Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

   

Jammu and Kashmir and Ladakh High Court: Moksha Khajuria Kazmi, J. dismissed a petition which was filed assailing the detention order in terms of Section (3) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (‘NDPS Act’) issued by the Divisional Commissioner, Kashmir (‘Detaining Authority’).

The petition contended that the Detaining Authority had passed the detention order on the basis of grounds of dossier, prepared by the SSP and it was urged that detenue has been falsely implicated in both the FIR’s, the detenue was bailed out by the competent court however after a gap of about two years and six months, detenue has been detained in terms of the impugned detention order on the bias of the material/dossier supplied by SSP. It was contended that the constitutional rights, guaranteed to the detenue stood infringed.

Counsel for respondents in their counter affidavit have resisted the petition on the ground that detention order has been passed in exercise of powers vested with Detaining Authority in terms of section 3 of NDPS Act, with a view to prevent the detenue from indulging in illegal trade of illicit traffic in narcotic drugs and psychotropic substance. It was further stated that the detention order does not suffer from any malice or legal infirmity, inasmuch as, the safeguards provided under the Constitution have been followed while ordering the detention of the detenue, as such, challenge thrown to the impugned order of detention is not sustainable.

The Court noted information received by the police that the detenue has hidden some narcotics in his residential house. Accordingly, police party along with Executive Magistrate reached the house and recovered Charas like substance. Also, on 07-08-2017 during Naka checking the detenue was caught with a polythene bag containing 400 gm of Charas and that despite arrest of the detenue in the aforesaid criminal cases, he has continued to do the same acts.

The Court mentioned that the Supreme Court, in several decisions, has held that even one prejudicial act can be treated as sufficient for forming requisite satisfaction for detaining a person.

“The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be, made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention and an order of preventive detention is also not a bar to prosecution. Discharge or acquittal of a person will not preclude detaining authority from issuing a detention order.”

The Court further relied on and reproduced the relevant paragraphs of the Supreme Court judgments in Haradhan Saha’s v. State of West Bengal, (1975) 3 SCC 198, Naresh Kumar Goyal v. Union of India, (2005) 8 SCC 276 and Union of India v. Chaya Ghoshal, (2005) 10 SCC 97 and concluded that it is not the number of acts that are to be determined for detention of an individual, but it is the impact of the act(s) which is material and determinative and in the instant case, acts of detenue relate to drug trafficking, which has posed serious threat, apart from health and welfare of the people to youth, most particularly unemployed youth, to indulge in such nefarious acts. Thus, the petition was dismissed.

[Manzoor Ahmad Lone v. UT of J&K, 2022 SCC OnLine J&K 696, decided on 31-08-2022]


Advocates who appeared in this case :

Sheikh Mohammad Saleem, Advocate, for the petitioner;

Sajad Ashraf, Advocate, for the respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In a case where a detenue filed for quashing of his detention order on the grounds of violation of constitutional mandate as laid down in Article 22 (5), a Division Bench of Siddharth Mridul and Rajnish Bhatnagar JJ., set aside the detention order as detenue is illiterate and the detention order must have been explained to him either in Hindi or any vernacular language, if he speaks or understands. Thus, the fact that he signed in English is not sufficient to form an opinion that he has full understanding of the language.

The present writ petition was filed under Article 226 read with Section 482 of Criminal Procedure Code (CrPC) seeking quashing of the impugned detention order passed by the Joint Secretary, Govt. of India u/s 3 (1) of Prevention of Illicit Traffic in Narcotics Drugs and Psychotropic Substances Act, 1988 (PITNDPS) and anorder passed by the Deputy Secretary, Govt. of India u/s 9(f) of the PITNDPS confirming the detention order for a period of one year.

Counsel for detenue submitted that there was no need to detain the detenue under PITNDPS as he is already in custody in a case under the stringent provisions of NDPS Act and there is no likelihood of his release from custody in the near future.

He further submitted that the detenue being an illiterate person, the order of detention was not properly communicated to detenue as the same is in English language.

The State opposed the petition contending that the detenuestated that “CD and CDR would be seen by his advocate” which goes to show that he understood everything, having the assistance of his advocate. It was further submitted that all the documents were signed by the detenue in “English” which clearly shows that the detenue understood the contents of the documents supplied and made the representation signed by his advocate.

Placing reliance on Chaju Ram v. State of Jammu & Kashmir, (1970) 1 SCC 536, Nainmal Partap Mal Shah v. Union of India, (1980) 4 SCC 427, Haribandhu Dass v. District Magistrate, Cuttack, (1969) 1 SCR 227, the Court noted that simply because the detenue has put his signatures in English does not by any stretch of imagination shows that he understands English and as a consequence understood the grounds of detention.

The Court further noted that the manner in which the signatures of the detenue were obtained on the documents, leaves no shadow of doubt that the contents of any of the documents/detention order were explained to the detenue in vernacular or the language that the detenue understands, i.e., Hindi. The detaining authority was under an obligation to communicate to the detenue the grounds of detention effectively and fully in a language in the present case “Hindi”, which the detenue understood even if that entailstranslation of the grounds to the language known to the detenue.

Thus, the Court held that where a detenue is illiterate, the mandate of Article 22(5) would be served only if the grounds of detention are explained to the detenue in a language that he understands, so as to enable him to avail the fundamental right of making an effective representation.

[Sharafat Sheikh v. UOI, 2022 SCC OnLine Del 2725, decided on 02-09-2022]


Advocates who appeared in this case:

Mr. Tanmaya Mehta, Ms. Shreya Gupta, Mr. Anurag Sahay and Ms. Mallika Bhatia, Advocates, for the Petitioner;

Mr. Chetan Sharma, ASG with Mr. Ajay Digpaul, CGSC with Mr. Soumava Karmakar, Mr. Kamal Digpaul with Mr. Rakesh Duhan, Inspector, Narcotics Cell, Crime Branch, Advocates, for the defendant.


*Arunima Bose, Editorial Assistant has put this story together.

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir and Ladakh High Court: While dismissing the petition seeking release from preventive detention to the detenu involved in Pulwama conspiracy, Tashi Rabstan, J., remarked,

“Acts or activities of individual or a group of individuals, prejudicial to the security of the State or public order, has magnitude of across-the boarder disfigurement of societies. No court should tune out such activities, being swayed by passion of mercy.”

The District Magistrate had placed one Muntazir Ahmad Bhat under preventive detention with a view to prevent him from acting in any manner prejudicial to the security of the State. The case of the petitioner (father of the detenu) was that the detenu was arrested and detained under Section 8 of the J&K Public Safety Act, 1978 on false and flimsy grounds without any justification in terms of the impugned detention order.

