MALLADA K SRI RAM versus THE STATE OF TELANGANA & ORS.

MALLADA K SRI RAM

THE STATE OF TELANGANA & ORS.

(Criminal Appeal No 561 of 2022)

APRIL 04, 2022

[DR. DHANANJAYA Y CHANDRACHUD

AND SURYA KANT, JJ.]

Preventive Detention – Telangana Prevention of DangerousActivities of Bootleggers, Dacoits, Drug-Offenders,Goondas,Immoral Traffic Offenders, Land Grabbers, Spurious SeedOffenders, Insecticide Offenders, Fertiliser Offenders, FoodAdulteration Offenders, Fake Document Offenders, ScheduledCommodities Offenders, Forest Offenders, Gaming Offenders,Sexual Offenders, Explosive Substances Offenders, Arms Offenders,Cyber Crime Offenders and White Collar or Financial OffendersAct,1986 – s.3(2) and 2(x) – Order of detention u/s.3(2) – It wasalleged that detenu was ‘white-collar offender’ u/s.2(x) whocheated gullible job aspirants which was prejudicial to“maintenance of public order “– Detenu had moved bail applicationsin two cases in which he was in judicial custody and the Magistratehad granted him conditional bail, however, as recorded in thedetention order, it was apprehended that he may violate the bailconditions while committing similar offences – Detention orderchallenged – Held: Order of detention, on facts, was evidently basedon stale material and demonstrated non-application of mind on partof the detaining authority to the fact that the conditions imposed onthe detenu, while granting bail, were duly fulfilled and there wasno incidence of further violation – High Court failed to probe theexistence of live and proximate link between the past cases andthe need to detain the detenu – Mere apprehension of breach oflaw and order is not sufficient to meet the standard of adverselyaffecting the “maintenance of public order” – Apprehension of adisturbance to public order owing to crime reported over sevenmonths prior to the detention order had no basis in fact – Nature ofallegations against the detenu are grave – However, personal libertyof an accused cannot be sacrificed on the altar of preventivedetention merely because person is implicated in criminal

Aproceeding – Clear example of non-application of mind to materialcircumstances having bearing on the subjective satisfaction ofthe detaining authority – Detention order accordingly quashed andset aside – Public Order – Constitution of India, 1950 – Art.22.

Preventive Detention – Detention orders under Telangana ActBof 1986 – Callous exercise of exceptional powers by detainingauthorities and respondent-State – Incorrect application of standardfor maintenance of public order and reliance on stale materialswhile passing orders of detention – Respondents directed to takestock of challenges to detention orders pending before the AdvisoryBoard, High Court and Supreme Court and evaluate fairness of theCdetention orders against lawful standards – Telangana Preventionof Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders,Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious SeedOffenders, Insecticide Offenders, Fertiliser Offenders, FoodAdulteration Offenders, Fake Document Offenders, ScheduledDCommodities Offenders, Forest Offenders, Gaming Offenders,Sexual Offenders, Explosive Substances Offenders, Arms Offenders,Cyber Crime Offenders and White Collar or Financial OffendersAct,1986.

Law and Order – Distinction between disturbance to law andEorder and disturbance to public order – Held: Every disorder doesnot meet the threshold of disturbance to public order, unless itaffects the community at large – Public Order.

Constitution of India, 1950 – Art.226 – Writ jurisdiction under– Scope – Held: While the ordinary procedural hierarchy amongFcourts must be respected, the High Court’s writ jurisdiction u/Art.226 extends to protecting the personal liberty of persons whodemonstrated that the instrumentality of the State was beingweaponised for using the force of criminal law.

Constitution of India, 1950 – Art.22 – Object and purpose ofG– Held: Art.22 of the Constitution was specifically inserted andextensively debated in the Constituent Assembly to ensure that theexceptional powers of preventive detention do not devolve into adraconian and arbitrary exercise of state authority – PreventiveDetention.

