Possible Apprehension Of Breach Of 'Law And Order ' Cannot Be A Ground For Preventive Detention: Supreme Court

The Supreme Court observed that a possible apprehension of breach of law and order cannot be a ground to detain a person under Preventive Detention Laws.

The bench headed by Justice RF Nariman observed 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.

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 bench also comprising Justice Hrishikesh Roy said while quashing a detention order passed against a person under 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.

In this case, the detention order referred to to five FIRs that have been filed against the Detenu, all the said FIRs being under Sections 420, 406 and 506 of the IPC. It also notes that anticipatory bail/bail has been granted to the Detenu in all the aforesaid FIR. The Advisory Board after considering the representation submitted by the detenue confirmed the detention. The wife of the detenu challenged this order before the High Court, and the same was rejected.

Expressions 'law and order', 'public order', and 'security of state' are different from one another.

In appeal the court noted that 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. The bench observed that the expressions 'law and order', 'public order', and 'security of state' are different from one another.

"13.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

14.There can be no doubt that what is alleged in the five FIRs pertain to the realm of 'law and order' in that various acts of cheating are 13 ascribed to the Detenu which are punishable under the three sections of the Indian Penal Code set out in the five FIRs. A close reading of the Detention Order would make it clear 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. 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."

Preventive detention is a necessary evil only to prevent public disorder,

Referring to observations made in Madhu Limaye v. Sub-Divisional Magistrate, the bench observed that preventive detention is a necessary evil only to prevent public disorder. It said:

17.To tear these observations out of context would be fraught with great danger when it comes to the liberty of a citizen under Article 21 of the Constitution of India. The reason for not adopting a narrow meaning of 'public order' in that case was because of the expression "in the interests of" which occurs to Article 19(2) to 19(4) and which is pressed into service only when a law is challenged as being unconstitutional for being violative of Article 19 of the Constitution. 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.

Allowing the appeal and quashing the detention, the bench said:

it is clear that 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. We, therefore, quash the detention order on this ground. Consequently, it is unnecessary to go into any of the other grounds argued by the learned counsel on behalf of the Petitioner. The impugned judgment is set aside and the Detenu is ordered to be freed forthwith. Accordingly, the appeal is allowed.

Case: Banka Sneha Sheela vs. State of Telangana ; CrA 733 of 2021

Coram: Justice RF Nariman and Hrishikesh Roy

Citation: LL 2021 SC 336

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