corpus. It is a general rule, which has always been acted upon by the courts of England, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the court will not allow the imprisonment to continue."" [emphasis supplied] 21. Shri Ranjit Kumar, learned senior counsel appearing on behalf of the State of Telangana relied strongly upon Subramanian v. State of Tamil Nadu (2012) 4 SCC 699, and in particular upon paragraphs 14 and 15 which read as follows: "14. It is well settled that the cou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....armed with "aruval", along with his associates, armed with "katta" came to the place of the complainant. The detenu abused the complainant in filthy language and threatened to murder him. His associates also threatened him. The detenu not only threatened the complainant with weapon like "aruval" but also damaged the properties available in the shop. When the complainant questioned the detenu and his associates, the detenu slapped him on his face. When the complainant raised an alarm for rescue, on the arrival of general public in and around, they were also threatened by the detenu and his associates that they will kill them. 17. It is also seen from the grounds of detention that because of the threat by the detenu and his associates by showing weapons, the nearby shopkeepers closed their shops out of fear and auto drivers took their autos from their stand and left the place. According to the detaining authority, the above scene created a panic among the public. In such circumstances, the scene created by the detenu and his associates cannot be termed as only law and order problem but it is public order as assessed by the detaining authority who is supposed to safeguard and....
X X X X Extracts X X X X
X X X X Extracts X X X X
....so under the laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order. An individual incident of an offence under the Penal Code, however heinous, is insufficient to make out a case for issuance of an order of preventive detention." This judgment was followed in Mungala Yadamma v. State of A.P. (2012) 2 SCC 386, as follows: "7. Having considered the submissions made on behalf of the respective parties, we are unable to accept the submissions made on behalf of the State in view of the fact that the decision in Rekha case [(2011) 5 SCC 244 : (2011) 2 SCC (Cri) 596] , in our view, clearly covers the facts of this case as well. The offences complained of against the appellant are of a nature which can be dealt with under the ordinary law of the land. Taking recourse to the provisions of preventive detention is contrary to the constitutional guarantees enshrined in Articles 19 and 21 of the Cons....