An order of detention was passed against the detenu under Section3(2) of the Telangana Prevention of Dangerous Activities of Bootleggers,Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, LandGrabbers, Spurious Seed Offenders, Insecticide Offenders, FertiliserOffenders, Food Adulteration Offenders, Fake Document Offenders,Scheduled Commodities Offenders, Forest Offenders, GamingOffenders, Sexual Offenders, Explosive Substances Offenders, ArmsOffenders, Cyber Crime Offenders and White Collar or FinancialOffenders Act, 1986.

It was alleged that the detenu was ‘white-collar offender’ underSection 2(x) of the Telangana Act of 1986 whose offence of cheatinggullible job aspirants was causing “large scale fear and panic among thegullible unemployed job aspirants/youth and thus he has been acting in amanner prejudicial to the maintenance of public order apart from disturbingthe peace, tranquillity and social harmony in the society”. It was furtherrecorded in the order of detention that the detenu had moved bailapplications in two cases in which he was in judicial custody and that theMagistrate had granted him conditional bail, however, it was apprehendedthat he may violate the bail conditions while committing similar offences.The order of detention was passed nearly seven months after theregistration of the first FIR and about five months after the registrationof the second FIR. The order of detention was challenged before theHigh Court in petition under Article 226 of the Constitution. The HighCourt dismissed the petition. Hence the present appeal.

Allowing the appeal, the Court

HELD:1. The order of detention dated 19[th] May, 2021 waspassed nearly seven months after the registration of the first FIRand about five months after the registration of the second FIR.The order of detention is evidently based on stale material anddemonstrates non-application of mind on the part of the detainingauthority to the fact that the conditions which were imposed onthe detenu, while granting bail, were duly fulfilled and there wasno incidence of further violation. In the counter affidavit filedbefore the High Court, the detaining authority expressed onlyan apprehension that the acts on the basis of which the FIRswere registered were likely to be repeated in the future, therebygiving rise to an apprehension of breach of public order. TheHigh Court failed to probe the existence of live and proximate

Alink between the past cases and the need to detain the detenuafter seven months of registration of the first FIR and nearly fivemonths of securing bail. [Para 11][15-B-E]

2.1. There is distinction between disturbance to lawand order and disturbance to public order. Every disorder doesBnot meet the threshold of disturbance to public order, unless itaffects the community at large. [Para 12][15-E-F]

2.2. mere apprehension of breach of law and order isnot sufficient to meet the standard of adversely affecting the“maintenance of public order”. In this case, the apprehension ofCa disturbance to public order owing to crime that was reportedover seven months prior to the detention order has no basis infact. The apprehension of an adverse impact to public order is amere surmise of the detaining authority, especially when therehave been no reports of unrest since the detenu was released onbail on 8 January 2021 and detained with effect from 26 JuneD2021. The nature of the allegations against the detenu are grave.However, the personal liberty of an accused cannot be sacrificedon the altar of preventive detention merely because person isimplicated in criminal proceeding. The powers of preventivedetention are exceptional and even draconian. Tracing their originEto the colonial era, they have been continued with strictconstitutional safeguards against abuse. Article 22 of theConstitution was specifically inserted and extensively debatedin the Constituent Assembly to ensure that the exceptionalpowers of preventive detention do not devolve into draconianand arbitrary exercise of state authority. The case at hand is aFclear example of non-application of mind to material circumstanceshaving bearing on the subjective satisfaction of the detainingauthority. The two FIRs which were registered against the detenuare capable of being dealt by the ordinary course of criminal law.[Para 15][19-D-G]

3. The liberty of the citizen cannot be left to the lethargy ofand the delays on the part of the State. In the High Court, therespondents have argued that the detenu must move the AdvisoryBoard and the writ petition has been filed in premature fashion.However, while the ordinary procedural hierarchy among courts

must be respected, the High Court’s writ jurisdiction underArticle 226 extends to protecting the personal liberty of personswho have demonstrated that the instrumentality of the State isbeing weaponised for using the force of criminal law. [Para 16][20-B-C]

