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TMI Blog2021 (8) TMI 1303X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 - 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. In YUMMAN ONGBI LEMBI LEIMA VERSUS STATE OF MANIPUR ORS. [ 2012 (1) TMI 200 - SUPREME COURT] , this Court spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 Muraharipally village for the past one year. One Banka Ravikanth, aged about 35 years used to come to his garage for two to three times in a month for his car servicing. In the month of March, 2019 the said Ravikanth introduced himself as a High Court advocate and he would invest money in newly upcoming companies and insisted the complainant to invest money for 100% return. He also informed that they are three advocates, of them one is CA (Chartered Accountant) and another is CS (Company Secretary) by name Chandramouli, aged about 65 years. On believing his words, he transferred Rs.50,000/- through Phone-pay to his Indian Bank, Shamirpet branch vide A/c No. 6714073306. Again on 28.05.2019 he transferred Rs. 1,00,000/- through Phone-pay as second investment and on 20.06.2019 he deposited Rs. 1,00,000/- from his Indian Bank, Gachibowli Branch account to his account besides giving net cash of Rs. 2,00,000/- by hand. While ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k 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. You have cheated so many people to the tune of more than Rs. 50.00 lakhs in the guise of providing good profit through investment in share market. You are involved in Cr.No.34/2020 u/s 406, 420 IPC of Malkajgiri Police Station in the limits of Rachakonda Police Commissionerate which referred by way of your antecedent criminal background the same is not relied upon for your detention. 5. 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. The Detention Order then narrates: Having regard to your involvement in series of criminal activities such as cheating in the guise of providing good profit by investing their money in stock market and collected huge amounts to the tune of more than Rs. 50 lakhs from them in an organized way and in view of the bail petitions moved by you and granted in the aforesaid cases and later releasin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the instant case, a perusal of the material placed on record reveals that the detenu was granted bail by the Courts concerned in all the five cases relied upon by the detaining authority for preventively detaining him. Under these circumstances, the contention of the respondents that the illegal activities of the detenu would disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order and there is imminent possibility of the detenu again indulging in similar prejudicial activities, cannot be brushed aside. The judgment then referred to the decisions of this Court in Madhu Limaye v. Sub-Divisional Magistrate (1970) 3 SCC 746, Commissioner of Police v. C. Sunita (2004) 7 SCC 467 and R. Kalavathi v. State of Tamil Nadu (2006) 6 SCC 14, and then concluded: The modus operandi of the detenu in the alleged offences which were committed in quick succession would certainly disturb the public peace and tranquillity. So it is imperative upon the officers concerned to pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 10. Having heard learned counsel for both parties, it is first important to set out the important provisions of the Act as follows: 2. Definitions In this Act, unless the context otherwise requires, (a) acting in any manner prejudicial to the maintenance of public order means when a bootlegger, a dacoit, a drug offender, a goonda, an immoral traffic offender, Land- Grabber, a Spurious Seed Offender, an Insecticide Offender, a Fertiliser Offender, a Food Adulteration Offender, a Fake Document Offender, a Scheduled Commodities Offender, a Forest Offender, a Gaming Offender, a Sexual Offender, an Explosive Substances Offender, an Arms Offender, a Cyber Crime Offender and a White Collar or Financial Offender is engaged or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong the general public or any section thereof or a grave widespread danger to life or public health. 12. As is well-known, the expressions law and order , public order , and security of state are different from one another. In Ram Manohar Lohia v. State of Bihar (1966) 1 SCR 709 the question before this Court arose under a Preventive Detention Order made under Rule 30 of the Defence of India Rules, which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. This Court set out the distinction between a mere law and order disturbance and a public order disturbance as follows: The Defence of India Act and the Rules speak of the conditions under which preventive detention under the Act can be ordered. In its long title and the preamble the Defence of India Act speaks of the necessity to provide for special measures to ensure public safety and interest, the defence of India and civil defence. The expression public safety and interest between them indicate the range of action for maintaining security peace and tranquillity of India whereas the expressions defence of India and civil defence connote defence of India and its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detained public disorder is the apprehended result. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression public order take in every kind of disorders or only some of them? The answer to this serves to distinguish public order from law and order because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other example ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der granted and/or apply for cancellation of bail. The mere successful obtaining of anticipatory bail/bail orders being the real ground for detaining the Detenu, there can be no doubt that the harm, danger or alarm or feeling of security among the general public spoken of in Section 2(a) of the Telangana Prevention of Dangerous Activities Act is make believe and totally absent in the facts of the present case. 15. At this stage, it is important to advert to the counter affidavit dated 17.07.2021 filed by the State of Telangana. Paragraph 18 of the counter affidavit refers to the granting of bail by Courts in all the five FIRs, which is the real reason for the passing of the Detention Order, as follows: 18. It is submitted that in the instant case, the decision to detain the detenu herein is based on the perusal of the material on records which revealed that the detenu was granted bail by the Courts concerned in all the five cases relied upon by the detaining authority for preventively detaining him. The Respondent No. 2 herein recorded his satisfaction that the activities of the detenu are prejudicial to the maintenance of public order, and that ordinary law may not be an effective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out that which was in the largest circle. But that consideration need not always apply because small local disturbances of the even tempo of life, may in a sense be said to effect public order in a different sense, namely, in the sense of a state of law abidingness vis-a-vis the safety of others. In our judgment the expression in the interest of public order in the Constitution is capable of taking within itself not only those acts which disturb the security of the State or act within ordre publique as described but also certain acts which disturb public tranquillity or are breaches of the peace. It is not necessary to give the expression a narrow meaning because, as has been observed, the expression in the interest of public order is very wide. Whatever may be said of maintenance of public order in the context of special laws entailing detention of persons without a trial on the pure subjective determination of the Executive cannot be said in other circumstances. In the former case this Court confined the meaning to graver episodes not involving cases of law and order which are not disturbances of public tranquillity but of ordre publique. 