Telangana High Court: The present writ petition was filed by the petitioner to declare/quash the Preventive Detention Order dated 02-06-2021 and proclamation notice dated 24-01-2023 issued by Respondent 2, as illegal. The Division Bench of K. Lakshman and P. Sree Sudha, JJ., opined that issuance of Preventive Detention order which drastically curtailed the petitioner’s right to liberty under Article 21 of Constitution was certainly neither the most suitable nor the least restrictive method of preventing the petitioner from engaging in any further alleged criminal activity. The Court held that there was no necessity for the detaining authority to issue the impugned detention order as the regular laws were adequate to address the present matter and thus, resorting to preventive detention laws was unwarranted and was liable to be set aside.
Background
The petitioner was engaged in the garment trading business in the State of Maharashtra and was issued a proclamation notice dated 24-01-2023 in April 2023. Thereafter, Respondent 2 issued a Preventive Detention order against him on 02-06-2021, declaring him as a Fake Document Offender under Section 2(p) of the Telangana Prevention of Dangerous Activities of Boot-Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders etc. Act, 1986 (‘the 1986 Act’). The petitioner contended that in the proclamation notice, it was alleged that notices issued against him have been returned unserved despite all efforts, and he was wilfully absconding and concealing himself to evade the execution of the alleged detention order dated 02-06-2021, thereby obstructing the process of law.
The petitioner contended that the Preventive Detention order was causing serious injury to his life and liberty as a citizen, and it was an extreme measure employed by the State when ordinary criminal law was insufficient to control activities causing disturbance to Public Order. He further contended that the State had sufficient remedies available under the general laws for any omission or commission, and arbitrarily labelling him as a fake document offender without specifying the alleged crimes, was unjust. There was no disturbance to Public Order and maintenance of Law and Order was not affected, therefore, detention order based on solitary crime and consequential Preventive Detention orders were unlawful.
Analysis, Law, and Decision
The Court noted that it granted liberty to the petitioner to approach Respondent 2 for receiving a copy of the Preventive Detention order within two weeks and the impugned order was suspended for two weeks. Respondent 2 was also directed to furnish a copy of the order to the petitioner in case he approached him to receive a copy of the order and not to arrest the petitioner for a period of one week subject to him giving undertaking that he would surrender himself immediately after expiry of one week. Thus, this Court granted protection to the petitioner for a period of two weeks. The petitioner filed the present writ petition on 11-12-2023 and this Court granted interim order. Therefore, the contention of the respondents that the petitioner filed the present writ petition without surrendering himself, was not acceptable.
The Court noted that the impugned Preventive Detention order was issued by Respondent 2 by relying on two cases, wherein allegations levelled against the petitioner were that he along with others committed forgery and swapping of SIM cards of unknown persons which were linked to their bank accounts resulting in fraudulent transactions thereby cheated the public of Rs 2 Crores. The Court also noted that in both the cases, the Magistrates granted bail to the petitioner on imposition of certain conditions and the Investigating Officers in the said crimes did not file any applications seeking cancellation of bail on the ground that the petitioner violated the conditions imposed in the orders while granting bail and that the petitioner had committed similar offences while he was on bail.
The Court opined that even relying on solitary crime, the Preventive Detention order could be passed but at the same time, the detaining authority had to consider the entire material placed before him, the allegations levelled against the petitioner, nature of the allegations and then conclude that due to the said acts of the petitioner, there was disturbance to the Public Order. The detaining authority had to record the subjective satisfaction in the order, and he must issue the Preventive Detention order, only to prevent the petitioner from committing similar offences. The Court stated that in the present case, there was no consideration of the said aspects, more particularly, the aspect that Respondent 2 on consideration of the entire material placed before him came to a subjective satisfaction that due to the acts committed by the petitioner there was disturbance to the Public Order.
The Court opined that there was no need for the detaining authority to invoke the provisions of the 1986 Act for passing order of detention against an individual as invoking of such law adversely affects the fundamental right of personal liberty which was guaranteed and protected by Article 21 of the Constitution. The Court stated that the present case was a clear example of non-application of mind to material circumstances having a bearing on the subjective satisfaction of the detaining authority.
The Court noted that in the detention order issued by Respondent 2 and the subsequent Government approval order, there was no mention of the detention’s duration. Thus, both the said orders passed by the relevant authorities were not in accordance with the provisions of law. The Court opined that it was only when an individual’s actions had the potential to affect Public Order that preventive detention might be warranted. The Court stated that it was expected that authorities would accurately distinguish between situations involving “Law and Order” and those involving “Public Order” before ordering detention, i.e., offences that target specific individuals fall under the category of “Law and Order” and it was only when the criminal activities of an individual adversely affect the public at large that their conduct was deemed to disturb “Public Order”.
The Court observed that though the petitioner was released on bail on 08-03-2021, the detention order was passed only on 02-06-2021. The Court opined that if the petitioner was absconding and was not available for the service of the Preventive Detention order, the authorities could have taken steps for cancellation of the bail and forfeiture of the surety amount deposited. But no such recourse was taken. If the respondents were sincere and anxious to serve the order of detention without any delay, it was expected of them to approach the Court concerned which granted bail for its cancellation, by pointing out that the petitioner had violated the conditions imposed and thereby enforce his appearance or production. Admittedly, no such steps were taken instead, it was explained that several attempts were made to serve the copy by visiting his house on many occasions. The Court said that without availing these remedies, Respondent could not mechanically pass orders of detention and Respondent 1 could not approve the same.
The Court opined that issuance of Preventive Detention order which drastically curtailed the petitioner’s right to liberty under Article 21 of Constitution was certainly neither the most suitable nor the least restrictive method of preventing the petitioner from engaging in any further alleged criminal activity. The Court stated that the cases registered against the petitioner were within the purview of the standard criminal justice system and if proved beyond reasonable doubt, could be appropriately punished by a competent court of law. Therefore, there was no necessity for the detaining authority to issue the impugned detention order as the regular laws were adequate to address the present matter and thus, resorting to preventive detention laws was unwarranted and was liable to be set aside.
The Court noted that the petitioner was already enlarged on bail, thus, allowed the present writ petition and set aside the impugned Preventive Detention Order and Proclamation Notice.
[Chandrakanth Siddharth Kamble v. State of Telangana, 2024 SCC OnLine TS 984, Order dated 07-06-2024]
Advocates who appeared in this case:
For the Petitioner: A. Venkatesh, Senior Counsel representing R. Anurag, Counsel
For the Respondents: Swaroop Oorella, Special Government Pleader
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