4. In the last five years, this Court has quashed over fivedetention orders under the Telangana Act of 1986 for inter aliaincorrectly applying the standard for maintenance of public orderand relying on stale materials while passing the orders ofdetention. At least ten detention orders under the Telangana Actof 1986 have been set aside by the High Court of Telangana inthe last one year itself. These numbers evince callous exerciseof the exceptional power of preventive detention by the detainingauthorities and the respondent-state. The respondents aredirected to take stock of challenges to detention orders pendingbefore the Advisory Board, High Court and Supreme Court andevaluate the fairness of the detention order against lawfulstandards. The order of detention passed against the detenu shallaccordingly stand quashed and set aside. [Paras 17, 18][21-A-D]

Ram Manohar Lohia v. State of Bihar AIR 1966 SC740 : [1966] 1 SCR 709 – followed.

Banka Sneha Sheela v. State of Telangana, (2021) 9SCC 415; Sama Aruna v. State of Telangana (2018) 12SCC 150 : [2017] 4 SCR 52; Arnab ManoranjanGoswami v. State of Maharashtra (2021) 2 SCC 427; VShantha v. State of Telangana (2017) 14 SCC 577 andKhaja Bilal Ahmed v. State of Telangana (2020) 13 SCC632 – relied on.

ACRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.561 of 2022.

From the Judgment and Order dated 25.01.2022 of the High Courtfor the State of Telangana at Hyderabad in Writ Petition No.17120 of2021.B

A. Sirajudeen Sr. Adv., A.V.S. Raju, Ch. Leela Sarveswar, P.Prabhakar, R. Ravi, Somanatha Padhan, Advs. for the Appellant.

P. Mohith Rao, S. Udaya Kumar Sagar, Advs. for the Respondents.

The Judgment of the Court was delivered byCDR. DHANANJAYA Y CHANDRACHUD, J.

1. Leave granted.

2. This appeal arises from judgment dated 25 January 2022 of aDivision Bench of the High Court for the State of Telangana dismissingDthe writ petition seeking writ of habeas corpus.

3. The brother[1] of the appellant worked as an employee with anentity by the name of M/s Ixora Corporate Services[2], Banjara Hills,Hyderabad. On 13 October 2020, complaint was lodged on behalf ofthe Company with the SHO, Banjara Hills, alleging that K Mahendar,another employee at the Company, had opened salary account withEthe Federal Bank without authorization and in conspiracy with the detenucollected an amount of Rs 85 lakhs from 450 job aspirants. It was allegedthat the co-accused who was in charge of the HR Department at theCompany had, in collusion with the detenu, hatched plan to collectmoney from individuals by misrepresenting that they would be given aFjob at the Company and collected money from aspirants for opening abank account and supplying uniforms.

4. The first FIR, FIR No 675 of 2020, was registered on 15October 2020 at Police Station Banjara Hills against K Mahendar (A-1)and the detenu (A-2) for offences punishable under Sections 408, 420,G506 and 120B of the Indian Penal Code 1860[3]. On 17 December 2020,another FIR, FIR No 343 of 2020, was registered at Police StationChatrinaka against the detenu for offences punishable under Sections

1 “detenu”2 “Company”H3 “IPC”

408, 420 and 120B IPC based on similar allegations at the behest ofanother informant. The detenu was arrested, in the first case, on 17December 2020 and, in the second case, on the execution of PT warranton 4 January 2021. In the first case, the detenu was released on bail on8 January 2021 in terms of an order dated 31 December 2020, subject tothe condition that he shall appear before the SHO, Police Station BanjaraHills on Mondays between 10.30 am and 5 pm till the filing of the charge-sheet. In the second case, the detenu was released on bail by an orderdated 11 January 2021, subject to the condition that he shall appear beforethe SHO, Police Station Chatrinaka on Sundays between 2 pm and 5 pmfor period of three months. The Court has been apprised of the factthat the charge-sheet has been submitted in the first case.

