Supreme Court on the Law of Preventive Detention

INTRODUCTION

 

On today’s show, we will discuss the case of Bankha Sneha Sheela v. State of Telangana & Others, 2021 SCC OnLine SC 350, wherein the Hon’ble Supreme Court discussed the circumstances under which a person could be preventively detained by the State.

 

FACTS

 

The brief facts of the case are that it was alleged that the Appellant in the present case along with his associates ran a Ponzi Investment Scheme to dupe the general public and embezzled more than ₹50 lakhs of funds. In the name of providing windfall gains to their investments, the Appellant lured his victims and after receiving the money, the Appellant along with his associates started avoiding them. Thus, various FIRs under Sections 406 and 420 of the Indian Penal Code were lodged against the Appellant. The Appellant moved the court for grant of bail that was successfully granted to him.

 

Thereafter, the Appellant was detained by the Police under a law that has a very big name and could be perused in the show notes. For the sake of our convenience, we shall refer to the same as the Telengana Prevention of Dangerous Activities Act of 1986. One of the grounds for detaining the Appellant was that since he was granted bail by the Court, his free movement is not safe for the society as there is an imminent possibility of him indulging in illegal financial activities again.  

 

Such order of detention was challenged before the High Court in a Writ Petition that was dismissed. Hence, the assailed his detention order and the order by the High Court before the Hon’ble Supreme Court. In order gather a better understanding of the matter, let us peruse the relevant legal provisions of the Telengana Prevention of Dangerous Activities Act of 1986 and the Constitution of India.

 

IMPORTANT PROVISIONS OF LAW

 

Section 2 (a) of Telengana Prevention of Dangerous Activities Act defines 'acting in any manner prejudicial to maintenance of public order' as inter alia a White Collar or Financial Offender engaging in any activity that may adversely affect or cause any harm or danger or feeling of insecurity among the general public or grave danger to life or public health.

 

Section 3 of Telengana Prevention of Dangerous Activities Act provides powers to the government to make orders detaining persons who are acting in any manner prejudicial to maintenance of public order, if necessary.

 

Section 13 of Telengana Prevention of Dangerous Activities Act provides that the maximum period of detention to be ordered shall be twelve months from the date of detention.

 

Article 21 of the Constitution of India, as all of us know, talks about Right to Life.

 

Article 22 talks about protection against arrest and detention and stipulates that a person detained has the right to get informed about the grounds of detention, to seek legal counsel of his choice and to be produced before a Magistrate within 24 hours. However, Article 22 (3) provides that these provisions will not be applicable to a person detained under any Prevention Detention Law. Article 22 (4) provides that a person will not be preventively detained for more than 3 months at a stretch and must be given an opportunity of being heard.

 

Now, let us understand the pertinent observations by the Supreme Court.

 

OBSERVATIONS BY THE COURT

 

Firstly, the Court started by explaining the significance of terms like ‘law and order’, ‘public order’, ‘security of state’ etc. According to the Court, “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.”

 

Secondly, the Court observed that “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” cannot be justified.

 

Thirdly, the Court also noted that harm, danger or feeling of insecurity among the general public under Section 2 (a) of the Telengana Prevention of Dangerous Activities Act seems completely absent in this case.

 

Fourthly, the Court cited the case of Union of India v. Yumnam Anand, (2007) 10 SCC 190, wherein it was held that “in case of preventive detention no offence is proved, nor any charge is formulated, and the justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. But at the same time, a person's greatest of human freedoms i.e., personal liberty is deprived, and, therefore, the laws of preventive detention are strictly construed, and a meticulous compliance with the procedural safeguard, however technical, is mandatory.”

 

Fifthly, the Court also cited the case of Haradhan Saha v. the State of West Bengal, (1975) 3 SCC 198, wherein it was held that if a person is liable to be tried for a criminal offence, but the ordinary criminal law is not able to deal with the situation, “then, and only then, can the preventive detention law be taken recourse to.” The Hon’ble Supreme Court, in the present case, further noted that “personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law.”

 

And lastly, the Court observed 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.”

 

HELD BY THE COURT

 

Therefore, upon cumulative consideration, the Hon’ble Supreme Court quashed the Detention Order, set aside the impugned Judgment by the High Court and freed the Appellant/Detenu.

 

That was all about the case. So, what are my concluding remarks?

 

CONCLUSION

 

It is to be noticed that the cases of preventive detention are on a rise all over India. The State is becoming ruthless in detaining or arresting persons on mere apprehensions that most of the times do not have any legal sanctity. In order to justify their apprehensions, the State Authorities are increasingly resorting to Preventive Detention Laws. But while doing so, sometimes the State Authorities forget that just because there exists a Preventive Detention Law, the same does not mean that it can be exercised at the whims and fancies of the State. There is a reason for existence of Article 21 and 22 in our Constitution of India. The founders of this august country were aware of the fact that a time may come when the State Authorities may misuse law to illegally affect the life and the liberty of the Citizens of India, and it is in this light that the Hon’ble Supreme Court of India very rightly interpreted that it is the responsibility of the Detaining Authority and not the Accused/Detenu to prove that circumstances exist where such detention is absolute necessary.