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TMI Blog2022 (5) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... hat was reported over seven months prior to the detention order has no basis in fact. The apprehension of an adverse impact to public order is a mere surmise of the detaining authority, especially when there have been no reports of unrest since the detenu was released on bail on 8 January 2021 and detained with effect from 26 June 2021. The nature of the allegations against the detenu are grave. However, the personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding - The case at hand is a clear example of non-application of mind to material circumstances having a bearing on the subjective satisfaction of the detaining authority. The two FIRs which were registered against the detenu are capable of being dealt by the ordinary course of criminal law. The order of detention which has been passed against the detenu on 19 May 2021 shall accordingly stand quashed and set aside - Appeal allowed - decided in favor of appellant. - CRIMINAL APPEAL NO 561 OF 2022 (ARISING OUT OF SLP(CRL) NO 1788 OF 2022) - - - Dated:- 4-4-2022 - HON'BLE DR. JUSTICE D.Y. CHANDRACHUD AND HON'BLE MR. JUSTI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O, Police Station Chatrinaka on Sundays between 2 pm and 5 pm for a period of three months. The Court has been apprised of the fact that the charge-sheet has been submitted in the first case. 5 An order of detention was passed against the detenu on 19 May 2021 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 Telangana Act of 1986 . The order of detention was challenged before the High Court in a petition under Article 226 of the Constitution. The Division Bench of the High Court dismissed the petition by its impugned judgment and order dated 25 January 2022. 6 Mr A Sirajudeen, senior counsel appearing on behalf of the appellant, submits that there is ex facie, non-application of mind by the detaining authority while passi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss the context otherwise requires,- (a) acting in any manner prejudicial to the maintenance of public order means when a bootlegger, a dacoit, a drugoffender, 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 is making preparations for engaging, in any of his activities as such, which affect adversely, or are likely to affect adversely, the maintenance of public order: Explanation.-For the purpose of this clause public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia, if any of the activities of any of the persons referred to in this clause directly, or indirectly, is causing or calculated to cause any 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; *** ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants/youth and thus he has been acting in a manner prejudicial to the maintenance of public order apart from disturbing the peace, tranquillity and social harmony in the society . These alleged offences were noted as the grounds for his detention, in addition to the apprehension that he may violate the bail conditions and there is an imminent possibility of his committing similar offences, which would be detrimental to public order, unless he is prevented from doing so by an appropriate order of detention . 10 The detenu was released on bail on 8 January 2021 by the Additional Chief Metropolitan Magistrate, Hyderabad subject to the condition that he would have to report to the SHO of the Police Station concerned on a stipulated day every week till the charge sheet was filed. The order granting bail to the detenu in the second case provided that the detenu was subject to the condition of appearing once every week on Sunday before the Police Station concerned for a period of three months with effect from 11 January 2021. As a consequence, the conditions attached to the orders granting bail stood worked out in the month of April 2021. The order of detention dated 19 May 2021 has f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench held: 51. We have here a case of detention 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. 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 prob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the detention order was passed 9 months later on 28-9-2020. 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. 12. 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 pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been considered as relevant for arriving at the subjective satisfaction that the detenu must be detained. The detention order must be based on a reasonable prognosis of the future behaviour of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case. A detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. The essential 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. See G. Reddeiah v. State of A.P. [G. Reddeiah v. State of A.P., (2012) 2 SCC 389 : (2012) 1 SCC (Cri) 881] and P.U. Iqbalv. Union of India [P.U. Iqbal v. Union of India, (1992) 1 SCC 434 : 1992 SCC (Cri) 184]. 15 A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the maintenance of public order . In this case, the apprehension of a di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the instrumentality of the State is being weaponised for using the force of criminal law: 68. Mr Kapil Sibal, Mr Amit Desai and Mr Chander Uday Singh are undoubtedly right in submitting that the procedural hierarchy of courts in matters concerning the grant of bail needs to be respected. However, there was a failure of the High Court to discharge its adjudicatory function at two levels-first in declining to evaluate prima facie at the interim stage in a petition for quashing the FIR as to whether an arguable case has been made out, and secondly, in declining interim bail, as a consequence of its failure to render a prima facie opinion on the first. The High Court did have the power to protect the citizen by an interim order in a petition invoking Article 226. Where the High Court has failed to do so, this Court would be abdicating its role and functions as a constitutional court if it refuses to interfere, despite the parameters for such interference being met. The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponised for using the force of criminal law. Our courts must ensure that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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