5. An order of detention was passed against the detenu on 19May 2021 under the provisions of Section 3(2) of the TelanganaPrevention 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, ScheduledCommodities Offenders, Forest Offenders, Gaming Offenders, SexualOffenders, Explosive Substances Offenders, Arms Offenders, CyberCrime Offenders and White Collar or Financial Offenders Act 1986[4].The order of detention was challenged before the High Court in petitionunder Article 226 of the Constitution. The Division Bench of the HighCourt dismissed the petition by its impugned judgment and order dated25 January 2022.6. Mr Sirajudeen, senior counsel appearing on behalf of theappellant, submits that there is ex facie, non-application of mind by thedetaining authority while passing the order of detention. Senior counselsubmitted that this would be evident from the fact that the detenu hadbeen granted bail almost five months prior to the order of detention. Thegrant of bail was subject to the condition that the detenu would report tothe SHO of the police station concerned, in the first case, until the charge-sheet was filed and, in the second case, for period of three months onstipulated days of the week. In the first case, the charge-sheet wassubmitted prior to the date of the order of detention on 19 May 2021. Onthe above premises, it has been submitted that the very basis of theorder of detention stands vitiated since it will be apparent from the condition

Awhich was imposed by the Court while granting bail that the detenu wasrequired to attend the police station concerned throughout the stipulatedperiod and even that period came to an end by the time the order ofdetention was passed. Moreover, whereas the order of detention hasproceeded on the basis that the acts of the detenu had created situationleading to breach of public order in the case, on the other hand, it isBevident from the counter affidavit which has been filed by theCommissioner before the High Court that there was only an apprehensionthat there would be likelihood of breach of public order in the future.It was further submitted that it is evident from the recording of facts thatthe order of detention was passed nearly seven and five months afterCboth the criminal cases were instituted. The detention was, it is urged,based on stale material. It has been argued that the ordinary course ofcriminal law would be sufficient to deal with the alleged violation and onthe above facts, the detention of the detenu is based on no cogent materialwhatsoever.

D7. Mr Mohith Rao, counsel appearing on behalf of the respondents,has submitted that the nature of the acts which are attributed to thedetenu are part of series of organized activities involving white collarcrime where job aspirants were allured into parting with their money onthe promise that they would get employment in the future. Hence, it hasbeen urged that the High Court has rightly held that the order of detentionEshould not be interfered with.8. At the outset, it is necessary to set out the relevant provisionsof the Telangana Act of 1986:

“2. Definitions.—In this Act, unless the context otherwiseFrequires,—

(a) “acting in any manner prejudicial to the maintenance ofpublic order” means when bootlegger, dacoit, drug-offender,a goonda, an immoral traffic offender, Land-Grabber, SpuriousSeed Offender, an Insecticide Offender, Fertiliser Offender, aGFood Adulteration Offender, Fake Document Offender, aScheduled Commodities Offender, Forest Offender, GamingOffender, Sexual Offender, an Explosive Substances Offender,an Arms Offender, Cyber Crime Offender and White Collaror Financial Offender is engaged or is making preparations forengaging, in any of his activities as such, which affect adversely,Hor are likely to affect adversely, the maintenance of public order:

Explanation.—For the purpose of this clause public order shall bedeemed to have been affected adversely or shall be deemed likelyto be affected adversely inter alia, if any of the activities of any ofthe persons referred to in this clause directly, or indirectly, is causingor calculated to cause any harm, danger or alarm or feeling ofinsecurity among the general public or any section thereof or agrave widespread danger to life or public health;

(x) “White collar offender” or “Financial Offender” means aperson who commits or abets the commission of offencespunishable under the Telangana Protection of Depositors ofFinancial Establishment Act, 1999 (Act 17 of 1999) or underSections 406 to 409 or 417 to 420 or under Chapter XVIII of theIndian Penal Code, 1860.

