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No person can be detained on possible apprehension of breach of law and order: SC

When the courts thought it fit to release the appellant's husband on bail in connection with the cases in respect of which he had been arrested, the mere apprehension that he was likely to be released on bail as a ground of his detention, is not justified. (Para 22)


Criminal Appeal No. 733 Of 2021 [Arising Out Of Slp (Criminal) No.4729 Of 2021]

Bench: Justice R. F. Nariman and Hrishikesh Roy

Decided on 2nd August, 2021

The Supreme Court bench consisting of Justice R. F. Nariman and Hrishikesh Roy allowed appeal for releasing the Detenu and ordered to is set aside the impugned judgment.

The present appeal arises out of a judgment dated 31.03.2021, passed by the High Court for the State of Telangana at Hyderabad, by which a Writ Petition filed by the Petitioner challenging a Preventive Detention Order [hereinafter referred to as “Detention Order”] passed against the Petitioner’s husband [hereinafter referred to as “the Detenu”] 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, 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. (Para 2)

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. Thereafter, the Detention Order narrates that anticipatory bail/bail has been granted to the Detenu in all the aforesaid FIRs, the last such relief granted being on 10.08.2020.

Shri Gaurav Agarwal, learned counsel appearing on behalf of the Petitioner has raised three points before us. First and foremost, he said there is no 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. (Para 8)

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 important to preventively detain him, as the ordinary law had no deterrent effect on him. Further, there is no doubt that he had infringed ‘public order’ as defined by the Telangana Prevention of Dangerous Activities Act and had disturbed the even tempo of life of persons who were cheated by him and were likely to be cheated by him. (Para 9)

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 section thereof or a grave widespread danger to life or public health. .As is well-known, the expressions ‘law and order’, ‘public order’, and ‘security of state’ are different from one another. 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.

When it comes to the liberty of a citizen under Article 21 of the Constitution of India. The reason for not adopting a narrow meaning of ‘public order’ in that case was because of the expression “in the interests of” which occurs to Article 19(2) to 19(4) and which is pressed into service only when a law is challenged as being unconstitutional for being violative of Article 19 of the Constitution. When a person is preventively detained, it is Article 21 and 22 that are attracted and not Article 19. Further, preventive detention must fall within the four corners of Article 21 read with Article 22 and the statute in question. To therefore argue that a liberal meaning must be given to the expression ‘public order’ in the context of a preventive detention statute is wholly inapposite and incorrect. On the contrary, considering that preventive detention is a necessary evil only to prevent public disorder, the Court must ensure that the 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.

On the facts of this case, as has been pointed out by us, it is clear that at the highest, a possible apprehension of breach of law and order can be said to be made out if it is apprehended that the Detenu, if set free, will continue to cheat gullible persons. This may be a good ground to appeal against the bail orders granted and/or to cancel bail but certainly cannot provide the springboard to move under a preventive detention statute. We, therefore, quash the detention order on this ground. Consequently, it is unnecessary to go into any of the other grounds argued by the learned counsel on behalf of the Petitioner. The impugned judgment is set aside and the Detenu is ordered to be freed forthwith. Accordingly, the appeal is allowed. (Para 24)



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