The Supreme Court recently comprising of a bench of Justices C. T. Ravikumar and Sudhanshu Dhulia ruled that the provision of preventive detention cannot be invoked when there are concerns about public order and said a person can only be arrested. detention in cases where public order is directly affected (Shaik Nazneen v. The State of Telangana & Ors.)
Facts of the case
The commissioner of police for the Rachakonda Commissionerate issued a preventive detention order against the petitioner's husband on the grounds that the detainee had committed crimes involving the theft of gold chains, the majority of the victims of which were women.
He has been carrying out this activity in the states of Telangana and Andhra Pradesh since the year 2020. Up to 36 gold chain snatching offences were charged against him.
The detenu and three others had previously organised a gang to perform these crimes in order to get quick cash. They allegedly arrived in Hyderabad by automobile and sought refuge at a resort.
Their strategy involved conducting reconnaissance of various residential areas before lifting two-wheelers and motorbikes that were later employed in the chain-snatching offences.
The high court also noted that the offenses in these four cases were said to have been committed in the two months between May 6 and July 26 last year and that the two arrested were released on bail. by judges at these businesses.
The petitioners challenged the Telangana High Court’s order on March 25 of this year rejecting their call against pre-trial detention.
In its order, the high court noted that one of the grounds given by the authority to justify invoking the provisions of the Detention Act was that detainees had been released on bail for both four cases and potentially similar offenses.
Moreover, the F.I.Rs against detenu were primarily for an offence of 'robbery' under section 392 of the IPC; that the detention order also says that the crimes were committed in broad daylight and have thus resulted in creation of fear and panic in the minds of the general public, especially women and hence, the government had to interfere in order to "maintain public order
Court's observations and Judgment
The order, the top court noted that one of reasons assigned by the authority justifying the invocation of the provisions of detention law was that the detenus were granted bail in all the four cases and were likely to indulge in similar crime.
The bench noted, "The said four cases were allegedly committed by the detenu within a span of two months between 06.05.2021 to 26.07.2021 and were committed within the jurisdiction of one police station i.e., Medipalli police station. In all these cases, the detenu had moved bail applications before the concerned Metropolitan Magistrate and was granted bail under Section 167 (2) Cr.P.C, which is commonly known as 'default bail' and the detenu was released on 16.10.2021. The detention order was later passed on 28.10.2021, which was subsequently confirmed by the Advisory Council on 13.01.2022, i.e., within the stipulated time. The detenu is under detention since 28.10.2021. The Preventive Detention Law, under which the powers have been exercised is a long winded statute called the 'Telangana Prevention of Dangerous Activities of Boot-Leggers, 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, 1986".
It observed that the facts and circumstances of the case, as alleged in the detention order, does reflect a law and order situation which can be dealt with under the ordinary law of land and there was absolutely no occasion for invoking the extraordinary powers under the law of preventive detention.
The apex court said invocation of the preventive detention law in this case against the two persons was “not justified”.
It said the distinction between law and order situation and a public order situation has been dealt with by the apex court in a catena of decisions.
"The distinction between law and order situation and a public order situation has been dealt with by the Supreme Court in a catena of decisions...In any case, the State is not without a remedy, as in case the detenu is much a menace to the society as is being alleged, then the prosecution should seek for the cancellation of his bail and/or move an appeal to the Higher Court. But definitely seeking shelter under the preventive detention law is not the proper remedy under the facts and circumstances of the case".
The Court referred to the precedent in Ram Manohar Lohia Vs. State of Bihar on the point of distinction between "public order" and "law and order"
The bench noted, "In fact, in a recent decision of this court, the court had to make an observation regarding the routine and unjustified use of the preventive detention law in the state of Telangana.”
It said the state is not without a remedy, as in case the detenu is so much a menace to the society as is being alleged, then the prosecution should seek cancellation of bail or move an appeal to the higher court.
The bench said, "But definitely seeking shelter under the preventive detention law is not the proper remedy under the facts and circumstances of the case."
The bench noted that the detention order said that crimes were committed in broad daylight and have thus resulted in creation of fear and panic in the minds of public, especially women, and hence, the government had to interfere in order to “maintain public order”.
While allowing the appeals, the bench set aside the order of detention as well as the order of the high court and said the detenus shall be released forthwith in case they are not required in any other case.
The bench noted, "In any case, the State is not without a remedy, as in case the detenu is much a menace to the society as is being alleged, then the prosecution should seek for the cancellation of his bail and/or move an appeal to the Higher Court. But definitely seeking shelter under the preventive detention law is not the proper remedy under the facts and circumstances of the case.
In fact, in a recent decision of this Court, the Court had to make an observation regarding the routine and unjustified use of the Preventive Detention Law in the State of Telangana. This has been done in the case of Mallada K. Sri Ram Vs. The State of Telangana & Ors. 2022 6 SCALE 50."
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