3. Power to make orders detaining certain persons.—(1)The Government may, if satisfied with respect to any bootlegger,dacoit, drug-offender, goonda, immoral traffic offender, Land-Grabber, Spurious Seed Offender, Insecticide Offender, FertilizerOffender, Food Adulteration Offender, Fake Document Offender,Scheduled Commodities Offender, Forest Offender, GamingOffender, Sexual Offender, Explosive Substances Offender, ArmsOffender, Cyber Crime Offender and White Collar or FinancialOffender that with view to preventing him from acting in anymanner prejudicial to the maintenance of public order, it isnecessary so to do, make an order directing that such person bedetained.

(2) If, having regard to the circumstances prevailing or likely toprevail in any area within the local limits of the jurisdiction of aDistrict Magistrate or Commissioner of Police, the Governmentare satisfied that it is necessary so to do, they may, by order inwriting, direct that during such period as may be specified in theorder, such District Magistrate or Commissioner of Police mayalso, if satisfied as provided in sub-section (1), exercise the powersconferred by the said sub-section:

Provided that the period specified in the order made by theGovernment under this sub-section shall not in the first instance,exceed three months, but the Government may, if satisfied as

Aaforesaid that it is necessary so to do, amend such order to extendsuch period from time to time by any period not exceeding threemonths at any one time.

13. Maximum period of detention.—The maximum period forBwhich any person may be detained, in pursuance of any detentionorder made under this Act which has been confirmed under Section12, shall be twelve months from the date of detention.”

9. The order of detention dated 19 May 2021 notes that that thedetenu is ‘white-collar offender’ under Section 2(x) of the TelanganaCAct of 1986 whose offence of cheating gullible job aspirants has beencausing “large scale fear and panic among the gullible unemployed jobaspirants/youth and thus he has been acting in manner prejudicial tothe maintenance of public order apart from disturbing the peace,tranquillity and social harmony in the society”. These alleged offencesDwere noted as the grounds for his detention, in addition to the apprehensionthat “he may violate the bail conditions and there is an imminent possibilityof his committing similar offences, which would be detrimental to publicorder, unless he is prevented from doing so by an appropriate order ofdetention”.

E10. The detenu was released on bail on 8 January 2021 by theAdditional Chief Metropolitan Magistrate, Hyderabad subject to thecondition that he would have to report to the SHO of the Police Stationconcerned on stipulated day every week till the charge sheet wasfiled. The order granting bail to the detenu in the second case providedthat the detenu was subject to the condition of appearing once everyFweek on Sunday before the Police Station concerned for period ofthree months with effect from 11 January 2021. As consequence, theconditions attached to the orders granting bail stood worked out in themonth of April 2021. The order of detention dated 19 May 2021 hasfailed to advert to these material aspects and suffers from non-Gapplication of mind. The basis on which the preventive detention of thedetenu has been invoked is that the detenu has cheated aspirants forjobs on the basis of fake documents and that, as consequence, 450aspirants were duped, from whom an amount of Rs 85 lakhs had beencollected. The order of detention records that the detenu had moved bailapplications in two cases in which he was in judicial custody and that theHMagistrate had granted him conditional bail. It was apprehended that hemay violate the bail conditions while committing similar offences. It ispertinent to note that no application for cancellation of bail was movedby the investigating authorities for violation of the bail conditions.

11. At this stage, it would also be material to note that the firstcase was registered on 15 October 2020, while the second case wasregistered on 17 December 2020. Bail was granted on 8 January 2021.The order of detention was passed on 19 May 2021 and was executedon 26 June 2021. The order of detention was passed nearly seven monthsafter the registration of the first FIR and about five months after theregistration of the second FIR. The order of detention is evidently basedon stale material and demonstrates non-application of mind on the partof the detaining authority to the fact that the conditions which wereimposed on the detenu, while granting bail, were duly fulfilled and therewas no incidence of further violation. In the counter affidavit whichwas filed before the High Court, the detaining authority expressed onlyan apprehension that the acts on the basis of which the FIRs wereregistered were likely to be repeated in the future, thereby giving rise toan apprehension of breach of public order. The High Court has failedto probe the existence of live and proximate link between the pastcases and the need to detain the detenu after seven months of registrationof the first FIR and nearly five months of securing bail.