17. To tear these observations out of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements 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. [emphasis supplied] O. Chinappa Reddy,J., in a short concurring judgment also sets out the constitutional fundamentals qua preventive detention as follows: I entirely agree with my brother Venkataramiah, J. both on the question of interpretation of the provisions of the Bihar Control of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 190, this Court reiterated some of these principles as follows: 8. In case of preventive detention no offence is proved, nor any charge is formulated and the justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. (See R. v. Halliday [1917 AC 260 : (1916-17) All ER Rep Ext 1284 : 86 LJ KB 116 : 116 LT 417 (HL)] and Kubic Darusz v. Union of India [(1990) 1 SCC 568 : 1990 SCC (Cri) 227 : AIR 1990 SC 605] .) But at the same time, a person's greatest of human freedoms i.e. personal liberty is deprived, and, therefore, the laws of preventive detention are strictly construed, and a meticulous compliance with the procedural safeguard, however technical, is mandatory. The compulsions of the primordial need to maintain order in society, without which enjoyment of all rights, including the right of personal liberty would lose all their meanings, are the true justifications for the laws of preventive detention. This jurisdiction has been described as a jurisdiction of suspicion , and the compulsions to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution makes it a fundamental right of a person detained to consult and be defended by a lawyer of his choice. But Article 22(3) specifically excludes the applicability of clause (1) of Article 22 to cases of preventive detention. Therefore, we must confine the power of preventive detention to very narrow limits, otherwise the great right to liberty won by our Founding Fathers, who were also freedom fighters, after long, arduous and historical struggles, will become nugatory. This Court went on to discuss, in some detail, the conceptual nature of preventive detention law as follows: 29. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous and historic struggles . It follows, therefore, that if the ordinary law of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a crime in a criminal court a detention order can also be passed under a preventive detention law. 35. It must be remembered that in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as a jurisdiction of suspicion (vide State of Maharashtra v. Bhaurao Punjabrao Gawande [(2008) 3 SCC 613 : (2008) 2 SCC (Cri) 128] , SCC para 63). The detaining authority passes the order of detention on subjective satisfaction. Since clause (3) of Article 22 specifically excludes the applicability of clauses (1) and (2), the detenu is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however technical, is, in our opinion, mandatory and vital. 36. It has been held that the history of liberty is the history of procedural safeguards. (See Kamleshkumar Ishwardas Patel v. Union of India [(1995 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng him from acting in any manner prejudicial to public order is required and that such satisfaction is subjective and not objective. The object of the law of preventive detention is not punitive but only preventive and further that the action of the executive in detaining a person being only precautionary, normally, the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct in an exhaustive manner. The satisfaction of the detaining authority, therefore, is considered to be of primary importance with certain latitude in the exercise of its discretion. 15. The next contention on behalf of the detenu, assailing the detention order on the plea that there is a difference between law and order and public order cannot also be sustained since this Court in a series of decisions recognised that public order is the even tempo of life of the community taking the country as a whole or even a specified locality. [Vide Pushpadevi M. Jatia v. M.L. Wadhawan [(1987) 3 SCC 367 : 1987 SCC (Cri) 526] , SCC paras 11 14; Ram Manohar Lohia v. State of Bihar [AIR 1966 SC 740 : 1966 Cri LJ 608 : (1966) 1 SCR 709] ; Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of a given case, with particular regard being had to bail having been granted. This Court held: 23. Having carefully considered the submissions made on behalf of the respective parties, we are inclined to hold that the (sic exercise of) extraordinary powers of detaining an individual in contravention of the provisions of Article 22(2) of the Constitution was not warranted in the instant case, where the grounds of detention do not disclose any material which was before the detaining authority, other than the fact that there was every likelihood of Yumman Somendro being released on bail in connection with the cases in respect of which he had been arrested, to support the order of detention. 24. Article 21 of the Constitution enjoins that: 21. Protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law. In the instant case, although the power is vested with the authorities concerned, unless the same are invoked and implemented in a justifiable manner, such action of the detaining authority cannot be sustained, inasmuch as, such a detention order is an exception to the provisions of Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon 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. 9. No doubt, the offences alleged to have been committed by the appellant are such as to attract punishment under the Andhra Pradesh Prohibition Act, but that in our view has to be done under the said laws and taking recourse to preventive detention laws would not be warranted. Preventive detention involves detaining of a person without trial in order to prevent him/her from committing certain types of offences. But such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes which the detenu may have committed. After all, preventive detention in most cases is for a year only and cannot be used as an instrument to keep a person in perpetual custody without trial. Accordingly, while following the three-Judge Bench decision in Rekha case [(2011) 5 SCC 244 : (2011) 2 SCC (Cri) 596] we allow the appeal and set aside the order passed by the High Court dated 20- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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