The grounds of revealed that the detenu met with various terrorists of banned organisation, as Jaish-e-Mohammad (JeM) under whose influence the detenu developed radical ideology and had worked for their unlawful organization by extending all possible logistic support to the terrorists enabling them to carry out the terrorist attack in the area successfully. The detenu was a close accomplice of active terrorist namely Yasir Ahmad Parray. The detenu along-with the said Yasir Ahmad Parray had purchased a Maruti car in the year 2019 and on the instructions of one terrorist, a foreign original namely Junaid Bhat R/o Pakistan loaded the said Maruti car with IED and exploded it on the road near Arihal Village of District Pulwama by targeting patrolling vehicle of 44 RR and also indulged in indiscriminate firing upon the said army patrolling party with the motive and intention to kill them, resulting into martyrdom of 1 army person and injuries to various army personnel. Further, 1 HE-36 hand grenade was also recovered from the compound of detenue’s house.

Observing that there was a likelihood of the detenu recycling into subversive activities, the Bench opined that it will make difficult for the security forces to maintain the public order and safeguard the security of the State and to return the normalcy in the valley if the detenu is released for detention. The Bench remarked,

 “Those who are responsible for national security or for maintenance of public order must be the sole judges of what the national security, public order or security of the State requires.”

Further, holding that extremism, radicalism, terrorism have become the most worrying features of the contemporary life, the Bench expressed that though violent behaviour is not new, the contemporary extremism, radicalism, terrorism in its full incarnation have obtained a different character and poses extraordinary threats to civilized world. Hence, to keep a check on the illegal activities of the detenu the Bench dismissed the petition holding it to be devoid of merit. [Muntazir Ahmad Bhat v. UT of J&K, 2021 SCC OnLine J&K 900, decided on 12-11-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: G. N. Shaheen, Advocate

For the UT of J&K: Mir Suhail, AAG

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Rabindranath Samanta and Soumen Sen, JJ., allowed a writ petition which was filed invoking the “jurisdiction of suspicion” in view of the order of detention passed by the Joint Secretary to the Government of India on 1st April, 2021 under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988 (as amended), (in short PITNDPS Act). The petitioner was directed to be detained and kept in Malda Correction Home, Kolkata.

  • A case under Narcotic Drugs and Psychotropic Substance Act, 1985 was initially initiated against the persons including the petitioner in connection with recovery of 384.21 kg of ganja on 29th June, 2017 from a truck. The contraband was claimed to have been concealed behind the cabin of the truck.
  • On the basis of the complaint filed on behalf of NCB, a NDPS Case No. 111 of 2017 was initiated by the appropriate Court at Kamrup and thereafter trial commenced before the learned Additional Sessions Judge No.2, Kamrup(M), Guwahati. The record reveals that the petitioner was absconding and non-bailable warrant of arrest was issued against the absconder/petitioner repeatedly since 2nd May, 2018 until he was arrested on 12th December, 2019 in connection with the another NDPS Case, this time at Malda.
  • While he was on detention, in relation to the Malda case, the petitioner filed an application for bail before a Coordinate Bench. The prayer for bail was allowed by the Coordinate Bench on 21st December, 2020. The petitioner presumably could not immediately avail the benefits of bail due to financial difficulty and arranging sureties until 30th March, 2021 to furnish his bail bond.
  • During pendency of execution of warrant of arrest on 1st April, 2021, the authorities passed an order of preventive detention.
  • Based on the documents and the materials placed before the detaining authority and considering the motive of detenu, the detaining authority recorded its satisfaction with regard to the detenu’s continued tendency and inclination to indulge in acts of the illicit traffic and narcotic drugs and psychotropic substance in a planned manner. The modus operandi according to the detaining authority adopted by the detenu with his associate gives rise to the reasonable apprehension that if he is not detained he would indulge in similar activities of illicit traffic and narcotic drugs and psychotropic substance.

Counsel for the petitioner submitted that the order of detaining authority was on a colourable exercise of power and the purpose and motive behind the said order was to set at naught the order passed by the Hon’ble Division Bench in releasing the petitioner on bail. It was further submitted that the apprehension the detenu was likely to be released from the custody and hence a preventive detention order is required to be passed, is completely a misuse of the power and in any event, having regard to the fact that the petitioner was in custody, there was no requirement to pass any preventive detention order.

Additional Solicitor General appearing on behalf of the respondents submitted that the preventive detention is different from criminal prosecution and the two are mutually exclusive. 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. The only requirement is that the detaining authority has to come to the satisfaction that there exists a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same.

The Court explained,

Personal liberty of an individual is precious, invaluable and to be jealously secured and protected. The word “preventive” is different from ‘punitive’ as said by Lord Finley in R.V. Haliday reported in 1917 AC 260.

The law of preventive detention operate harshly on the accused and, therefore, it should be strictly construed and should not be used merely to clip the wings of the accused who has involved in the criminal prosecution. Freedom from arbitrary arrest is a basic human right recognised over the years. This right has been preserved and respected whenever there has been cases of preventive detention unless there were compelling necessity or reasons.

The Court perused the order of detention and found that authority did not even issue any detention order during custody. There was no fresh material available to the detaining authority subsequent to his arrest in relation to the Malda case or after the coordinate bench presided over by Justice Bagchi granted bail to the petitioner on 21st December, 2020.

The Court was of the opinion that in the instant case all materials that were available before the Division bench at the time of granting bail were also available with the detaining authority prior and subsequent to the order granting bail to the petitioner. Curiously the detaining authority did not challenge the order of the coordinate bench before a higher forum or apply for cancellation of bail. The detaining authority accepted the order of the coordinate bench dated 21st December, 2020 and the said order is still in force.

The Court was not satisfied with the explanation offered for not being able to produce the detenue before the Kamrup court in execution of the warrant of arrest or the production warrant as the detenue was well within the reach of the detaining authority as he was languishing in the correctional home at Malda. The Court drew support from the judgments of Dharmendra Suganchand Chelawat v. Union of India, (1990) 1 SCC 746 and Khudiram Das v. State of West Bengal, AIR 1975 SC 550.