12. The distinction between disturbance to law and order and adisturbance to public order has been clearly settled by ConstitutionBench in Ram Manohar Lohia v. State of Bihar[5]. The Court has heldthat every disorder does not meet the threshold of disturbance to publicorder, unless it affects the community at large. The Constitution Benchheld:

“51. We have here case of detention under Rule 30 of theDefence of India Rules which permits apprehension and detentionof person likely to act in manner prejudicial to the maintenanceof public order. It follows that if such person is not detainedpublic disorder is the apprehended result. Disorder is no doubtprevented by the maintenance of law and order also but disorderis broad spectrum which includes at one end small disturbancesand at the other the most serious and cataclysmic happenings.

ADoes the expression “public order” take in every kind ofdisorders or only some of them? The answer to this servesto distinguish “public order” from “law and order” becausethe latter undoubtedly takes in all of them. Public order ifdisturbed, must lead to public disorder. Every breach ofthe peace does not lead to public disorder. When twoBdrunkards quarrel and fight there is disorder but not publicdisorder. They can be dealt with under the powers tomaintain law and order but cannot be detained on the groundthat they were disturbing public order. Suppose that thetwo fighters were of rival communities and one of them triedCto raise communal passions. The problem is still one of lawand order but it raises the apprehension of public disorder.Other examples can be imagined. The contravention of lawalways affects order but before if can be said to affect publicorder, it must affect the community or the public at large. Amere disturbance of law and order leading to disorder isDthus not necessarily sufficient for action under the Defenceof India Act but disturbances which subvert the public order are.A District Magistrate is entitled to take action under Rule 30(1)(b)to prevent subversion of public order but not in aid of maintenanceof law and order under ordinary circumstances.

52. It will thus appear that just as “public order” in therulings of this Court (earlier cited) was said to comprehenddisorders of less gravity than those affecting “security ofState”, “law and order” also comprehends disorders of lessgravity than those affecting “public order”. One has toFimagine three concentric circles. Law and order representsthe largest circle within which is the next circle representingpublic order and the smallest circle represents security ofState. It is then easy to see that an act may affect law andorder but not public order just as an act may affect publicorder but not security of the State. By using the expressionG“maintenance of law and order” the District Magistrate waswidening his own field of action and was adding clause to theDefence of India Rules.”

(emphasis supplied)

13. In Banka Sneha Sheela v. State of Telangana[6], two-judge Bench of this Court examined similar factual situation of analleged offence of cheating gullible persons as ground for preventivedetention under the Telangana Act of 1986. The Court held that whilesuch an apprehension may be ground for considering the cancellationof bail to an accused, it cannot meet the standards prescribed forpreventive detention unless there is demonstrable threat to themaintenance of public order. The Court held:

“9. …learned counsel appearing on behalf of the petitioner hasraised three points before us. First and foremost, he said there isno proximate or live connection between the acts complained ofand the date of the detention order, as the last act that wascomplained of, which is discernible from the first 3 FIRs (FIRsdated 12-12-2019, 12-12-2019 and 14-12-2019), was in December2019 whereas the detention order was passed 9 months later on28-9-2020. He then argued, without conceding, that at best only a“law and order” problem if at all would arise on the facts of thesecases and not “public order” problem, and referred to certainjudgments of this Court to buttress the same. He also argued thatthe detention order was totally perverse in that it was passed onlybecause anticipatory bail/bail applications were granted. Thecorrect course of action would have been for the State to move tocancel the bail that has been granted if any further untowardincident were to take place.

