The Apex Court deals with an appeal in pursuant to a judgement of Division Bench of the High Court of Telangana dismissing the writ petition praying for the writ of habeas corpus. A single- bench of Justice D Y Chandrachud allowed the appeal by setting aside the impugned order on the ground that the detention order was passed ex- facie with no application of mind.
Brief facts of the case in a nutshell were that the brother of the appellant worked as an employee with an entity by the name of M/s Ixora Corporate Services, Banjara Hills, 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, the account was also improper and 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. In consequence to the allegations made, the First FIR was registered dated October 15, 2020 against the co-employee and 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 Section 408,420 and 120-B of the Indian Penal Code. The detenu was arrested on December 17, 2020 on first FIR and on January 4, 2020 after execution of the PT warrant. In the first case, the detenu was released on bail on 8 January 2021 in terms of an order dated 31 December 2020, subject to the condition that he shall appear before the SHO, Police Station Banjara Hills 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 order dated 11 January 2021, subject to the condition that he shall appear before the SHO, Police Station Chatrinaka on Sundays between 2 pm and 5 pm 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 writ petition instituted under Article 226 of the Constitution, however the same was dismissed by the Division Bench of the Telangana High Court through its impugned judgement and order dated January 25, 2022.
The counsel appearing for the appellant contended the detention on account of there being no application of mind ex-facie. In order to support his contention the counsel stated that the detenu has been granted bail almost five months back from the order of detention and the detenu has met with all the conditions subject to his bail. It was further stated that the Court has 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. At the outset, the counsel stated that the detention order is suffocated, as the bail granted to the detenu was subject to the condition of the detenue to attend the police station for the stipulated time period, however that period exhausted with the passing of the detention order. It was also contended that the order of detention was passed merely seven to five months after the institution of both the criminal cases against the detenu. Lastly it was added that the order of detention was passed to prevent the breach of “public order” however the counsel pointed out the affidavit 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 High Court has not erred in dismissing the the writ petition has the detenu has been alleged of white collar crime and brought to the attention of the Court then context of the detention order wherein it is explicitly mentioned 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, tranquillity and social harmony in the society”. Also there were apprehensions that he might violate the bail conditions and there were strong chances of him repeating the same offence and thus in order to prevent the same the order of detention was issued.
The Apex Court analysed the facts of the case and observed that the detenu was granted the first bail on January 8, 2021 and the second 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 is 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 is 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.
“Does the expression “public order” take in every kind of disorder or only some of them? The answer to this serves to distinguish “public order” from “law and order” because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder.One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of the State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State”
In Banka Sneha Sheela v. State of Telangana , 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 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 between nine and fourteen years earlier in relation to offences involving a 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 it was 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 apprehension of disruption of public order was felt after seven months of registration of the case forms no rational basis of passing of 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. It was 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 itself. 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 stands dismissed.
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