The Court finally set aside the order of the detaining authority and the opinion of the Central Advisory Board setting the petitioner free.[Heisnam Chaoba Singh v. Union of India, 2021 SCC OnLine Cal 2691, decided on 05-10-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


For the Petitioner: Mr Uday Sankar Chattopadhyay, Mr Dibakar Sardar, Mr Pronay Basak, Mr Santanu Maji, Ms Snigdha Saha, Mr Subhayu Das

For the Union of India: Mr Y.J. Dastoor, Ld. A.S.G,Mr Vipul Kundalia, Ms Anamika Pandey

For the State: Mr Saibal Bapuli, A.P.P., Mr Md. Sabir Ahmed

For the respondents no. 7 to 9: Mr Phiroze Edulji, Mr Arijit Mazumdar

Case BriefsSupreme Court

Supreme Court: In a case where the Government caused unreasonable delay in considering the representation and thereafter failed to communicate the rejection to a person detained under Section 3(2) of National Security Act 1980 (NSA), the 3-judge bench of Dr. DY Chandrachud, Vikram Seth and BV Nagarathna, JJ has held that the procedural rights of the detenu emanating from Article 22 of the Constitution and Section 8 of the NSA were not sufficiently protected in the present case.

“The State Government cannot expect this Court to uphold its powers of subjective satisfaction to detain a person, while violating the procedural guarantees of the detenu that are fundamental to the laws of preventive detention enshrined in the Constitution.”

Case Timeline 

  • The order of detention was passed on 11 May 2021 and the appellant was detained on 12 May 2021.
  • The order of detention was approved by the State Government on 13 May 2021, upon which the State Government submitted the order of detention to the Central Government on the same day.
  • On 18 May 2021, the detenu submitted a simultaneous representation before the District Magistrate, State Government and the Central Government.
  • The representation was communicated by the District Magistrate to the State Government and the Central Government on 20 May 2021.
  • Representation was rejected by the Advisory Board on 15 June 2021.
  • The State Government rejected the representation, after the decision of the Advisory Board. While the affidavit filed before the High Court, did not specify the date on which the representation was rejected by the State Government, but leaves no manner of doubt that until the representation was rejected by the Advisory Board on15 June 2021, no steps had been taken by the State Government to deal with the appellant’s representation dated 18 May 2021. However, the counter-affidavit of the District Magistrate showed that the representation was rejected by the State Government on 15 July 2021.
  • The Supreme Court was neither provided with a copy of such rejection or proof of communication of this rejection to the detenu, nor an explanation for the almost 60 day delay in considering the appellant’s representation.

Analysis of the Law

Article 22(5) of the Constitution

Article 22(5) of the Constitution mandates that

  • the authority making the order shall “as soon as may be” communicate the grounds on which the order has been made to the person detained; and
  • the detaining authority shall afford to the person detained “the earliest opportunity of making a representation against the order”.

Clause 5 of Article 22 incorporates a dual requirement: first, of requiring the detaining authority to communicate the grounds of detention as soon as may be; and second, of affording to the detenu “an earliest opportunity” of making a representation. Both these procedural requirements are mutually reinforcing. The communication, as soon as may be, of the grounds of detention is intended to inform the detenu of the basis on which the order of detention has been made. The expression “as soon as may be” imports a requirement of immediacy.

In the absence of the grounds being communicated, the detenu would be left in the dark in regard to the reasons which have led to the order of detention. The importance which the constitutional provision ascribes to the communication of the grounds as well as the affording of an opportunity to make a representation is evident from the use of the expression “as soon as may be” in the first part in relation to communicating the grounds and allowing the detenu “the earliest opportunity” of availing of the right to submit a representation. .

“The significance of Article 22 is that the representation which has been submitted by the detenu must be disposed of at an early date. The communication of the grounds of detention, as soon as may be, and the affording of the earliest opportunity to submit a representation against the order of detention will have no constitutional significance unless the detaining authority deals with the representation and communicates its decision with expedition.”

National Security Act, 1980

The provisions of the National Security Act 1980 subscribe to the mandate of Article 22(5). Section 3(4) contains a requirement that once an order of detention has been made, the officer making the order must forthwith report the fact to the State Government, together with the grounds on which the order has been made and other particulars which have a bearing on the matter. No such order should remain in force for more than twelve days, unless it has been approved by the State Government. In the meantime, this period is subject to the proviso which stipulates that where the grounds of detention are communicated by the officer after five days (under Section 8) but not later than ten days from the date of the detention, sub-section (4) will apply as if the words fifteen days stands substituted for twelve days. Upon the State Government either making or approving the order under Section 3, it is under a mandate under Section 3(5) to report the fact to the Central Government within seven days, together with the grounds on which the order has been made and other necessary particulars.

Article 22(5) of the Constitution provides for the communication of the grounds on which the order of detention has been made by the detaining authority “as soon as may be”. Section 8(1) uses the expression “as soon as may be”, qualifying it with the requirement that the communication of grounds should ordinarily not be later than five days and, in exceptional circumstances, for reasons to be recorded in writing not later than ten days from the date of detention. Section 8(1) also embodies the second requirement of Article 22(5) of affording to the detenu the earliest opportunity of making a representation against the order to the appropriate government.

Under Section 10, the appropriate government has to place the grounds on which the order of detention has been made within three days from the date of detention of the person together with a representation, if any, made by the person affected by the order. The Advisory Board, under the provisions of Section 11, has to submit its report to the appropriate government within seven weeks from the date of detention order after considering the relevant materials. It may call for further information from the appropriate government, or any person, or even the person concerned if they desire an opportunity to be heard in person.

Under Section 12, when the Advisory Board has reported that in its opinion there is a sufficient cause for the detention of a person, the appropriate government may approve an order of detention and continue the detention of the person for such period as it thinks fit. On the other hand, where the Advisory Board reports that in its opinion there is insufficient cause for detention, the appropriate government shall revoke the detention order and cause the person to be released forthwith.

In terms of clause (a) and (b) of sub-section (1) of Section 14, both the State Government and the Central Government have the power to revoke an order of detention.

Ruling on Facts

The Court noticed that there was absolutely no reasonable basis for explaining the circumstances in which the representation dated 18 May 2021 was not considered by the State Government until after the Advisory Board had submitted its report on 15 June 2021.

In Ankit Ashok Jalan v. Union of India, (2020) 16 SCC 127 had held that in State Government is not bound to wait on the Advisory Board’s report before deciding the representation and must do so, as expeditiously as possible.

However, in spite of awaiting the receipt of the report of the Advisory Board which was eventually issued on 15 June 2021, the State Government took another one month in arriving at a decision on the appellant’s representation dated 18 May 2021. The State Government did not furnish any valid reasons for either of the two courses of action.

The Court hence, held that by delaying its decision on the representation, the State Government deprived the detenu of the valuable right which emanates from the provisions of Section 8(1) of having the representation being considered expeditiously.

