TaxTMI 
TaxTMI 
2024 (1) TMI 4
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....d. THE ORDER OF DETENTION AND FURTHER PROCEEDINGS 3. The Commissioner of Police, Hyderabad City ("Commissioner", hereafter) passed the Detention Order against the Detenu under the provisions of section 3(2) of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, 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 ("the Act", hereafter). Perusal of the Detention Order reveals that the Detenu earlier suffered an order of detention dated 4th March, 2021 under the category of "White Collar Offender"; however, pursuant to an order of the High Court dated 16th August, 2021 in writ proceedings instituted by his father W.P. No.12321 of 2021, the Detenu was released from detention on 17th August, 2021; that even after such release, the Detenu did not mend his habitual nature of committing crimes and in the recent past (during....
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....mental to public order, unless he is preventively detained from doing so by an appropriate order of detention." This was followed by the order detaining the Detenu, treated as a 'Goonda', from the date of service of the same with a direction to lodge him in Central Prison, Chanchalguda, Hyderabad. 4. Upon her husband being detained, the appellant submitted a representation dated 29th March, 2023 in terms of section 10 of the Act raising several grounds and seeking revocation of the Detention Order. Such representation was placed before the Advisory Board constituted under section 9 of the Act. The Advisory Board vide a report dated 29th April, 2023 opined that "there is sufficient cause for the detention of the detenu ...", whereupon the Government issued an order dated 20th May, 2023 under sub-section (1) of section 12 read with section 13 of the Act confirming the Detention Order and directing that the detention be continued for a period of 12 months from the date of detention, i.e., 27th January, 2023 (sic, 27th March, 2023). By a further order of even date, the appellant was informed by the Government of absence of any valid grounds/reasons to set aside/revoke the Detenti....
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.... of such order. 9. Clauses (1) and (2) of Article 22 of the Constitution guaranteeing protection to a person against arbitrary arrest, effected otherwise than under a warrant issued by a court of law, are regarded as vital and fundamental for safeguarding personal liberty. Nonetheless, the protection so guaranteed is subject to clause (3) of Article 22 which operates as an exception to clauses (1) and (2) and ordains that nothing therein shall apply to, inter alia, any person who is arrested or detained under any law providing for preventive detention. The purpose of preventive detention, as said by Hon'ble A.N. Ray, CJ. in Haradhan Saha vs. State of West Bengal AIR 1974 SC 2154 is to prevent the greater evil of elements imperiling the security and safety of a State, and the welfare of the Nation. Preventive detention, though a draconian and dreaded measure, is permitted by the Constitution itself but subject to the safeguards that are part of the relevant article and those carved out by the Constitutional Courts through judicial decisions of high authority which have stood the test of time. 10. It is common knowledge that recourse to preventive detention can be taken by the ....
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....e Constitution exclusively deal with specific matters and in determining whether there is infringement of the individual's guaranteed rights, the object and the form of the State action alone need be considered, and effect of the laws on fundamental rights of the individuals in general will be ignored cannot be accepted as correct", and it being settled law that the new needs of a person for liberty in the different spheres of life can now be claimed as a part of personal liberty under Article 21 and these personal liberties cannot be restricted either by legislation or law not satisfying Articles 14 and 19, we need not at all be guided by the view expressed in A.K. Gopalan (supra). Suffice it to observe that A.K. Gopalan (supra) was decided by this Court at the dawn of the Constitution, keeping in mind the then social realities, when the true and correct interpretation of the Constitution was yet to take shape and also without the benefit of any precedent on the point, which permits understanding of various points of view of Hon'ble Judges and thereby makes it easy for successors to evolve the dynamic facets of the Fundamental Rights enshrined in the Constitution. 13. This Cour....
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....uld be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole. ***" 14. In Rameshwar Shaw vs. District Magistrate AIR 1964 SC 334, a Constitution Bench speaking through Hon'ble P.B. Gajendragadkar, J. (as the Chief Justice then was) in course of interdicting an order of detention passed under section 3 of the Detention Act held as follows: "7. There is also no doubt that if any of the grounds furnished to the detenu are found to be irrelevant while considering the application of clauses (i) to (iii) of Section 3(1)(a) and in that sense are foreign to the Act, the satisfaction of the detaining authority on which the order of detention is based is open to challenge and the detention order liable to be quashed. Similarly, if some of the grounds supplied to the detenu are so vague that they would virtually deprive the detenu of his statutory right of making a representation that again may introduce a serious infirmity in the order of his detention. If, however, the grounds on which the order of detention proceeds are relevant and germane to the matters which fall to be co....