12. While it cannot seriously be disputed that the detenu may be a“white collar offender” as defined under Section 2(x) of theTelangana Prevention of Dangerous Activities Act, yet preventivedetention order can only be passed if his activities adversely affector are likely to adversely affect the maintenance of public order.“Public order” is defined in the Explanation to Section 2(a) of theTelangana Prevention of Dangerous Activities Act to be harm,danger or alarm or feeling of insecurity among the general publicor any section thereof or grave widespread danger to life orpublic health.

15. There can be no doubt that what is alleged in the five FIRspertain to the realm of “law and order” in that various acts of

Acheating are ascribed to the detenu which are punishable underthe three sections of the Penal Code set out in the five FIRs. Aclose reading of the detention order would make it clear that thereason for the said order is not any apprehension of widespreadpublic harm, danger or alarm but is only because the detenu wassuccessful in obtaining anticipatory bail/bail from the courts inBeach of the five FIRs. If person is granted anticipatory bail/bailwrongly, there are well-known remedies in the ordinary law totake care of the situation. The State can always appeal againstthe bail order granted and/or apply for cancellation of bail. Themere successful obtaining of anticipatory bail/bail orders beingCthe real ground for detaining the detenu, there can be no doubtthat the harm, danger or alarm or feeling of insecurity among thegeneral public spoken of in Section 2(a) of the TelanganaPrevention of Dangerous Activities Act is make-believe and totallyabsent in the facts of the present case.D32. On the facts of this case, as has been pointed out by us, it isclear that at the highest, possible apprehension of breach of lawand order can be said to be made out if it is apprehended that thedetenu, if set free, will continue to cheat gullible persons. Thismay be good ground to appeal against the bail orders grantedand/or to cancel bail but certainly cannot provide the springboardEto move under preventive detention statute. We, therefore, quashthe detention order on this ground….”

14. In Sama Aruna v. State of Telangana[7], two-judge Benchof this Court examined case where stale materials were relied upon bythe detaining authority under the Telangana Act of 1986. The order ofFdetention pertained to incidents which had occurred between nine andfourteen years earlier in relation to offences involving criminalconspiracy, cheating, kidnapping and extortion. This Court held that apreventive detention order that is passed without examining live andproximate link between the event and the detention is tantamount toGpunishment without trial. The Court held:

“17. We are, therefore, satisfied that the aforesaid detention orderwas passed on grounds which are stale and which could not havebeen considered as relevant for arriving at the subjectivesatisfaction that the detenu must be detained. The detention order

H7 (2018) 12 SCC 150

must be based on reasonable prognosis of the future behaviourof person based on his past conduct in light of the surroundingcircumstances. The live and proximate link that must exist betweenthe past conduct of person and the imperative need to detainhim must be taken to have been snapped in this case. detentionorder which is founded on stale incidents, must be regarded as anorder of punishment for crime, passed without trial, thoughpurporting to be an order of preventive detention. The essentialconcept of preventive detention is that the detention of person isnot to punish him for something he has done but to prevent himfrom doing it. See G. Reddeiah v. State of A.P.[G.Reddeiah v. State of A.P., (2012) 2 SCC 389 : (2012) 1 SCC(Cri) 881] and P.U. Iqbalv. Union of India [P.U. Iqbal v. Unionof India, (1992) 1 SCC 434 : 1992 SCC (Cri) 184].”