It was, hence, held that,

“The delay by the State Government in disposing of the representation and by the Central and State Government in communicating such rejection, strikes at the heart of the procedural rights and guarantees granted to the detenu. It is necessary to understand that the law provides for such procedural safeguards to balance the wide powers granted to the executive under the NSA.”

[Sarabjeet Singh Mokha v. District Magistrate, Jabalpur, 2021 SCC OnLine SC 1019, decided on 29.10.2021]


Counsels

For appellant: Senior Advocate Sidharth Luthra

For State: Saurabh Mishra, Additional Advocate General


*Judgment by: Justice Dr. DY Chandrachud

 

Case BriefsSupreme Court

Supreme Court: In a case where the detenu was accused of committing a series of criminal offences from October, 2017 to December, 2019 such as cheating in the guise of providing good profit to people by investing their money in stock market and collecting huge amounts to the tune of more than Rs. 50 lakhs, the bench of RF Nariman and Hrishikesh Roy, JJ quashed the detention and held that in such a case,

“… at the highest, a possible apprehension of breach of law and order can be said to be made out if it is apprehended that the Detenu, if set free, will continue to cheat gullible persons. This may be a good ground to appeal against the bail orders granted and/or to cancel bail but certainly cannot provide the springboard to move under a preventive detention statute.”

The case that revolved around Section 3(2) of the Telangana Prevention of Dangerous Activities Act, 1986[1], led to a wider discussion on the true import of “public order” and the Court held that a possible apprehension of breach of law and order cannot be a ground to move under a preventive detention statute.

The Court explained,

“When a person is preventively detained, it is Article 21 and 22 that are attracted and not Article 19. Further, preventive detention must fall within the four corners of Article 21 read with Article 22 and the statute in question. To therefore argue that a liberal meaning must be given to the expression ‘public order’ in the context of a preventive detention statute is wholly inapposite and incorrect. On the contrary, considering that preventive detention is a necessary evil only to prevent public disorder, the Court must ensure that the facts brought before it directly and inevitably lead to a harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large.”

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 public health.

Explaining that the expressions ‘law and order’, ‘public order’, and ‘security of state’ are different from one another, the Court said that,

“Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects ‘law and order’ but before it can be said to affect ‘public order’, it must affect the community or the public at large.”

Further, 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.

In the case at hand, what was alleged in the five FIRs pertained to the realm of ‘law and order’ in that various acts of cheating are ascribed to the Detenu which are punishable under the three sections of the Penal Code set out in the five FIRs. A close reading of the Detention Order showed that the reason for the said Order is not any apprehension of widespread public harm, danger or alarm but is only because the Detenu was successful in obtaining anticipatory bail/bail from the Courts in each of the five FIRs. In such circumstances, the Court held that,

“If a person is granted anticipatory bail/bail wrongly, there are well-known remedies in the ordinary law to take care of the situation. The State can always appeal against the bail order granted and/or apply for cancellation of bail. The mere successful obtaining of anticipatory bail/bail orders being the real ground for detaining the Detenu, there can be no doubt that the harm, danger or alarm or feeling of security among the general public spoken of in Section 2(a) of the Telangana Prevention of Dangerous Activities Act is make believe and totally absent in the facts of the present case.”

[Banka Sneha Sheela v. State of Telangana, 2021 SCC OnLine SC 530, decided on 02.08.2021]


*Judgment by: Justice RF Nariman

Know Thy Judge| Justice Rohinton F. Nariman

For petitioner: Advocate Gaurav Agarwal

For State: Senior Advocate Ranjit Kumar


[1] 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 1 Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of B V Nagarathna and Hanchate Sanjeev Kumar, JJ. allowed the petition and directed the release of the petitioner.

The facts of the case are such that the petitioner is a resident of Bengaluru and owing to financial difficulties, he was constrained to discontinue his studies in 9th standard and was forced to take up hard menial jobs for supporting his family and is herein alleged to be engaged in criminal activities creating an atmosphere of fear among the general public.

The Court observed that the petitioner submitted a detailed representation to the second respondent as well as the Chairman of the Advisory Board (though, by then, the report had already been submitted by the Advisory Board) through the third respondent on 12.01.2021, setting out several grounds for revocation of the detention order. This plea has to be considered in light of the fact that there was an earlier representation made by the petitioner but the same has been suppressed before this Court. Therefore, this is not a case where there was no representation made by the petitioner prior to the report of the Advisory Board or confirmation of the order of detention by the State on receiving of the said report.

The Court observed that in the instant case there has been no consideration of the representation made by the petitioner under Section 14 of the Act till date, as it was made on 12.01.2021 and there has been a lapse of five months.

Whether, in the absence of consideration of the representation of the petitioner which was made on the continuation of the detention of the petitioner is valid or vitiated?

The most significant right that a detenu has is to have his representation considered, under Section 14 of the Act as early as possible i.e., at the earliest point of time from its submission to the jail authority. The right of consideration of a representation made by the detenu under Section 14 of the Act is a critical and important right. Section 14 of the Act envisages a duty on the State Government regarding consideration of the representation at the earliest point of time and to communicate the order disposing of the representation to the detenu, which is a facet of the principles of natural justice.

Therefore, in order to avoid hardship or prejudice being caused to the detenu inasmuch as his right to liberty under Article 21 is affected, the representation must be considered at the earliest point of time. In addition, there should be a communication of the order passed on the representation, either, accepting the same and releasing the detenu forthwith by revocation of the order of detention or a modification of a detention order wherein there could be a shorter period of detention, then what has been ordered in the confirmatory order under Section 12 read with Section 13 of the Act. More importantly, if the representation is rejected, then there must be reasons assigned for doing so and the order of rejection along with the reasons must be communicated to the detenu. Any delay in supplying the order of rejection of the representation would also cause prejudice to the detenu as he would be deprived of his right to seek remedy vis-à-vis the order of rejection, which may prove fatal to the order of preventive detention. In other words, consideration of a representation made by a detenu, post confirmation of the order of preventive detention is to be read into the principles of natural justice and also Article 21 of the Constitution. Non-consideration of such a representation would also be arbitrary and oppressive and therefore, an infraction of Articles 14 as well as 21 of the Constitution.

It is trite that the law of preventive detention must not only comply with Article 22 of the Constitution, but also fulfill the mandate of Articles 21 and 14.

The non-consideration of the representation in the instant case has adversely affected the right of the petitioner inasmuch as the failure of the State Government to consider the representation till date is an instance of infraction of Article 21 of the Constitution of India.

