Preventive Detention Routinely Invoked In Telangana Despite SC Directions, Regrettable: High Court
The Telangana High Court has set aside the detention and subsequent proclamation order against a garment merchant from Maharashtra observing that bail was already granted to the accused in the two cases based on which, the detention order was passed, and the State is free to seek cancellation of bail if conditions are violated.While passing the order, the Division bench of Justice K. Lakshman...
The Telangana High Court has set aside the detention and subsequent proclamation order against a garment merchant from Maharashtra observing that bail was already granted to the accused in the two cases based on which, the detention order was passed, and the State is free to seek cancellation of bail if conditions are violated.
While passing the order, the Division bench of Justice K. Lakshman and Justice P. Sree Sudha noted that the purpose of issuing a detention order is to prevent the reoccurrence of illegal activities.
The Bench also pointed out the offence was not one of 'Public Order' but, 'Law and Order.' It was also noted that the order did not mention the duration of arrest and was passed outside of its territorial Jurisdiction.
Citing the judgements passed by the Apex Court and the Telangana High Court, the bench reiterated that a detention order should only be passed in the rarest of rare cases after thorough application of mind.
“It is regrettable that despite the directives of the Apex Court and this Court, preventive detention continues to be routinely invoked by the authorities in the State of Telangana. As stated supra, preventive detention should only be used in the most exceptional circumstances. It is only when an individual's actions have the potential to affect Public Order that preventive detention may be warranted. This Court has observed on numerous occasions that authorities often fail to differentiate between actions that impact Law and Order and those that impact Public Order. Therefore, it is imperative that the officers responsible for issuing detention orders are properly educated about the severe nature of preventive detention. Additionally, it is expected that authorities will accurately distinguish between situations involving Law and Order and those involving Public Order before ordering detention.”
The detention order stems from crimes alleged to have taken place in the year 2020, being punishable under 420, 468, 471 and 120-B of IPC and Section 66-C of the IT Act. The petitioner/accused was arrested, but released after a year upon being granted bail. The Magistrate while granting bail imposed curtained conditions. In June 2021, a detention order was passed and ratified by the State.
In 2023, a proclamation order was passed against the petitioner, after the petitioner was alleged to have evaded notice.
Seeking quashing of detention order and proclamation, petitioner contended that despite him not having violated any conditions in the bail order, the detention order was passed arbitrarily. Additionally, that the Preventive Detention Act, 1986 is applicable only in the State of Telangana, and the petitioner being a resident of Maharashtra, the order was absent of jurisdiction.
The State on the other hand contended that the petitioner was a Fake Document Offender, which was covered under the PD Act. That he has robbed the public of almost 2 core rupees, poses a serious threat to 'public order'. The prosecution also contended that the petitioner herein failed to surrender himself despite Court orders. Instances of previous criminal activity were also placed before the bench to show that there was a repetition in crime.
The Bench noted that the petitioner had gotten a stay on the order to surrender and hence it could not be said that he failed to surrender. Further, that if bail conditions were violated the State was free to approach the Court for cancellation.
“In the present case, the Petitioner was granted bail, after giving an opportunity of hearing to the State. If the Petitioner subsequently committed any offence or violated any condition of bail, the State ought to have approached the concerned Court for cancellation of bail.”
The Bench also confirmed that the PD Act being a State legislature could not order the detention of individuals residing out of the State.
In conclusion, the Bench noted that this is a quintessential example wherein the issuing officer, issued the detention order without any application of mind.
“The powers of preventive detention are exceptional and even draconian. Tracing their origin to the colonial era, they have been continued with strict constitutional safeguards against abuse. Article 22 of the Constitution was specifically inserted and extensively debated in the Constituent Assembly to ensure that the exceptional powers of preventive detention do not devolve into a draconian and arbitrary exercise of state authority. The case at hand is a clear example of non-application of mind to material circumstances having a bearing on the subjective satisfaction of the detaining authority.”
Thus, the Writ was allowed.
Case no.:WP 33560 of 2023
Case title: Chandrakanth Siddharth Kamble vs. State of TS.
Counsel for petitioner: A. Venkatesh (Sr.) & R.Anurag
Counsel for State Swaroop Oorella ( Spl Gov. Pleader)