Telangana HC | When can detaining authority pass a detention order? Court explains the importance of preventive detention laws

Telangana High Court: A Division Bench of Raghvendra Singh Chauhan, CJ and B. Vijaysen Reddy, J., while addressing the present petition observed the following:

“The preventive detention laws cannot be invoked as an easy way method bypassing the ordinary law and if a detention order is passed, it is very much necessary for the detaining authority to apply its mind and arrive at a conclusion that ordinary law is not capable of acting deterrent against the detenu and thus, detention order needs to be passed.”

Commissioner of Police had passed a detention order against Mohd. Nawaz in the exercise of powers under 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, Fertilizer 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 (Amendment Act No.13 of 2018) which has been challenged as being illegal and arbitrary.

Counsel for the petitioner was Pendya Swathi and T. Srikanth Reddy, Government Pleader for Home for the respondents.

It was noted that the detaining authority considered five cases as grounds for his detention.

Courts concerned had granted conditional bails in all the 5 five cases wherein the bail petitions by the detenu were moved.

Prosecution opposed the grant of bail even after that the Courts concerned granted the detenu conditional bails.

If the detaining authority feels that even after strongly opposing the bail, the concerned Courts have granted bail, it is always left open for the authorities to move an application for cancellation of bail either before the same Court or higher Court.

Further, the Court stated that the State cannot take advantage of its own lapses, whereby, on one hand, the State does not effectively oppose the bail application or seeks cancellation of bail and on the other hand, the State finds an easy way method to pass detention order by invoking preventive detention laws.

Supreme Court’s decision in Sudhir Kumar Saha v. Commr. of Police, Calcutta, (1970) 1 SCC 149, it was observed that,

“…The power to detain is an exceptional power to be used under exceptional circumstances. It is wrong to consider the same, as the executive appears to have done in the present case, that it is a convenient substitute for the ordinary process of law.”

Bench also observed that an order of detention has to be resorted to as an extreme and last step only when attempts made by the authorities to deal with and prosecute the detenu under ordinary law do not yield results.

Court stated that the crimes mentioned against the detenu relate to specific individuals/victims and come within the ambit of maintenance of law and order and not public order.

Hence the impugned detention order is unsustainable and was therefore set aside.[Mohd. Jaffar v. State of Telangana, 2020 SCC OnLine TS 1030, decided on 03-09-2020]

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