The Court observed that it is settled law that an order of preventive detention is made on the subjective satisfaction of the detaining authority. The Act also provides for revocation or modification of the order of detention. Such a power could be exercised suo motu by the State. It is a power coupled with the duty when it is exercised on the detenu under Section 14 of the Act is a right of the detenu and a corresponding duty is cast on the State Government, then administrative delay cannot imperil the said right. Inordinate delay in considering the said representation could lead to release of the detenu. Even though Section 14 does not prescribe any time limit for consideration of the said representation, the same must be considered at the earliest point of time.

Following guidelines/directions are issued even after the confirmation order is made by the State, the obligation to act under Section 14 of the Act cannot be ignored:

(i) That whenever an order of detention is followed by an order of confirmation of detention made by the State under Section 12 read with Section 13 of the Act, liberty is reserved to the detenu to make a representation;

(ii) In such a case, the representation would have to be considered by the State under Section 14 of the Act in the context of revocation or modification of the order of detention;

(iii) Such a representation, when made to the Jail Superintendent/Jail Authority by the detenu, must be transmitted to the concerned officer/authority who is vested with the responsibility/obligation to consider such a representation at an earliest possible time. The use of technology in this regard has to be underscored. Such a representation can be scanned or sent in any other instantaneous mode by the Jail Authority to the concerned officer or authority;

(iv) If a case-worker is entrusted with the file of a particular detenu, it is the duty of the case-worker to put up the representation immediately on receipt of the same before the concerned officer or authority for consideration of the same;

(v) For the said purpose, the State has to devise a system or channel under which such representations could reach the concerned officer or authority in an expeditious manner.

(vi) On such representation being placed before the concerned authority or officer, the same has to be considered as expeditiously as possible and in the earliest point of time. What is the said time cannot be defined in specific terms. The same would depend upon the nature of the representation made by the detenu.

(vii) It is needless to observe that precious time cannot be lost in the transmission of the representation to the concerned department and thereafter, in placing the same by the case worker before the concerned officer or authority. Hence, the State may issue further guidelines/directions in that regard to all the jail authorities/jail superintendents wherein persons are detained under the respective laws provided for preventive detention so that the representations made post confirmation of such detention are considered in time under Section 14 of the Act.

(viii) On consideration of the representation of the detenu, the order made thereon must be communicated to the detenu through the concerned jail authorities so that if the order is for release of the detenu, he is released forthwith or if it is modification of the detention order, in which event, it could be an earlier release and the same would also have to be intimated to the detenu. Similarly, if the representation is rejected, it must also be communicated to the detenu forthwith so as to enable the detenu to take recourse in accordance with law.

(ix) On such communication being sent, the jail authority, which receives the same, must inform the authority which has made the order, about the receipt of communication and about the intimation of the said communication to the detenu.

(x) The State Government to issue guidelines to the respective jail authorities and other officers/authorities in the Department of Home Affairs with regard to the aforesaid directions.

The Court held “..In the absence of detenu’s representation being considered till date, it has led to violation of his rights under Article 21 of the Constitution of India.”

“…..we find that the petitioner cannot be detained any further under the order of the preventive detention dated 25.09.2020.”

[Rizwan Pasha v. Commissioner of Police, Writ Petition Habeas Corpus No.29 of 2021, decided on 15-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

Counsel for Petitioner: Adv. Tigadi Veeranna Gadigeppa

Counsel for respondent: Adv. V.S. Hegde and Adv. Thejas P.

Telangana High Court
Case BriefsHigh Courts

Telangana High Court: The Division Bench of A. Rajasheker Reddy and Dr Shameem Akhter, JJ.,  while addressing the matter has shed some light on the distinction between “Public Order” and “Law & Order”.

Petitioner filed the present petition on behalf of his son challenging the detention order passed by the Police Commissioner, respondent 3.

Respondent 3 submitted that detenu is a ‘Sexual Offender’ as defined in clause (V) of Section 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 (Act 1 of 1986).

Further, it was submitted that the detenu had committed penetrative aggravated sexual assault on a minor, three times. Subsequently, detention order was passed. Hence the present petition.

Issue for determination:

Whether the detention order passed by respondent 3 and the confirmation order passed by the Principal Secretary to Government, General Administration (Spl. Law and Order) Department, Government of Telangana are liable to be set aside?

Analysis and Decision

[Law & Order v. Public Order]

Supreme Court in several decisions had clearly expressed that there is a vast difference between “law and order” and “public order”.

The offences which are committed against a particular individual fall within the ambit of “law and order”. It is only when the public at large is adversely affected by the criminal activities of a person, is the conduct of a person said to disturb the
“public order”.

Individual cases can be dealt with by the criminal justice system, hence there is no need for detaining authority to invoke the draconian preventive detentions laws against an individual.

Supreme Court in its decision of Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740, had deprecated the invoking of the preventive law in order to tackle a law and order problem.

In Kanu Biswas v. State of West Bengal, (1972) 3 SC 831, following was the Supreme Court’s opinion:

The question whether a man has only committed a breach  of law and order or has acted in a manner likely to cause a  disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. Public order is what the French call ‘order publique’ and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an  act affects law and order or public order, as laid down in  the above case, is: Does it lead to disturbance of the  current of life of the community so as to amount to a disturbance of the public order or does it affect merely an  individual leaving the tranquility of the society undisturbed?”

Further, Court relied on the decision of Vijay Narain Singh v. State of Bihar, (1984) 3 SCC 14,  wherein it was held that a single act or omission cannot be characterised as a habitual act or omission because, the idea of ‘habit’ involves an element of persistence and a tendency to repeat the acts or omissions of the same class or kind, if the acts or omission in question are not of the same kind or even if they are of the same kind when they are committed with a long interval of time between them, they cannot be treated as habitual ones.

Bench observed that in the present atter, the detenu was being prosecuted for committing a heinous offence of penetrative aggravated sexual assault on a girl aged 13 years. He was granted bail by the Court of Session on conditions.

If the State was aggrieved with the bail of detenu, they should have approached the Higher Court to seek cancellation Bail, they instead passed the impugned detention order.

All the cases under POCSO Act are being put on the fast track. It is brought to the notice of this Court that no charge- sheet had been filed.

In Court’s opinion, the bald statement made, wherein it was stated that: considering the detenu’s involvement in heinous activities and his release from prison on bail, there is imminent possibility of his indulging in similar shameful and inhuman acts of sexual assault on minor girls and women exploiting their innocence in a deceptive manner which are detrimental to public order, would not justify the impugned detention order.

