Is Preventive Detention necessary or exceptional?

Preventive   detention   is   only   an exception  to  Article  21  of  the  Constitution and  cannot  ordinarily  nullify  the  full  force  of  the main  rule, the  right  to  liberty  in  Article  21.

 The Hon'ble Supreme Court of India freed a detenu by quashing detention under passed under Section 3(2) of Telangana Prevention of Dangerous Activities. The Court has held in the case that 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 ground to appeal against the bail orders granted and/or to cancel bail but cannot provide the springboard to move under a preventive detention statute. 

"The 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"- Supreme Court said.

   The Hon'ble Court referred the case of Yumman Ongbi Lembi Leima vs State of Manipur (2012) wherein  the meaning of  "Personal Liberty"  was emphasized and held that although the power is vested with the detaining authorities, unless the same are involved and implemented in a justifiable manner, such action of the detaining authority cannot be sustained, in as much a a detention order is an exception to the provisions of Article 21 and 22(2) of the Constitution. The State has been granted the power to curb such rights under criminal laws as also under the laws of preventive detention, which, therefore, required  to be exercised with due  caution as well as upon proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State  and its citizens, or seek to disturb public law and order, warranting the issuance of such an order. An individual incident of an offence under the Indian Penal code, however heinous, is insufficient to make out a case for issuance of an order of preventive detention. The Court  specifically  adverted  to  when  a  preventive  detention order  would  be  bad,  as  recourse  to  the  ordinary  law  would  be  sufficient in  the  facts  of  a  given  case,  with  particular  regard  being  had  to  bail having  been  granted. 

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 - Supreme Court said

  Thus, JusticeR.  F.  Nariman and Justice Hrishikesh  Roy set aside the impugned  judgment  and  the  Detenu was ordered  to  be  freed forthwith. 

Case Fact

Five FIRs by different complainants,  under Sections 420, 406 and 506  of the IPC, were  lodged against Husband of the Petitioner. In the FIRs, husband was alleged to have committed financial fraud to the tune of Rs 50,00,000/- ( 50 Lakhs) in the guise of providing good profit through investment in share market. The husband was granted bail on all the FIRs. But executive authority  appointed under Telangana Prevention of Dangerous Activities Act passed a Detention Order stating that husband of the petitioner has committed  White Collor Crime   by cheating so many people by collecting money from  them. Further he has adversely affected the maintenance of public order and created feeing of insecurity among young people, thus disturbing peace and tranquility in  the area. So recourse to normal law may not be effective deterrent in preventing you from indulging in further activities  prejudicial to the maintenance of public order in the area unless detained by invoking the provisions under the Telangana Prevention of Dangerous Activities Act. The detenu challenged the Detention Order in the High Court  for the State of Telangana at Hyderabad by a Writ Petition, but was dismissed and confirmed the Detention Order on the ground –  “the illegal activities of 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” . Thus the Appeal in the Supreme Court was filed against the impugned judgment.

Case title

Banka Sneha Sheela vs State of Telangana &  Ors. 

Date: 2.08.2021