Government cannot exercise preventive detention powers merely because the concerned person has been implicated in a criminal proceedings, the Supreme Court recently observed while setting aside a preventive detention order, reports Bar and Bench. A Division Bench of Justices DY Chandrachud and Surya Kant also took a stern view of what it termed “callous exercise” of preventive detention powers by the State of Telangana, noting that in the last five years, the apex court had quashed over five detention orders by Telangana.
It also noted that at least ten detention orders by Telangana government were set aside by the High Court of Telangana in the last one year itself.
“These numbers evince a callous exercise of the exceptional power of preventive detention by the detaining authorities and the respondent-state. We direct the respondents to take stock of challenges to detention orders pending before the Advisory Board, High Court and Supreme Court and evaluate the fairness of the detention order against lawful standards,” the Court directed.
In the present case, the Court noted that the accused-appellant had been detained on the basis of two first information reports (FIRs) registered against him and the same cannot be the sole basis to keep an accused under preventive detention.
“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 Court observed.
The bench was hearing an appeal challenging a decision of the Telangana High Court which had dismissed a Habeas Corpus petition moved by the appellant challenging his order of detention under Section 3(2) of the Telangana Prevention of Dangerous Activities Act 1986 (Telangana Act).
Background
Two First Information Reports (FIRs) were registered against the appellant under Sections 408, 420, 506 and 120B of the Indian Penal Code (IPC).
An order of detention was passed against the appellant (detenu) on May 19, 2021 which noted that the appellant-detenu was detained since he is a ‘white-collar offender’ under Section 2(x) of the Telangana Act of 1986 whose offence of cheating gullible job aspirants had been causing ‘large scale fear and panic among the gullible unemployed job aspirants/you.
He was thus, detained on the ground that he was acting in a manner prejudicial to the maintenance of public order apart from disturbing the peace, tranquility and social harmony in the society’.
The detention order also noted that the appellant had been granted conditional bail under the two FIRs.
Supreme Court judgment
The apex court noted that the order of detention was evidently based on stale material and demonstrated non-application of mind on the part of the detaining authority. The Bench noted that the detention order was passed nearly seven months after the registration of the first FIR and about five months after the registration of the second FIR.
In this backdrop, the Court observed that:
“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 disturbance to public order owing to a crime that 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.”
Moreover, the Bench was of the view that the two FIRs which were registered against the appellant-detenu are capable of being dealt by the ordinary course of criminal law instead of exercising the exceptional powers of preventive detention.
In view of the above, the Court quashed and set aside the order of detention of the appellant.
