SC quashes preventive detention based on stale material and non-application of mind

Telangana's law on preventive detention, with perhaps the longest title, comes under scrutiny of the Supreme Court.

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THE Supreme Court, on Monday, held that the personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in criminal proceedings. The court made this observation while quashing the detention of a man under 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.

A division bench of Justices D.Y. Chandrachud and Surya Kant was ruling on an appeal filed by one Mallada K. Sri Ram, accused of hatching a plan to collect money from individuals by misrepresenting that they would be given jobs, and bank accounts would be opened in their names. It also took a grim view of the preventive detention orders passed by the Telangana Government without application of mind and based on stale material.

The Court observed that it quashed over five detention orders under the Telangana Act of 1986 for inter alia incorrectly applying the standard for maintenance of public order and relying on stale materials while passing the orders of detention.

"At least ten detention orders under the Telangana Act of 1986 have been 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 orders against lawful standards", the bench held.

In the present case, a first information report [FIR] was registered on October 15, 2020, against the detenu and others for offences punishable under Sections 408 (criminal breach of trust by clerk or servant), 420 (cheating and dishonestly inducing delivery of property), 506 (punishment for criminal intimidation) and 120B (punishment of criminal conspiracy) of the Indian Penal Code [IPC]. On December 17, 2020, another FIR was registered against the detenu for offences punishable under sections 408, 420 and 120B of IPC based on similar allegations at the behest of another complaint. The detenu was arrested, in the first case, on December 17, 2020, and, in the second case, on the execution of a prisoner transit warrant on January 4, 2021.

In the first case, he was released on bail on January 8, 2021, subject to the condition that he would appear before the Station House Officer [SHO], on Mondays between 10.30 a.m. and 5 p.m. till the filing of the charge sheet. In the second case, he was released on bail by an order dated January 11, 2021, subject to the condition that he would appear before the SHO on Sundays between 2 p.m. and 5 p.m. for a period of three months.

However, an order of detention was passed against the detenu on May 19, 2021. The order of detention stated that the detenu is a 'whitecollar offender' under Section 2(x) of the Telangana Act of 1986 whose offence of cheating gullible job aspirants has been causing "large scale fear and panic among the gullible unemployed job aspirants/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." The High Court dismissed the writ petition filed by the detenue.

Disapproving of the high court judgment and quashing the detention order, the Supreme Court held that the order of detention suffered from a non-application of mind.

Besides, the Court observed that the order of detention was passed nearly seven months after the registration of the first FIR and about five months after the registration of the second FIR.

"The order of detention is evidently based on stale material and demonstrates non-application of mind on the part of the detaining authority to the fact that the conditions which were imposed on the detenu, while granting bail, were duly fulfilled and there was no incidence of a further violation. In the counter affidavit which was filed before the High Court, the detaining authority expressed only an apprehension that the acts on the basis of which the FIRs were registered were likely to be repeated in the future, thereby giving rise to an apprehension of a breach of public order. The High Court has failed to probe the existence of a live and proximate link between the past cases and the need to detain the detenu after seven months of registration of the first FIR and nearly five months of securing bail", the Supreme Court held.

It also held that 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 on 8 January 2021 and detained with effect from 26 June 2021", the Court said.

The court also took exception to the lackadaisical approach of the government before it. It said that despite notice having been served on the respondents, no counter affidavit had been filed. The court decided to decline the request for an adjournment for filing a counter-affidavit since a detailed and comprehensive counter-affidavit that was filed before the High Court was already on its record. However, the court rebuked the government and said, "The liberty of the citizen cannot be left to the lethargy of and the delays on the part of the state".

Click here to view the Supreme Court's judgment.