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.... apparent if we consider the nature of the power of detention and the conditions on which it can be exercised. The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof. Patanjali Sastri, C.J. pointed out in State of Madras v. V.G. Row [(1952) 1 SCC 410 : AIR 1952 SC 196 : 1952 SCR 597] that preventive detention is 'largely precautionary and based on suspicion' and to these observations may be added the following words uttered by the learned Chief Justice in that case with reference to the observations of Lord Finlay in Rex v. Halliday [1917 AC 260] namely, that 'the court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based'. This being the nature of the proceeding, it is impo....
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....atisfaction being a condition precedent for the exercise of the power conferred on the Executive, the Court can always examine whether the requisite satisfaction is arrived at by the authority : if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad. There are several grounds evolved by judicial decisions for saying that no subjective satisfaction is arrived at by the authority as required under the statute. The simplest case is whether the authority has not applied its mind at all; in such a case the authority could not possibly be satisfied as regards the fact in respect of which it is required to be satisfied. Emperor v. Shibnath Bannerji [AIR 1943 FC 75 : 1944 FCR 1 : 45 Cri LJ 341] is a case in point. Then there may be a case where the power is exercised dishonestly or for an improper purpose : such a case would also negative the existence of satisfaction on the part of the authority. The existence of 'improper purpose', that is, a purpose not contemplated by the statute, has been recognised as an independent ground of control in several decided cases. The satisfaction, moreover, must be a satisfacti....
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....ds: "5. *** Where large masses of people are poor, illiterate and ignorant and access to the courts is not easy on account of lack of financial resources, it would be most unreasonable to insist that the petitioner should set out clearly and specifically the grounds on which he challenges the order of detention and make out a prima facie case in support of those grounds before a rule is issued or to hold that the detaining authority should not be liable to do any thing more than just meet the specific grounds of challenge put forward by the petitioner in the petition. The burden of showing that the detention is in accordance with the procedure established by law has always been placed by this Court on the detaining authority because Article 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law. This constitutional right of life and personal liberty is placed on such a high pedestal by this Court that it has always insisted that whenever there is any deprivation of life or personal liberty, the authority responsible for such deprivation must satisfy the....
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....rs, for emphasis) 18. This was further affirmed by this Court in Khaja Bilal Ahmed vs. State of Telangana (2020) 13 SCC 632, where the detention order dated 2nd November, 2018 issued under the Act had delved into the history of cases involving the appellant-detenu from the years 2007 - 2016, despite the subjective satisfaction of the Officer not being based on such cases. In quashing such an order, Hon'ble Dr. D.Y. Chandrachud, J. (as the Chief Justice then was) observed: "23. *** If the pending cases were not considered for passing the order of detention, it defies logic as to why they were referred to in the first place in the order of detention. The purpose of the Telangana Offenders Act 1986 is to prevent any person from acting in a manner prejudicial to the maintenance of public order. For this purpose, Section 3 prescribes that the detaining authority must be satisfied that the person to be detained is likely to indulge in illegal activities in the future and act in a manner prejudicial to the maintenance of public order. The satisfaction to be arrived at by the detaining authority must not be based on irrelevant or invalid grounds. It must be arrived at on the ba....
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....to whether there is an order of detention or not and the moment such an order, good on its face, is produced, all enquiry into good faith, sufficiency of the reasons or the legality or illegality of the action comes to an end. However, with passage of time, and expansion and development of law, it is no longer the law that a preventive detention action, howsoever lawful it might appear on its face, cannot be invalidated by the Constitutional Courts. This is so, as at present, there is no administrative order affecting rights of the subjects that can legitimately claim to be impregnably guarded by a protective shield, which judicial scrutiny cannot penetrate. 21. Apart from the aforesaid decisions, multiple decisions have been rendered by this Court over the years which provide suitable guidance to us to complete the present exercise; however, we wish to conclude this discussion by referring to one decision of this Court delivered little in excess of a decade back by a Bench of 3-Judges. 22. In Rekha vs. State of Tamil Nadu ( 2011 ) 5 SCC 244, this Court observed that: "21. It is all very well to say that preventive detention is preventive not punitive. The truth of t....
