(A) 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, Section 3(2), 2(g) – Preventive detention – Challenge as to –Held that mere registration of the two FIRs for the alleged offences of robbery etc. could not have been made the basis to invoke the provisions of the Act 1986 for the purpose of preventively detaining the appellant herein on the assumption that he is a “GOONDA” as defined under Section 2(g) of the Act 1986 – What has been alleged against the appellant detenu could be said to have raised the problems relating to law and order but find it difficult to say that they impinged on public order – In order to bring the activities of a person within the expression of “acting in any manner prejudicial to the maintenance of public order” the activities must be of such a nature that the ordinary laws cannot deal with them or prevent subversive activities affecting society – Inability on the part of the state’s police machinery to tackle the law and order situation should not be an excuse to invoke the jurisdiction of preventive detention – Detaining Authority in its order of detention has clearly stated that he has taken into consideration only the two FIRs registered for the alleged offence committed within his territorial jurisdiction – Detaining Authority in clear terms has stated that he could not have made the other two FIRs referred to in the order of detention as the basis for arriving at the subjective satisfaction that the activities of the appellant detenu are prejudicial to the maintenance of the public order – However, after saying so, the Detaining Authority has in so many words stated that the other two FIRs have been considered to look into the criminal history of the appellant detenu – In the aforesaid context, the Detaining Authority is not correct and he could be said to have taken into consideration something extraneous – If the Detaining Authority thought fit to eschew from its consideration the two FIRs registered outside his territorial jurisdiction then he could not have made such FIRs as the basis to arrive at the subjective satisfaction that the appellant detenu is a history sheeter – If at all the Detaining Authority wanted to take into consideration the two FIRs registered with the police station not falling within his territorial jurisdiction then he should have recorded the subjective satisfaction that the incidence of the two FIRs created “public disorder” – Impugned judgment and order passed by the High Court liable to be set aside – Consequently, the order of detention also liable to be quashed and set aside – The appellant detenu be set at liberty forthwith if not required in any other case. (Para 32, 35,36, 40 and 64)
(B) 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, Section 3(2), 2(g) – Preventive detention – 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 – The basis of detention is the satisfaction of the executive about the likelihood of the detenu acting in a manner, similar to his past acts, which is likely to affect adversely the maintenance of public order and, thereby prevent him, by an order of detention, from doing the same – A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between the prosecution in a Court of law and a detention order under the Act 1986. One is a punitive action and the other is a preventive act. In one case a person is punished on proof of his guilt, and the standard is proof beyond the reasonable doubt, whereas in the other a person is detained with a view to prevent him from doing such act(s) as may be specified in the Act authorizing preventive detention – An order of preventive detention is also not a bar to prosecution. (Para 24 and 25)
(C) 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, Section 3(2) – Preventive detention – Public order – Law and order – The crucial issue is whether the activities of the detenu were prejudicial to public order – While the expression ‘law and order’ is wider in scope inasmuch as contravention of law always affects order, ‘Public order’ has a narrower ambit, and could be affected by only such contravention, which affects the community or the public at large – Public order is the even tempo of life of the community taking the country as a whole or even a specified locality – The distinction between the areas of ‘law and order’ and ‘public order’ is one of degree and extent of the reach, of the act in question on society – It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order – If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only.(Para 32)
(D) Constitution of India, Article 21, 32 and 226 – Writ of habeas corpus – Duty of Court – Held that it is the duty of the Court to issue this writ to safeguard the freedom of the citizen against arbitrary and illegal detention – Habeas corpus is a remedy designed to facilitate the release of persons detained unlawfully, not to punish the person detaining and it is not, therefore, issued after the detention complained of has come to an end – It is a remedy against unlawful detention – It is issued in the form of an order calling upon the person who has detained another, whether in prison or in private custody, to ‘have the body’ of that other before the Court in order to let the Court know on what ground the latter has been confined and thus to give the Court an opportunity of dealing with him as the law may require – By the writ of habeas corpus, the Court can cause any person who is imprisoned to be brought before the Court and obtain knowledge of the reason why he is imprisoned and then either set him free then and there if there is no legal justification for the imprisonment, or see that he is brought speedily to trial – Habeas Corpus is available against any person who is suspected of detaining another unlawfully and not merely against the police or other public officers whose duties normally include arrest and detention – The Court must issue it if it is shown that the person on whose behalf it is asked for is unlawfully deprived of his liberty – The writ may be addressed to any person whatsoever an official or a private individual-who has another in his custody – The right which is sought to be enforced by such a writ is a fundamental right of a citizen conferred under Article 21 of the Constitution of India. (Para 30)
