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On August 2, the Supreme Court quashed a detention order passed against a man booked for duping people for money promising high returns, while observing that mere contravention of law cannot be said to affect ‘public order’, unless it affects the community or the public at large. The bench of Justices RF Nariman and Hrishikesh Roy cited several relevant judgements to point out the difference between disturbance to law and order and disturbance to public order.
Background
The appellant, Banka Sneha Sheela (wife of the detenu) had filed an appeal against the March 31 judgement passed by Telangana High Court dismissing the writ petition challenging the preventive detention under Telangana Prevention of Dangerous Activities Act. There were 5 FIRs filed against the detenu related to a case of cheating by soliciting money from the complainants promising high returns. The detention order mentions that the detenu had been granted anticipatory bail in all the FIRs registered against him but having regard to his involvement in series of criminal activities, the court was satisfied that free movement of an offender like him is not safe in the interest of the society as there is an imminent possibility of him indulging in similar prejudicial activities with another set of innocent youth and cheat them on the pretext of providing good profit.
The detention order said, “Further your acts have been adversely affecting the maintenance of public order and creating feeling of insecurity among young people, thus disturbing peace and tranquillity in the area. It is imperative to prevent you from acting in any manner prejudicial to the maintenance of public order. I feel that recourse to normal law may not be effective deterrent-in preventing you from indulging in such further activities prejudicial to the maintenance of public order in the area, unless you were detained…”
The detention order was passed on October 31, 2020, and was confirmed by the Advisory Board on November 11, 2020; the detention was to continue for one year. The impugned judgement of the high court noted that since the detenu was already granted bail the contentions in the detention order that the detenu would disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order and there is imminent possibility of the detenu again indulging in similar prejudicial activities, cannot be brushed aside.
The judgement stated thus,
“Since the detenu got bail in all the five cases relied upon by the detaining authority, there is nothing wrong on the part of the detaining authority in raising an apprehension that there is every possibility of the detenu committing similar offences, which would again certainly affect the public order. The quick succession of commission of alleged offences by the detenu makes it amply clear that there is every possibility of detenu committing similar offences in future, which are prejudicial to the maintenance of public order.”
Arguments
The counsel for the appellant pointed out that the FIRs were filed in December 2019, while the detention order was passed in October 2020. Therefore, there was no proximate or live connection between the acts complained of and the date of the Detention Order. He further argued that at best only a law and order issue would arise based on the facts of the case and not a ‘public order’ problem. He further argued that the Detention Order was totally perverse in that it was passed only because anticipatory bail was granted, and the State should have instead moved the court to cancel the bail instead.
The counsel for the State, Ranjit Kumar, argued that the Detenu was a habitual fraudster who had therefore created fear amongst the gullible public, and since he was likely to commit similar offences in future, it was important to preventively detain him, as the ordinary law had no deterrent effect on him. He also argued that the detenu had disturbed the even tempo of life of persons who were cheated by him, and were likely to be cheated by him.
The court’s observations
The court firstly analysed the definition of “public order” under the Act where it was stated that “public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia, if any of the activities of any of the persons referred to in this clause directly, or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave wide-spread danger to life or public health”.
The court held that 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.
The court cited Ram Manohar Lohia v. State of Bihar (1966) 1 SCR 709 whereby the court had set out the distinction between a mere law and order disturbance and a public order disturbance. The judgement had stated that, “Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression “public order” take in every kind of disorders or only some of them? The answer to this serves to distinguish “public order” from “law and order” because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder…The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large.”
The court adopted this precedent verbatim and stated, “There can be no doubt that for ‘public order’ to be disturbed, there must in turn be public disorder. 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.”
The court held that what is alleged in the FIRs pertains to the realm of ‘law and order’ but the reason for detention is not any apprehension of widespread public harm, danger or alarm but is only because the Detenu was successful in obtaining anticipatory 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,” the court said.
The court refused to take a liberal meaning of the expression of public order. It also pointed out that preventive detention must fall within the four corners of Article 21 read with Article 22 and the statute in question.
“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,” held the court.
The court also emphasised upon the role of courts in scrutinising preventive detention orders. The court cited Vijay Narain Singh v. State of Bihar (1984) 3 SCC 14 whereby it was held that, “It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.” In the concurring judgement, Justice O Chinappa Reddy had stated, “Preventive detention is considered so treacherous and such an anathema to civilised thought and democratic polity that safeguards against undue exercise of the power to detain without trial, have been built into the Constitution itself and incorporated as Fundamental Rights…the courts are required to examine, when demanded, whether there has been any excessive detention, that is whether the limits set by the Constitution and the Legislature have been transgressed. Preventive detention is not beyond judicial scrutiny.”
In Union of India v. Yumnam Anand (2007) 10 SCC 190, the court had held, “No law is an end itself and the curtailment of liberty for reasons of State’s security and national economic discipline as a necessary evil has to be administered under strict constitutional restrictions. No carte blanche is given to any organ of the State to be the sole arbiter in such matters.”
In Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, the court had deemed Article 22 to be an exception to Article 22 of the Constitution and held that Article 22 cannot be read in isolation. The court further made a very important observation about legality of a detention order, “Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal.”
In Mungala Yadamma v. State of A.P. (2012) 2 SCC 386, the court held that the offences therein were of a nature which can be dealt with under the ordinary law of the land and that taking recourse to preventive detention is contrary to the constitutional guarantees enshrined in Articles 19 and 21 of the Constitution.
The court’s decision
The court held that at the most, “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,” the court stated that this can be a ground for appealing against the bail granted but “certainly cannot provide the springboard to move under a preventive detention statute”.
The court, thus, quashed the detention order and set aside the high court’s judgement as well, while also directing the release of the detenu.
The complete judgement may be read here:
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