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....se (3) of Article 22 of the Constitution itself authorises detention as a preventive measure, there can be no two opinions that none can take exception to such a measure being adopted and it is only a limited judicial review by the Constitutional Courts that can be urged by an aggrieved detenu wherefor too, in examining challenges to orders of preventive detention, the Courts would be loath to interfere with or substitute their own reasoning for the subjective satisfaction arrived at by the detaining authority. Since the object of a preventive detention law is not punitive but preventive and precautionary, ordinarily it is best left to the discretion of the detaining authority. 24. We, however, hasten to observe here that though the decision in Rekha (supra) reflects on an important aspect of loss of liberty without trial by taking recourse to preventive detention laws, the decision of the Constitution Bench in Haradhan Saha (supra) still holds the field and to the extent the learned Judges in Rekha (supra) sound a note discordant with the law laid down in Haradhan Saha (supra) ought not to be construed as acceptance by us as the correct exposition of law. 25. Be that as it m....
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....mproper purpose, not authorised by the statute, and is therefore ultra vires; (iv) the detaining authority has acted independently or under the dictation of another body; (v) the detaining authority, by reason of self-created rules of policy or in any other manner not authorized by the governing statute, has disabled itself from applying its mind to the facts of each individual case; (vi) the satisfaction of the detaining authority rests on materials which are of rationally probative value, and the detaining authority has given due regard to the matters as per the statutory mandate; (vii) the satisfaction has been arrived at bearing in mind existence of a live and proximate link between the past conduct of a person and the imperative need to detain him or is based on material which is stale; (viii) the ground(s) for reaching the requisite satisfaction is/are such which an individual, with some degree of rationality and prudence, would consider as connected with the fact and relevant to the subject-matter of the inquiry in respect whereof the satisfaction is to be reached; (ix) the grounds on which the order of preventive detenti....
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....the fact to the Government together with the grounds on which the order has been made and such other particulars as in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the mean time, it has been approved by the Government." The word used in sub-sections (1) and (2) of section 3 is "satisfied" and it clearly imports subjective satisfaction on the part of the detaining authority before an order of detention can be made. 27. We now proceed to examine the Detention Order passed by the Commissioner on 24th March, 2023 under section 3(2) of the Act and whether such 'subjective satisfaction' of the Commissioner stands scrutiny on application of the requisite tests. 28. In the present case, the Detention Order was based on 5 (five) distinct offences, of which there is a crime allegedly committed by the Detenu in relation to a minor girl. Crimes have also been registered on allegations of cheating, and obstructing a public official from discharging his duty, as well as a crime has been registered involving dacoity. In Crime Nos. 262/2022, 18/2023 and 35/2023, charge-sheets are yet to be....
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.... of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. 55. It will thus appear that just as 'public order' in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting 'security of State', 'law and order' also comprehends disorders of less gravity than those affecting 'public order'. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State." (underlining ours, for emphasis) 33. For an act to qualify as a disturbance to public order, the specific activity must have an impact on the broader community or the general public, evoking feelings of fear, panic, or insec....
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....o disorder but every infraction of law does not necessarily result in public disorder. *** 6. *** The power to detain a person without the safeguard of a court trial is too drastic to permit a lenient construction and therefore Courts must be astute to ensure that the detaining authority does not transgress the limitations subject to which alone the power can be exercised. ***" ( underlining ours, for emphasis ) 35. Turning our attention to section 3(1) of the Act, the Government has to arrive at a subjective satisfaction that a goonda (as in the present case) has to be detained, in order to prevent him from acting in a manner prejudicial to the maintenance of public order. Therefore, we first direct ourselves to the examination of what constitutes 'public order'. Even within the provisions of the Act, the term "public order" has, stricto sensu, been defined in narrow and restricted terms. An order of detention under section 3(1) of the Act can only be issued against a detenu to prevent him "from acting in any manner prejudicial to the maintenance of public order". "Public order" is defined in the Explanation to section 2(a) of the Act as encompassing situation....
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....he public at large is adversely affected by the criminal activities of a person, then such conduct of the person is said to disturb "public order". Holding that the true distinction between the areas of 'law and order' and 'public order' lies not merely in the nature or quality of the act, but in the proper degree and extent of its impact on the society, it was ruled that the cases do not fall within the ambit of the words "public order" or "disturbance of public order", instead, they fall within the scope of the words "law and order", and that there was no need for the detaining authority to pass the impugned order. Based thereon, the impugned order was quashed and the Detenu set at liberty. 39. In fine, what we find is that the order of detention impugned in that writ petition failed to differentiate between offences which create a "law and order" situation and which prejudicially affect or tend to prejudicially affect "public order". The present Detention Order fares no better. Even if the offences referred to in the Detention Order, alleged to have been committed by the Detenu have led to the satisfaction being formed, still the same are separate and stray acts affecting pri....