Hence, the detaining authority failed to demonstrate the necessity to pass the impugned detention order invoking the draconian preventive detention laws.

Colourable Exercise of Power

Bench noted that due to the acquaintance/friendship, the detenu took the victim girl to a secluded place where he committed sexual intercourse and thus fulfilled his sexual desire and on the next day morning,  he let off the victim girl.

Therefore, it cannot be held that the detenu would indulge in similar prejudicial activities in future. Under these circumstances, the detaining authority is not justified in passing the order of detention, which tantamount to colourable exercise of power.

Was there any disturbance to ‘Public Order’?

High Court in view of the facts and circumstances of the case expressed that grave as the offence may be, it relates to penetrative aggravated sexual assault on a minor girl. So, no inference of disturbance of public order could be drawn.

Therefore, the present case falls under the ambit of “law and order”.

In view of the above discussion, present petition was allowed. [Charakonda Chinna Chennaiah v. State of Telangana, 2021 SCC OnLine TS 261, decided on 23-02-2021]


Advocates who appeared before the Court:

Counsel for the Petitioner: Dr. B. Karthik Navayan

Hot Off The PressNews

Jammu and Kashmir Government revoked the preventive detention of Jammu and Kashmir’s Former Chief Minister.

Abdullah was under preventive detention since August 5 last year, the day the Centre abrogated the special status of Jammu and Kashmir. He was the first chief minister against whom the PSA was invoked.

What the Order said?

“In exercise of power conferred under section 19(1) of the Jammu and Kashmir Public Safety Act, 1978, the Government hereby revokes the detention order bearing DMS/PSA/120?2019 dated 15-09-2019 issued by the District Magistrate, Srinagar, extended for a period of 3 months, vide government order Home /PB-V/668 of 2020 dated 11.03.2020 of Dr Farooq Abdullah s/o Late Sheilh Mohammad Abdullah R/ Gupkar Road Srinagar with immediate effect,”


Media Reports

Image Credits: DNA India
Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: Tashi Rabstan J., in a matter relating to preventive detention declined to provide opinion over that of detaining authority and reiterated that the object of preventive detention is not to punish a man but to prevent from any further acts.

The present case relates to the detenu, Mian Abdul Qayoom who is a renowned Practising Senior Advocate in the Jammu and Kashmir High Court and is also the President of the High Court Bar Association. The detenu had been placed under preventive detention in the year 2010 and after several confinements in various Sub Jails of the state, the detention order was withdrawn. The detenu was said to have been arrested during August 2019 and has been lodged into police custody under preventive detention. Upon several enquires as to the grounds of detention the close relatives of the detenu received an order and it was reported that the detenu was suffering from various ailments.

Advocates, Z.A. Shah, with Manzoor A. Dar, representing the petitioner submitted that the impugned order of detention issued by the respondent had not been communicated nor provided to detenu, which deprived the petitioner of making an effective representation before detaining authority. It was also submitted that the grounds of detention were signed by the respondents without any application of mind and without going through the grounds of detention. It was pointed out that the respondents had relied upon the FIRs registered in the year 2008 and 2010 for detaining the detenu, for which the petitioner had already served the required detention.

Senior Additional Advocate General representing the state,  B. A. Dar contended that the detenu was detained legally under the J&K Public Safety Act, 1978 (“Act of 1978”) and all statutory requirements have complied. It was contended that the contents of detention order/warrant and grounds of detention are stated to have been read over and explained to detenu. Grounds of detention have been framed by detaining authority with a complete application of mind after carefully examining the material/record furnished to it by sponsoring agency and only after deriving subjective satisfaction

The Court upon perusal of the facts and circumstances of the case reiterated the purpose of the Act of 1978 that “the purpose of the J&K Public Safety Act, 1978, is to prevent the acts and activities prejudicial to security of the State or maintenance of public order. The acts, indulged in by persons, who act in concert with other persons and quite often such activity has national level consequences….it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention.” The Court on examining the records stated that the grounds for detention are definite, proximate and free from any ambiguity. The Court placed reliance on State of Gujarat v. Adam Kasam Bhaya, (1981) 4 SCC 216 and observed that it is a settled law that the High Court in the proceedings under Article 226 of the Constitution has limited scope to scrutinizing whether detention order has been passed on the material placed before it, it cannot go further and examine sufficiency of material. It also relied on State of Punjab v. Sukhpal Singh, (1990) 1 SCC 35 and stated that the High Court does not sit in appeal over the decision of detaining authority and cannot substitute its own opinion over that of detaining authority when grounds of detention are precise, pertinent, proximate and relevant. Upon reliance to various Supreme Court decisions the Court concluded that the present matter lies within the competence of Advisory Board since preventive detention is not punitive but preventive and is resorted to with a view to prevent a person from committing activities regarded as prejudicial to certain objects that the law of preventive detention seeks to prescribe. [Mian Abdul Qayoom v. State of J&K, 2020 SCC OnLine J&K 96, decided on 07-02-2020]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: Ali Mohammad Magrey, J. quashed the detention order of Masood Ahmad Bhat while directing for his release from the preventive custody.

Denetu, Masood Ahmad Bhat, sought quashing of detention order dated 22-01-2019.

The grounds of which the detention order was challenged were as follows:

  • No compelling reason or circumstance was disclosed in the order; more so on the date of the passing of the order of detention, the detenu was already in custody.
  • Material forming detenu’s order of detention not provided in order to make representation
  • Detaining authority did not prepare grounds of detention itself; which is a pre-requisite before passing any order.

On receiving the notice passed to the respondents they submitted that the order was in consonance to fact and law and they further sought the dismissal of Habeas Corpus Petition.

Counsel for the petition submitted that in light of the above-stated grounds and the fact that the detenu was already in custody leaves no possibility of detenu being implicated in the activities prejudicial to the security, sovereignty and integrity of the State. Detention Order has been passed in absence of any material and the same is therefore bad in law. He also referred to the Supreme Court case, T.V. Sravanan v. State, (2006) 2 SCC 664.

Observations of the Court

Bench stated that the only precious and valuable right guaranteed to a detenu is of making an effective representation and the same can be done only when the relevant material and grounds of the detention are made available to the detenu.

Since the material is not supplied, right of the detenu to file such representation is impinged upon. Bench relied on the following cases for the said point, Ibrahim Ahmad Batti v. State of Gujarat, (1982) 3 SCC 440, Khudiram Das v. State of W.B., (1975) 2 SCC 81 & Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531.

Court examined the present case on the touchstone of the above-settled position of law and perusal for the record, the detenu was not supplied the materials relied upon by the detaining authority. Therefore, the detention of the detenu is vitiated.

