| Headnote |
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 – s. 3(2) – Preventive detention under – Proposed detenu along with his associates habitually committing robberies, property theft offences and gold chain snatchings from women folk by using criminal force on public roads in broad day light continuously – Registeration of four FIRs against the detenue for the said offence, however, the Detaining Authority took into consideration only two FIRs registered within its territorial jurisdiction – Order of preventive detention passed – Division Bench of the High Court upheld the order – Correctness: Held: 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 – 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 – On facts, 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 detenue on the assumption that he is a “GOONDA” as defined u/s. 2(g) – What has been alleged against the detenu could be said to have raised the problems relating to law and order but it is difficult to say that they impinged on public order – 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 – Furthermore, in none of the FIRs the name of the detenu has been disclosed as one of the accused persons – Detaining Authority could be said to have taken into consideration something extraneous – Thus, the order of detention passed against the detenu and co-detenu quashed and set aside – Impugned judgment and order passed by the High Court set aside. [Paras 31, 33, 36, 40, 64, 65] 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 – ss. 9-12 – Role and duty of the Advisory Board: Held: Advisory Board(s) under preventive detention legislations, are one of the primary constitutional safeguards available to the detenu against an order of detention – 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, the Advisory Board must form an opinion as to the sufficiency of the cause for warranting detention, then only an order of detention passed under the Act, 1986 can be confirmed – Framers of the Constitution have specifically put in place safeguards within Art. 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 – Preventive detention being a draconian measure, any order of detention as a result of a capricious or routine exercise of powers must be avoided – 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 – 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 examined as it would have been by any ordinary court of law – 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 – Entire purpose behind creation of an Advisory Board is to ensure that no person is mechanically or illegally sent to preventive detention. [Paras 50, 55-63] 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 – ss – 9 and 10 – Constitution and composition of an Advisory Board – Reference to Advisory Board and its functions and procedure – Stated. [Paras 51-54] 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 – Scope and object – Explained. [Paras 19-21, 23] Preventive detention – Concept of – Preventive detention vis- a-vis criminal conviction: Held: 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 – 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 – 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 – 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 – Power of preventive detention is qualitatively different from punitive detention – Power of preventive detention is a precautionary power exercised in reasonable anticipation. [Paras 24, 25] Preventive detention – Order of preventive detention – Legality of – Principles to be adhered to : Held: Detaining Authority should take into consideration only relevant and vital material to arrive at the requisite subjective satisfaction – 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 – 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 – 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 – 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 – To arrive at a proper satisfaction warranting an order of preventive detention, the detaining authority must examine the material adduced against the prospective detenu to satisfy itself and, if the said 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. [Para 43] Words and phrases – Expression ‘law and order’ and ‘public order’ – Distinction between: Held: 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 – 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 on society not merely in the nature or quality of the act – 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 – 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 thus, touches the problem of law and order only, while in another it might affect public order – Act by itself, thus, 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. [Para 32] Judicial deprecation – Order of preventive detention passed by the State of Telangana under the provisions of the Act 1986 in a routine and mechanical manner: Held: State of Telangana to pass orders of preventive detention taking the judgments pronounced by this Court seriously, and see to it that the orders of preventive detention are not passed in a routine manner without any application of mind. [Para 47, 48] Writs – Writ of ‘Habeas Corpus’ – Meaning and purpose – Issuance of writ of ‘Habeas Corpus’, when – Stated. [Paras 29-30] |
