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Preventive Detention Can't Be Invoked For Ordinary Law & Order Situation : Supreme Court

Mehal Jain
26 Jun 2022 4:30 AM GMT
Preventive Detention Cant Be Invoked For Ordinary Law & Order Situation : Supreme Court
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Stressing that the preventive detention law "strikes hard on the freedom and liberty of an individual, and cannot be exercised in a routine manner", the Supreme Court has observed that "the powers to be exercised under this law are exceptional powers which have been given to the government for its exercise in an exceptional situation".

The Court has once again highlighted the distinction that while a law and order situation can be dealt with under the ordinary law of land, it is only when there is a public order situation that the invocation of the powers under the law of Preventive Detention is justified, absent which the preventive detention would be bad and would be in violation of Articles 21 and 22 of the Constitution as it encroaches upon the liberty and freedom of an individual.
The bench of Justices C. T. Ravikumar and Sudhanshu Dhulia was hearing an appeal against the March decision of the Telangana High Court by which the Habeas Corpus Writ Petition of the petitioner- wife challenging the order of prevention of detention of her husband had been dismissed. The brief facts of the case, as recorded by the top court, are that the prevention detention order was passed against the husband of the petitioner on 28th October, 2021 by the Commissioner of Police, Rachakonda Commissionerate on grounds that the detenu was involved in gold chain snatching offences, where victims were mostly women. He has been doing this since the year 2020 in the states of Andhra Pradesh and Telangana. He was involved in as many as 36 gold chain snatching offences. Earlier, the detenu, along with three others, had formed a gang to commit these offences in order to make quick money. It was alleged that they had come to Hyderabad in a car and took shelter in a lodge. Their modus operandi was to first conduct recce of some residential areas and after selecting a suitable residential area, lift two wheelers and motor cycles which were then used in the chain snatching offences. The Apex Court recorded that although according to the Authority the detenu was involved in more than 30 cases but only 4 cases of chain snatching were considered as ground for detention, as the other cases were reported to be behind the proximity period and out of the jurisdiction of Commissionerate.
The bench of Justices Ravikumar and Dhulia noted that in short, against the detenu the F.I.Rs are primarily for an offence of 'robbery' under section 392 of the IPC; that the detention order also says that the crimes were committed in broad daylight and have thus resulted in creation of fear and panic in the minds of the general public, especially women and hence, the government had to interfere in order to "maintain public order".
"The said four cases were allegedly committed by the detenu within a span of two months between 06.05.2021 to 26.07.2021 and were committed within the jurisdiction of one police station i.e., Medipalli police station. In all these cases, the detenu had moved bail applications before the concerned Metropolitan Magistrate and was granted bail under Section 167 (2) Cr.P.C, which is commonly known as 'default bail' and the detenu was released on 16.10.2021. The detention order was later passed on 28.10.2021, which was subsequently confirmed by the Advisory Council on 13.01.2022, i.e., within the stipulated time. The detenu is under detention since 28.10.2021. The Preventive Detention Law, under which the powers have been exercised is a long winded statute called the 'Telangana Prevention of Dangerous Activities of Boot-Leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986'", noted the bench.
The bench noted that the powers have been exercised in the present case under section 3(1) of the Act; that under the aforesaid provision, inter alia, a detention order can be passed against a "goonda", and a "goonda" has been defined under Section 2 (g) of the Act; that since the allegation is that the detenu is involved in four cases of chain snatching i.e., robbery, which comes under offences given under Chapter XVII of the Indian Penal Code, he has been declared a habitual offender and thus a "goonda" vide the detention order dated 28.10.2021; and that under section 3(1) of the Act, detention order can be passed, inter alia, against a "goonda", "with a view to prevent him from acting in any manner prejudicial to the maintenance of public order...", and due to the detenu's alleged involvement in four criminal cases relating to "robbery" he has been declared a "goonda" and it is said that this is acting in a manner which is "prejudicial to the maintenance of public order".
"A bare reading of the aforesaid provision shows that the "maintenance of public order" has a crucial bearing here and unless the government is justified in holding that the act of the detenu is prejudicial to the maintenance of public order, the preventive detention would be bad and would be in violation of Articles 21 and 22 of the Constitution of India as it encroaches upon the liberty and freedom of an individual",
observed the bench.
Continuing, the bench asserted that there is absolutely no doubt in its mind that the facts and circumstances of the case as alleged in the detention order dated 28.10.2021 reflect a law and order situation which can be dealt with under the ordinary law of land, and that there was absolutely no occasion for invoking the extraordinary powers under the law of Preventive Detention.
"The reasons assigned by the authority in its detention, justifying the invocation of the provisions of the detention law are that the detenu has been granted bail in all the four cases and since he is likely to indulge in similar crime, hence the order of preventive detention. The reason why bail was granted in all four cases, however, has not been given. Bail was granted in all the four cases due to the inability of the prosecution, which did not complete its investigation in time. The bail had to be given as the charge sheet was not filed by the police in all the cases within the stipulated period of 60 days. The fault thus lies with the prosecution. The other reason assigned is that the Trial Court while granting bail did not lay down any conditions. This is again a wrong presentation of the case. Conditions were not imposed simply as it was a default bail, and in bail of this nature conditions are not liable to be imposed",
discussed the bench.
The bench was of the considered view that in the present case invocation of the Preventive Detention Law against the petitioner was not justified; that "the powers to be exercised under the Preventive Detention Law are exceptional powers which have been given to the government for its exercise in an exceptional situation as it strikes hard on the freedom and liberty of an individual, and thus cannot be exercised in a routine manner".
"The distinction between law and order situation and a public order situation has been dealt with by the Supreme Court in a catena of decisions...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",
declared the bench.
The Court referred to the precedent in Ram Manohar Lohia Vs. State of Bihar on the point of distinction between "public order" and "law and order".
Mentioning how in a recent decision of the Supreme Court, the Court had to make an observation regarding the routine and unjustified use of the Preventive Detention Law in the state of Telangana, the bench allowed the appeal, set aside the order of detention dated 28.10.2021 and order dated 25.03.2022 of the Division Bench of the High Court and ordered that the detenu be released immediately in case he is not required in any other case.

Case Title: SHAIK NAZNEEN v. THE STATE OF TELANGANA & ORS.

Citation : 2022 LiveLaw (SC) 559

Constitution of India - Article 22- Preventive Detention - the powers to be exercised under this law are exceptional powers which have been given to the government for its exercise in an exceptional situation -A law and order situation can be dealt with under the ordinary law of land- Para 12 & 13

Public Order & Law and order - distinction - The distinction between law and order situation and a public order situation has been dealt with by the Supreme Court in a catena of decisions - Ram Manohar Lohia vs State of Bihar AIR 1966 SC 740 followed (Para 15)

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 - Section 3(1)-A bare reading of the aforesaid provision shows that the "maintenance of public order" has a crucial bearing here and unless the government is justified in holding that the act of the detenu is prejudicial to the maintenance of public order, the preventive detention would be bad and would be in violation of Articles 21 and 22 of the Constitution of India as it encroaches upon the liberty and freedom of an individual (para 9)

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