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....s vitiated the Detention Order. 43. Considering past criminal history, which is proximate, by itself would not render an order illegal. The Commissioner in the Detention Order made pointed reference to the Detenu being a habitual offender by listing 10 (ten) criminal proceedings in which the Detenu was involved during the years 2019-20, consequent to which the Detenu was preventively detained under the Act vide order of detention dated 4th March, 2021, since quashed by the High Court by its order dated 16th August, 2021. It is then stated therein that the Detenu had committed 9 (nine) offences in the years 2022-23, and these offences are again listed out in detail. However, the Commissioner states that the present order of detention is based only on 5 (five) out of these 9 (nine) crimes, which are alleged to show that the Detenu's activities are "prejudicial to the maintenance of public order, apart from disturbing peace and tranquillity in the area." 44. Interestingly, even in paragraph 9 E of his Counter Affidavit, the Commissioner has extracted a portion of the Detention Order which we have set out in paragraph 3 (supra). The reiteration of considering past criminal histor....
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....tion, the High Court held as follows: "Under these circumstances, the apprehension of the detaining authority that since the detenus were granted bail in all the crimes, there is imminent possibility of the detenus committing similar offences which are detrimental to public order unless they are prevented from doing so by an appropriate order of detention, is highly misplaced. [...] In the instant cases, since the detenus are released on bail, in the event if it is found that the detenus are involved in further crimes, the prosecution can apprise the same to the Court concerned and seek cancellation of bail. Moreover, the criminal law was already set into motion against the detenus. Since the detenus have allegedly committed offences punishable under the Indian Penal Code, the said crimes can be effectively dealt with under the provisions of the Indian Penal Code. The detaining authority cannot be permitted to subvert, supplant or substitute the punitive law of land, by ready resort to preventive detention." 48. Since the aforesaid order of the High Court went unchallenged and is, thus, binding upon the parties, it was not open to the Commissioner to refer to the very s....
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....etitions in Cr.Nos. 18/2023 of Golconda PS and 35/2023 of Falaknuma PS. The prosecution has filed suitable counters strongly opposing the grant of bail to him, but the Hon'ble Magistrate granted bail to him in both the cases and ordered for his release. Subsequently, he was released from judicial remand on bail. As seen from his past criminal history, background and antecedents and also his habitual nature of committing crimes one after the other and his efforts to come out of the prison, I strongly believe that if such a habitual criminal is set free, his activities would not be safe to the society and there is an imminent possibility of his committing similar offences by violating the bail conditions in one of the cases, which would be detrimental to public order, unless he is preventively detained from doing so by an appropriate order of detention." With respect to the stage of proceedings in the offences which form its basis, the Detention Order states that despite being contested by the State, bail has been granted to the Detenu in Crimes No. 4 and 5. Insofar as grant of bail to the Detenu is concerned, the Commissioner states that: "I strongly believe....
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.... of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court." ( underlining ours, for emphasis ) 53. Resonance of these principles are traceable in Banka Sneha Sheela vs. The State of Telangana ( 2021 ) 9 SCC 415. There, while examining an order of detention passed with reference to 5 (five) offences involving sections 420, 406 and 506 of the IPC, in respect whereof the detenu had obtained orders of bail/anticipatory bail, this Court had the occasion to say that: "A close reading of the Detention Order would make it clear that the reason for the said Order is not any apprehension of widespread public harm, danger or alarm but is only because the Detenu was successful in obtaining anticipatory bail/bail from the Courts in each of the five FIRs. If a person is granted anticipatory bail/bail wrongly, there are well-known remedies in the ordinary law to take care of the situation. The State can always appeal against the bail order....