Court also added that detenu was involved in the substantive offence and did not apply for bail for the same, thus he can remain in custody for that unless released on bail.[Masood Ahmad Bhat v. State of J&K, 2019 SCC OnLine J&K 791, decided on 25-09-2019]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: Rashid Ali Dar, J. allowed a habeas corpus petition and quashed detention order of a person who had been under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. (hereinafter “the Act”).

Petitioner herein (detenue) was supplying 50 bottles of fenoerox to retailers as per the order placed with his employer. He was stopped by the police and booked under Section 8 read with Section 22 of Act; and was taken into preventive detention under Section 3 of the Act. He filed the instant petition challenging the detention order on the ground that detaining authority had not applied its mind to the provisions of the Act and particularly Article 22(5) of the Constitution of India. Further, the allegations mentioned in the grounds of detention were vague. Lastly, the detaining authority had not recorded its satisfaction to the effect that ordinary law is not sufficient to prohibit the detenue to repeat the offence. Thus, the order was bad in law and liable to be set aside.

Z.A. Qureshi, learned counsel for the  petitioner contended that the impugned order of detention or the grounds of detention formulated by the detaining authority did not indicate any compelling reason necessitating preventive detention of the petitioner after he had already been taken in custody by police for alleged commission of offence under Sections 8 and 22 of the NDPS Act. Thus, his preventive detention was illegal for the same having been passed at a time when petitioner was in the custody of the authorities of the State. It was also contended that the ground for detention was vaguely stated as “exploiting the young generation making them dependent on drugs and to make them habitual addicts”, which incapacitated the petitioner to make an effective representation in terms of Article 22(5) of the Constitution of India.

Javaid Iqbal, learned counsel for the respondent submitted that the detention order was proper as activities of the petitioner were prejudicial to the State. In this regard, he placed reliance on Sections 6, 9, 10 and 11 of the Jammu and Kashmir Prevention of Illicit Traffic Substance Act, 1988.

The Court opined that normally preventive detention of a person, who is already in custody of the State agencies in connection with the commission of offence under substantive law allegedly committed, must not be ordered. Preventive detention of such a person can be ordered only if the detaining authority has “compelling reasons” to believe that he is likely to be released in the substantive offence either on bail or due to his acquittal or discharge. Reliance in this regard was placed on Dharmendra Suganchand Chelawat v. Union of India, (1990) 1 SCC 746.

It was noted that at the time of passing the detention order, the petitioner was already in custody in connection with offence under Sections 8 and 22 of NDPS Act, which is a non-bailable offence. The detaining authority had not recorded any reason to believe that there was any possibility of immediate release of the petitioner from custody. Normal law, could properly deal with the matter in hand. Further, relying on Chaju Ram v. State of Jammu and Kashmir, (1970) 1 SCC 536 it was opined that the allegations levelled against the petitioner were vague and the same invalidated his detention order.

In view of the above, the petition was allowed.[Manzoor Ahmad Khawaja  v. State of Jammu and Kashmir, 2019 SCC OnLine J&K 579, decided on 01-07-2019]

Case BriefsSupreme Court

Supreme Court: Stating that the subjective satisfaction of the detaining authority under COFEPOSA is not immune from judicial reviewability, the bench of R. Banumathi and AS Bopanna, JJ has held that,

“the court must be conscious that the satisfaction of the detaining authority is “subjective” in nature and the court cannot substitute its opinion for the subjective satisfaction of the detaining authority and interfere with the order of detention.”

The Court dealing with a case where a huge volume of gold had been smuggled into the country unabatedly in the last three years and about 3396 kgs of the gold had been brought into India during the period from July 2018 to March, 2019 camouflaging it with brass metal scrap. The detaining authority recorded finding that this has serious impact on the economy of the nation. Detaining authority also satisfied that the detenues have propensity to indulge in the same act of smuggling and passed the order of preventive detention, which is a preventive measure.

Holding that the High Court erred in interfering with the satisfaction of the detaining authority, the Court refused to accept the contention that the courts should lean in favour of upholding the personal liberty,

“the liberty of an individual has to be subordinated within reasonable bounds to the good of the people. Order of detention is clearly a preventive measure and devised to afford protection to the society. When the preventive detention is aimed to protect the safety and security of the nation, balance has to be struck between liberty of an individual and the needs of the society.”

The Court, hence, upheld the detention of the Gold smuggler.

[Union of India v. Dimple Happy Dhakad, 2019 SCC OnLine SC 875, decided on 18.07.2019]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Rashid Ali Dar, J., allowed a petition filed against the order of respondent authorities, whereby petitioner was taken into preventive custody and lodged in Central Jail, Kotebhalwal, Jammu.

The main issue that arose before the Court was whether an order of preventive detention can be passed while the accused is already in police custody.

The Court observed that as per the judgment of Sama Aruna v. State of Telangana, (2018) 12 SCC 150, it is a settled proposition of law that a person cannot be taken into preventive detention while he is already in police custody. In that case, the Supreme Court had held that an order of preventive detention cannot be passed against an accused while considering a stale incident which took place a long time ago. The Court further observed that it was incumbent on the part of the person, who did the exercise of handing over the documents and conveying the contents thereof to the detenu, to file an affidavit in order to attach a semblance of fairness to his actions.

The Court held that the respondents in the instant matter had placed the petitioner under preventive detention while he was already in police custody; this action on the part of respondents is unjustified. Further, the respondents did not even supply the material to the petitioner, which formed the basis of the order of preventive detention. Resultantly, the petition was allowed and the order of preventive detention was quashed.[Farooq Ahmad Bhat v. State of J&K,2018 SCC OnLine J&K 924, order dated 01-12-2018]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Rashid Ali Dar, J., allowed a petition filed against the order of District Magistrate, Anantnag, under Section 8 of the J&K Public Safety Act, whereby the petitioner was placed under preventive detention.

The main issue that arose before the Court was whether the order passed by the detaining authority was good in law.

The Court observed that even though the petitioner was granted bail in the concerned criminal case, he was not released, rather he was taken into custody vide the impugned detention order. In the detention order there is no mention of bail which was granted to the petitioner and hence it can be fairly concluded that there was non-application of mind on the part of detaining authorities. The Court further observed that the materials which formed the basis of detention order were not supplied to the petitioner. The Court then referred to the Supreme Court judgment of Thahira Haris v. Government of Karnataka, (2009) 11 SCC 438, wherein it was held that in cases where documents forming ground for detention are not supplied to the detenue, the order of detention becomes illegal.

