In Criminal Appeal No. 561 of 2022 -SC- Mere apprehension of adverse impact to public order is surmise of detaining authority; Not sufficient to pass preventive detention order: SC Justices D.Y. Chandrachud & Surya Kant[04-04-2022]

Read Judgment: MALLADA K. SRI RAM v. THE STATE OF TELANGANA & ORS

Mansimran Kaur 

New Delhi, April 9, 2022: Quashing a detention order on the ground that the same was passed with no application of mind, the Supreme Court has observed that a mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the “maintenance of public order”.

The Division Bench of Justice D.Y. Chandrachud and Justice Surya Kant was dealing with an appeal against the judgment of Division Bench of the High Court  of Telangana dismissing a habeas corpus petition. 

Brief facts of the case in a nutshell were that the brother of the appellant worked as an employee with a company, M/s Ixora Corporate Services in Hyderabad. A complaint was lodged at SHO,Banjara Hills on  behalf of the company dated October 13, 2020 ,wherein an employee  of the company named K Mahendar was alleged of conspiring with the detenu of fraudulent activities. They were alleged of collecting an amount of Rs 85 lakhs from 450 job aspirants and depositing the same in the salary account  of the Federal Bank, which was opened without any authorization. They misrepresented the facts to the job aspirants and under the garb of providing the aspirants with employment, conducted such fraudulent activities. 

Consequent to the allegations made, the First FIR dated October 15, 2020 was registered against the co-employee and the detenu  and charges were framed under Section 420, 408, 506, and 120B of the Indian Penal Code , 1860.  Another FIR was registered solely against the detenu at Chatrinaka Police Station under offences punishable under Sections 408,420 and 120-B of the Indian Penal Code. 

The detenu was arrested on January 4, 2020 after execution of the PT warrant. In the first case, the detenu was released on bail on 8 January 2021 subject to the condition that he would appear before the SHO, Police Station Banjara Hills on Mondays till the filing of the charge-sheet. In the second case, the detenu was released on bail subject to the condition that he shall appear before the SHO, Police Station Chatrinaka on Sundays for a period of three months.

An order of detention was passed against the detenu on May 19, 2021 under the provisions of Section 3(2) of the Telangana Prevention 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, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act 19864. The order of detention was assailed by way of a writ petition instituted under Article 226 of the Constitution, however the same was dismissed by the Division Bench of the Telangana High Court.

The counsel appearing for the appellant contended the detention was made without application of mind. In order to support his contention the counsel stated that the detenu had been granted bail almost five months back from the order of detention and the detenu met with all the conditions subject to his bail. It was further stated that the Court had erred in its reasoning in dismissing the writ as the order of detention was issued on May 19, 2021 and the charge sheet was submitted prior to the detention order. It was added that the order of detention was passed to prevent the breach of “public order” however the counsel pointed out that the affidavit was filed by the Commissioner of the High Court stating that there was merely an “apprehension” of breach of public order in future. Thus, the counsel stated that the criminal law shall come to rescue to set aside the detention order passed with “no application of mind”. 

The respondents on the contrary countered the contentions of the appellant by stating that the detenu is a “white collar offender” under Section 2 (x) of the Telangana Act, 1986 whose offence of cheating gullible job aspirants had  caused “large scale fear and panic among the gullible unemployed job aspirants/youth and thus he had  been acting in a manner prejudicial to the maintenance of public order apart from disturbing the peace, tranquility and social harmony in the society”. 

The Apex Court analyzed the facts of the case and observed that the detenu was granted the first bail on January 8, 2021 and the bail in second case was granted on January 11 , 2021 . The conditions of the bail were met by the appellant and there was no application for cancellation of bail moved by the investigating officers. The conditions were worked out in the month of April and an order of detention was passed on May 19, 2021 and was executed on June 26, 2021. Thus it was evident from the premises stated above that there was no violation of bail conditions and as such there was no apprehension of breach of “public order”  as stated in the detention order. 

The Top Court failed to comprehend the link between the past cases and the present detention order after seven months from the registration of  first FIR and nearly five months of securing bail. Thus it was observed that the detention order was passed on stale materials and vividly there was no application of mind in passing of the same. 

The Court then went ahead to assess the detention order on  the “breach of public order” and cited the case of Ram Manohar Lohia v. State of Bihar wherein the Constitutional Bench held that every disorder cannot lead to breach of “public order” until the community at large is affected. 

Another case referred to was of Banka Sneha Sheela v. State of Telangana wherein a two-judge Bench of this Court examined a similar factual situation of an alleged offence of cheating gullible persons as a ground for preventive detention under the Telangana Act of 1986. It was observed that  apprehension may be grounds for cancellation of bail, however the same may not be in the case for preventive detention order until and unless there is immediate and actual threat to the maintenance of public order. 

In yet another case of Sama Aruna v. State of Telangana, a two-judge Bench of this Court examined a case where stale materials were relied upon by the detaining authority under the Telangana Act of 1986.The order of detention pertained to incidents which had occurred occured around nine and fourteen years earlier in relation to offences involving criminal conspiracy, cheating, kidnapping and extortion. The Court in this case held that a preventive detention order should have proximate and direct link with the event, if the order is passed without assessing the same is tantamount to punishment without trial. 

Thus, the Bench held that mere apprehension of breach of law and order is not sufficient to meet the standard of adversely affecting the “ maintenance of public order” . In the present case, the fact that apprehension of disruption of public order was felt after seven months of registration of the case formed no rational basis of passing of the detention order.

It was also added that the personal liberty of the appellant cannot be sacrificed merely on the ground that a person is implicated in criminal proceedings. Additionally the Court observed that there was no violation of bail conditions by the appellant and moreover the respondents did not file a counter affidavit even when the opportunity of the same was granted by this Court and hence the Top Court relied on the affidavit on record which was filed by the High Court. 

The Bench further noted  that in the last five years, this Court has quashed over five detention orders under the Telangana Act of 1986 for inter alia incorrectly applying the standard for maintenance of public order and relying on stale materials while passing the orders of detention. At least ten detention orders under the Telangana Act of 1986 have been set aside by the High Court of Telangana in the last one year. So, the Court directed the respondents to take stock of challenges to detention orders pending before the Advisory Board, High Court and Supreme Court and evaluate the fairness of the detention order against lawful standards.

Thus in light of observations made and cases cited, the  Apex Court passed an order to allow the appeal and set aside the impugned order of the High Court dated January 25, 2022 and accordingly the order of detention passed on May 19, 2022  was  dismissed.