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....Appeal No.908 of 2022, dated 22nd June 2023, this Court set aside the impugned order of detention dated 28th October, 2021 holding that seeking shelter under preventive detention law was not the proper remedy. 57. It requires no serious debate that preventive detention, conceived as an extraordinary measure by the framers of our Constitution, has been rendered ordinary with its reckless invocation over the years as if it were available for use even in the ordinary course of proceedings. To unchain the shackles of preventive detention, it is important that the safeguards enshrined in our Constitution, particularly under the 'golden triangle' formed by Articles 14, 19 and 21, are diligently enforced. 58. Now, we proceed to answer the incidental issue raised before us. Seldom have we found orders of detention continued, after the advice of the Advisory Board, for less than the maximum period permissible under the relevant law. Consideration of the matter by the Advisory Board, which consists of respectable members including retired High Court judges and those qualified to become High Court judges, was conceived to act as a safety valve against abuse of power by the detaining aut....
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.... 60. What section 13 of the Act, with which we are concerned, provides has been noticed in one of the preceding paragraphs. However, the regular practice of the authorities treating the maximum period of detention of 12 (twelve) months as the standard duration, in our view, could be suggestive of a mechanical approach. Inherent in the conferment of power to extend detention for 12 (twelve) months is the discretion to make an order to be operative for any period lesser than the maximum period. 61. Fagu Shaw vs. The State of West Bengal ( 1974 ) 4 SCC 152 is another Constitution Bench decision of this Court where challenge was laid to section 13 of the MISA. It was argued that section 13 is bad because it is violative of the Fundamental Right under Article 14 of the Constitution for the reason that it has conferred unlimited discretion on the detaining authority to fix the period of detention. Repelling the challenge, this Court held: "28. *** The maximum period of detention has been fixed by Section 13 and the discretion to fix the duration within the maximum has been given to the Government after considering all the relevant circumstances. Seeing that the maximum perio....
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....hether the detention is to be continued for the maximum period of 12 (twelve) months or any lesser period. In our opinion, the relevant provisions of the Act have to be so read as to inhere a safeguard against arbitrary exercise of discretionary power. 64. Discretion, it has been held by this Court in Bangalore Medical Trust vs. B.S. Muddappa ( 1991 ) 4 SCC 54 , is an effective tool in administration providing an option to the authority concerned to adopt one or the other alternative. When a statute provides guidance, or rule or regulation is framed, for exercise of discretion, then the action should be in accordance with it. Where, however, statutes are silent and only power is conferred to act in one or the other manner, the authority cannot act whimsically or arbitrarily; it should be guided by reasonableness and fairness. A legislature does not intend abuse of the law or its unfair use. 65. While considering the validity of an externment order under the Maharashtra Police Act, 1951, this Court in Deepak vs. State of Maharashtra 2022 SCC OnLine SC 99 held : "When the competent authority passes an order for the maximum permissible period of two years, the order of ....
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....time and in the circumstances, the appellant was in the least prejudiced. The concurring judgment also took the same view that the authority is not required to give any special reason either for fixing a shorter period or for fixing the maximum period prescribed under section 10. 69. Much water has flown under the bridge since then. It is no longer the law that an administrative authority is under an obligation to give a reasoned decision only if the statute under which it is acting requires it to assign reasons. On the contrary, it is only in cases where the requirement has been dispensed with expressly or by necessary implication that an administrative authority is relieved of the obligation to record reasons. Further, the presumption of official acts having been validly performed cannot be pressed into service for upholding the period for which the detention would continue if the order of detention itself suffers from an illegality rendering it unsustainable. That apart, the reasoning of no prejudice being suffered by the detenu because a power of revocation/modification is available to the Government would not be of any consolation if such power were not exercised at all. In....
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....rruling Cherukari Mani (supra). It was held that the "State Government need not review the orders of detention every three months after it has passed the confirmatory order". Fairly, Mr. Luthra did not seek to rely on Cherukari Mani (supra) further. 74. However, according to Mr. Dave, the decision in Pesala Nookaraju (supra) answered the issue under consideration. Reference was made to a sentence in paragraph 44 where this Court held that: "44. *** The Act does not contemplate a review of the detention order once the Advisory Board has opined that there is sufficient cause for detention of the person concerned and on that basis, a confirmatory order is passed by the State Government to detain a person for the maximum period of twelve months from the date of detention. ***" 75. Mr. Luthra rightly pointed out that the excerpted sentence is part of the discussion made by this Court while dealing with the first contention of the appellant that the detention order was contrary to the proviso to section 3(2) of the 1986 Act. 76. Mr. Dave next relied on the reasons assigned in Pesala Nookaraju (supra) to contend that the impugned Detention Order should be held legal and ....