15. mere apprehension of breach of law and order is notsufficient to meet the standard of adversely affecting the “maintenanceof public order”. In this case, the apprehension of disturbance to publicorder owing to crime that was reported over seven months prior to thedetention order has no basis in fact. The apprehension of an adverseimpact to public order is mere surmise of the detaining authority,especially when there have been no reports of unrest since the detenuwas released on bail on 8 January 2021 and detained with effect from26 June 2021. The nature of the allegations against the detenu are grave.However, the personal liberty of an accused cannot be sacrificed on thealtar of preventive detention merely because person is implicated in acriminal proceeding. The powers of preventive detention are exceptionaland even draconian. Tracing their origin to the colonial era, they havebeen continued with strict constitutional safeguards against abuse. Article22 of the Constitution was specifically inserted and extensively debatedin the Constituent Assembly to ensure that the exceptional powers ofpreventive detention do not devolve into draconian and arbitraryexercise of state authority. The case at hand is clear example of non-application of mind to material circumstances having bearing on thesubjective satisfaction of the detaining authority. The two FIRs whichwere registered against the detenu are capable of being dealt by theordinary course of criminal law.

16. We also note that after notice was issued by this Court, therespondents have been served. No counter affidavit has been filed. We

Ahave declined to allow any further adjournment for filing counter affidavitsince detailed and comprehensive counter affidavit which was filedbefore the High Court is already on the record and the presentproceedings have been argued on the basis of the material as it stoodbefore the High Court. The liberty of the citizen cannot be left to theBlethargy of and the delays on the part of the state. Further, in the counteraffidavit filed before the High Court, the respondents have argued thatthe detenu must move the Advisory Board and the writ petition has beenfiled in premature fashion. However, in Arnab Manoranjan Goswamiv. State of Maharashtra[8], two-judge Bench of this Court has heldthat while the ordinary procedural hierarchy among courts must beCrespected, the High Court’s writ jurisdiction under Article 226 extendsto protecting the personal liberty of persons who have demonstratedthat the instrumentality of the State is being weaponised for using theforce of criminal law:

“68. Mr Kapil Sibal, Mr Amit Desai and Mr Chander Uday SinghDare undoubtedly right in submitting that the procedural hierarchyof courts in matters concerning the grant of bail needs to berespected. However, there was failure of the High Court todischarge its adjudicatory function at two levels—first in decliningto evaluate prima facie at the interim stage in petition for quashingEthe FIR as to whether an arguable case has been made out, andsecondly, in declining interim bail, as consequence of its failureto render prima facie opinion on the first. The High Court didhave the power to protect the citizen by an interim order in apetition invoking Article 226. Where the High Court has failed toFdo so, this Court would be abdicating its role and functions as aconstitutional court if it refuses to interfere, despite the parametersfor such interference being met. The doors of this Court cannotbe closed to citizen who is able to establish prima facie that theinstrumentality of the State is being weaponised for using the forceof criminal law. Our courts must ensure that they continue toGremain the first line of defence against the deprivation of the libertyof citizens. Deprivation of liberty even for single day is one daytoo many. We must always be mindful of the deeper systemicimplications of our decisions.”

H8 (2021) 2 SCC 427

17. It is also relevant to note, that in the last five years, this Courthas quashed over five detention orders under the Telangana Act of 1986for inter alia incorrectly applying the standard for maintenance of publicorder[9] and relying on stale materials while passing the orders ofdetention[10]. At least ten detention orders under the Telangana Act of1986 have been set aside by the High Court of Telangana in the last oneyear itself. These numbers evince callous exercise of the exceptionalpower of preventive detention by the detaining authorities and therespondent-state. We direct the respondents to take stock of challengesto detention orders pending before the Advisory Board, High Court andSupreme Court and evaluate the fairness of the detention order againstlawful standards.

18. We accordingly allow the appeal and set aside the impugnedjudgment of the High Court dated 25 January 2022. The order of detentionwhich has been passed against the detenu on 19 May 2021 shallaccordingly stand quashed and set aside.

19. Pending application(s), if any, stands disposed of.

Bibhuti Bhushan Bose

Appeal allowed.

9 V Shantha v. State of Telangana, (2017) 14 SCC 577; Banka Sneha Sheela v.State of Telangana, (2021) 9 SCC 415;

10 Sama Aruna v. State of Telangana, (2018) 12 SCC 150; Khaja Bilal Ahmed v.State of Telangana, (2020) 13 SCC 632