The Court held that the order of detention passed by the detaining authorities was illegal since there was non-application of mind while passing the order and the materials that formed the very basis of such an order were not supplied to the petitioner. Non-supply of materials rendered the petitioner helpless in filing an appropriate representation against such an order and it also violated the fundamental right of petitioner guaranteed to him under Article 22(5) and (6) of the Constitution of India. Resultantly, the order of detention was quashed and the petition was allowed. [Subeel Javid v. State of J&K,2018 SCC OnLine J&K 758, order dated 23-10-2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: In the judgment delivered by the Bench of Tashi Rabstan, J., in the appeal against the order of District Magistratre, Baramulla, the Court allowed the petition and quashed the detention order against the detenu. The appellant was implicated in case FIR No. 266/2016 but was later granted bail. The detenu in compliance with the bail condition went to the police station when called again, where he was detained in case FIR No. 259/2016 and put in jail by the impugned detention order. Both the FIR’s related to detenu being responsible for organising anti-government protests and instigating the youth in Baramulla. He was also categorically said to be involved in voluntary stone pelting incidents in various areas of Baramulla.

The Court held that Article 22(3)(b) of the Constitution of India is only an exception to Article 21, further observing that fundamental rights are meant to protect the civil liberties of people and to prevent the misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and complied along with procedural safeguards, which is mandatory and vital. The respondents have not tendered explanation whatsoever as to why the order of detention has been issued after such a long delay of more than ten months from the date of the alleged criminal activity, which has been made edifice for satisfaction to pass the impugned order of detention and during the period of delay no fresh activity has been attributed to the detenu. The unexplained delay has snapped proximity of the detention order with the time its alleged requirement arose and also the detaining authority has not given any explanation for the delay in passing the impugned order of detention.

The Court relying on V. Shantha v. State of Telangana2017 SCC OnLine SC 623 held that preventive detention cannot be resorted to when sufficient remedies are available under the general laws of the land for any omission or commission under such laws and to classify the detenu as a notorious stone pelter it is not sufficient to invoke statutory powers of preventive detention. [Ishfaq Ahmad Kumar v. State of J.K.,  2017 SCC OnLine J&K 724, decided on 29.11.2017]

Case BriefsHigh Courts

Allahabad High Court: The High Court dismissed a habeas corpus petition brought before it in a case of cow slaughter in front of a temple. The apprehension of disturbance of public order due to hurting of religious sentiments led to the arrest of the petitioner.

The Sub-Inspector of the area received information that the petitioner, along with a group of people, is slaughtering a cow or its progeny near a temple. On apprehension of communal riots, the police arrested three persons including the petitioner. The FIR was lodged under Sections 147, 148, 149 and 307 IPC and the order of detention was passed under Section 3(2) of the National Security Act.

It was stated by the Court that the question of application of mind in the detention order is to be decided by comparison of detention of detention order with the dossier of the sponsoring body. The various changes in the order at multiple places indicate application of mind. Regarding the question of discriminatory approach of the authority it has been stated that there is no parity amongst all the accused and detention depends on the satisfaction of subjective matter by the authority. These are individual cases and parity or lack thereof is not a determining factor to claim discrimination. The final question in the case was whether the act affected public order or law and order. It was conclusively determined that when the cow was slaughtered in a public place and in full public view, it leads to hurting of religious sentiments and incites communal tension. Hence it cannot be treated as a case of law and order only but also that of public order.

The Court further observed that the purpose of preventive detention is not to punish but to prevent. The main aim of this is to protect the public and the society at large and prevent the person from committing a crime which would disrupt public life. On all these grounds the petition was dismissed. [Wasi thru. Mohd. Rafi v. State of U.P., 2017 SCC OnLine All 1880, decided on 03.07.2017]

 

Telangana High Court
Case BriefsHigh Courts

High Court of Andhra Pradesh and Telangana: The detention of one Chirraboina Krishna Yadav under the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 was questioned by his wife in a writ petition before a Division Bench comprising of C.V. Nagarjuna Reddy and J. Uma Devi, JJ. The writ petition was allowed and the detention order was quashed.

The contention of the respondent State was that the detenu had been involved in as many as 26 offences between 1989 and 2012; externed from Hyderabad for six months; and detained for a period of one year. However, he had been accused of five more offences since his release and in order to protect the family of one of the complainants in the two criminal cases that the respondents relied on and also to maintain public order, it was necessary to detain the detenu.

Accepting the arguments forwarded by the petitioner, the Court relying on a plethora of landmark judgments of the Supreme Court and on various decisions of High Courts, discussed the difference between ‘law and order’ and ‘public order’. Since the accusations against the detenu centred on only one family and did not involve the public at large, the concern was regarding disturbing law and order and not public order.

It was held that “preventive detention of a person is an extreme measure resorted to by the State when ordinary criminal law is found not adequate to control his activities which cause disturbance to public order.” The Court also noted that the prosecution had failed to show as to out of the 31 cases the detenu had been accused in, how many resulted in a conviction and in how many he was acquitted. The Court also observed that the law enforcement, investigation and prosecution agencies needed to “overhaul the whole criminal law enforcement system by plugging the huge gaping holes.” [C. Neela v. State of Telangana, 2017 SCC OnLine Hyd 224, decided on  27.06.2017]

Case BriefsSupreme Court

Supreme Court: In the case where the detenu was detained under the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 for selling the spurious seeds to poor farmers and acquiring illegal gains at their expense his illegal activities, the Court said that classifying the detenu as a “goonda” affecting public order, because of inadequate yield from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of preventive detention.

The appellant, the detenu’s wife, had contended that the detenu was already in custody in two other cases. The order of detention does not consider the same, setting out special reasons for an order of preventive detention, with regard to a person already in custody.

The order of preventive detention mentioned that the illegal activities of the detenu were causing danger to poor and small farmers and their safety and financial well-being and that recourse to normal legal procedure would be time consuming, and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the preventive detention Act as an extreme measure to insulate the society from his evil deeds.

Setting aside the abovementioned order, the bench of L. Nageswara Rao and Navin Sinha, JJ said that the rhetorical incantation of the words “goonda” or “prejudicial to maintenance of public order” under the Act cannot be sufficient justification to invoke the draconian powers of preventive detention. The grounds of detention are ex-facie extraneous to the Act. The Court, however, clarified that there will not be any prejudice to the prosecution of the detenu under the ordinary laws of the land. [V. Shantha v. State of Telangana, 2017 SCC OnLine SC 623, decided on 24.05.2017]