(E) 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, Sections 9 to 12- Preventive Detention – Role of the Advisory Board – Held that preventive detention being a draconian measure, any order of detention as a result of a capricious or routine exercise of powers must be nipped in the bud – It must be struck down at the first available threshold and as such, it should be the Advisory Board that must take into consideration all aspects not just the subjective satisfaction of the detaining authorities but whether such satisfaction justifies detention of the detenu – The Advisory Board must consider whether the detention is necessary not just in the eyes of the detaining authority but also in the eyes of law – An Advisory Board whilst dispensing its function of ascertaining the existence of a “sufficient cause” for detention, cannot keep itself unconcerned or oblivious to the developments that have taken place by a plethora of decisions of this Court delineating the criterion required to be fulfilled for passing an order of detention – The “independent scrutiny” as envisaged by Article 22 includes ascertaining whether the detention order would withstand the scrutiny a court of law – Entire purpose behind creation of an Advisory Board is to ensure that no person is mechanically or illegally sent to preventive detention – In such circumstances, the Advisory Boards are expected to play a proactive role. The Advisory Board is a constitutional safeguard and a statutory authority – It functions as a safety valve between the detaining authority and the State on one hand and the rights of the detenu on the other – The Advisory Board should not just mechanically proceed to approve detention orders but is required to keep in mind the mandate contained in Article 22(4) of the Constitution of India. (Para 59 to 63)
(F) 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, Section 3(2), 2(g) – Preventive Detention – Conclusions Summarized as under: –
(i) The Detaining Authority should take into consideration only relevant and vital material to arrive at the requisite subjective satisfaction,
(ii) It is an unwritten law, constitutional and administrative, that wherevera decision-making function is entrusted to the subjective satisfaction of the statutory functionary, there is an implicit duty to apply his mind to the pertinent and proximate matters and eschew those which are irrelevant & remote,
(iii) There can be no dispute about the settled proposition that the detention order requires subjective satisfaction of the detaining authority which, ordinarily, cannot be questioned by the court for insufficiency of material. Nonetheless, if the detaining authority does not consider relevant circumstances or considers wholly unnecessary, immaterial and irrelevant circumstances, then such subjective satisfaction would be vitiated,
(iv) In quashing the order of detention, the Court does not sit in judgment over the correctness of the subjective satisfaction. The anxiety of the Court should be to ascertain as to whether the decision-making process for reaching the subjective satisfaction is based on objective facts or influenced by any caprice, malice or irrelevant considerations or non-application of mind,
(v) While making a detention order, the authority should arrive at a proper satisfaction which should be reflected clearly, and in categorical terms, in the order of detention,
(vi) The satisfaction cannot be inferred by mere statement in the order that “it was necessary to prevent the detenu from acting in a manner prejudicial to the maintenance of public order”. Rather the detaining authority will have to justify the detention order from the material that existed before him and the process of considering the said material should be reflected in the order of detention while expressing its satisfaction,
(vii) Inability on the part of the state’s police machinery to tackle the law and order situation should not be an excuse to invoke the jurisdiction of preventive detention,
(viii) Justification for such an order should exist in the ground(s) furnished to the detenu to reinforce the order of detention. It cannot be explained by reason(s) / grounds(s) not furnished to the detenu. The decision of the authority must be the natural culmination of the application of mind to the relevant and material facts available on the record, and
(ix) To arrive at a proper satisfaction warranting an order of preventive detention, the detaining authority must, first examine the material adduced against the prospective detenu to satisfy itself whether his conduct or antecedent(s) reflect that he has been acting in a manner prejudicial to the maintenance of public order and, second, if the aforesaid satisfaction is arrived at, it must further consider whether it is likely that the said person would act in a manner prejudicial to the public order in near future unless he is prevented from doing so bypassing an order of detention . For passing a detention order based on subjective satisfaction, the answer of the aforesaid aspects and points must be against the prospective detenu. The absence of application of mind to the pertinent and proximate material and vital matters would show lack of statutory satisfaction on the part of the detaining authority.(Para 43)
SUPREME COURT OF INDIA
2024 STPL(Web) 191 SC
[2024 INSC 239]
Nenavath Bujji Etc. Vs. State Of Telangana And Ors.
Criminal Appeal Nos. 1738-39 of 2024 (Arising Out of Slp(Crl.) Nos. 3390-91 of 2024)-Decided on 21-03-2024
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