Telangana High Court
Manuka Latha vs The State Of Telangana on 15 April, 2024
Author: P.Sam Koshy
Bench: P.Sam Koshy
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU
WRIT PETITION No.6435 of 2024
ORDER :
(per the Hon'ble Sri Justice P.SAM KOSHY)
Heard Mr. P. Giri Krishna, learned counsel for the
petitioner and Mr. Swaroop Oorilla, learned Special Government
Pleader on behalf of learned Additional Advocate General for the
respondents.
2. The present writ petition has been filed aggrieved by the
order passed by respondent No.2/The Collector & District
Magistrate, Rajanna-Siricilla District (Annexure P-1) dated
05.02.2024 under Sub-Section (2) of Section 3 of "The Telangana
Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-
Offenders, Goondas, Immoral 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 (Amendment) Act, 2018"
(In short, the 'Act of 2018').
PSK, J & SSRN, J
3. Invoking the said provision of law, the Collector & District
Magistrate has vide the impugned order has detained the
husband of the petitioner, and have ordered to be lodged in
Central Prison, Cherlapalli.
4. The petitioner herein is the wife of Manuka Kuntaiah, the
son of Pochaiah, who has been vide the impugned order put
under preventive detention, which has led to filing of the present
writ petition.
5. While passing the preventive detention order, the Collector
& District Magistrate referring to a "Rowdy Sheet" opened up
against the husband of the petitioner at Vemulawada Town
Police Station wherein it has been found that the so-called
detenu was involved in the three crimes, viz.,
i. Crime No.184 of 2024 under Section 452, 386, 447, 427
read with 34 IPC of PS Vemulawada Town
ii. Crime No.182 of 2023 under Section 386, 506 read with 34
IPC of PS Konaraopet and
iii. Crime No.192 of 2023 under Section 386, 506 read with
149 IPC of PS Konaraopet.
PSK, J & SSRN, J
6. It is the contention of the learned counsel for the petitioner
that the crimes which have been taken into account by the
authority concerned while passing the preventive detention order
are totally insignificant so as to pass an order of preventive
detention against the husband of the petitioner. It was further
contended that the impugned order is bad in law for the reason
that the nature of crimes said to have been taken into account
by the Collector & District Magistrate was not in connection with
the public order, but were offences which may otherwise fall
under the law and order situation. Thus, in the given said
circumstances, the order of detention is totally un-called for and
is liable to be set-aside/quashed.
7. It was the further contention of the learned counsel for the
petitioner that the impugned order is also bad in law for the
reason that the mandatory requirement in law before passing
the order of preventive detention was not available with the
authority concerned, nor have the mandatory requirements
complied with while passing the order. On this ground also, the
impugned preventive detention order is liable to be quashed.
8. It was further contended by the learned counsel for the
petitioner that though while passing the impugned order the
PSK, J & SSRN, J
authority concerned makes a categorical statement of not taking
into account the old criminal cases pending or decided against
the detenu but relies upon only the three cases that were
recently registered against the detenu in the year 2023-2024
which have been referred to in the preceding paragraphs,
however, the nature of offences in the three cases which have
been taken into account by the Collector & District Magistrate
are not sufficient enough to pass the order of preventive
detention and the same deserves to be set-aside/quashed.
9. Lastly it was contended by the learned counsel for the
petitioner that the impugned order per se is unsustainable in the
light of the recent decision of the Hon'ble Supreme Court in the
case of Nenavath Bujji Etc. vs. The State of Telangana and
Ors. 1, and for all the aforesaid reasons, the impugned order may
be interdicted.
10. On the other hand, the learned Special Government
Pleader referring to various criminal cases in which the detenu
has been either accused or a convict, contended that under such
circumstances, the case of the petitioner clearly falls within the
Criminal Appeal Nos. 1738-39 of 2024
PSK, J & SSRN, J
ambit of Act of 2018 and the impugned order therefore does not
warrant interference.
11. It was also the contention of the learned Special
Government Pleader that the husband of the petitioner, the so-
called detenu, has got certain connections with naxalites and
that he himself in the past was a naxalite. Therefore, there is a
constant threat of there being a law and order disturbance and
public order. It was in these circumstances that the Collector &
District Magistrate has passed the order of preventive detention,
which therefore does not warrant any interference.
12. According to the learned Special Government Pleader, the
detenu has a series of cases lodged against him where he was
involved in offences related to criminal trespass, extortion,
mischief and criminal intimidation and presently the detenu is
in jail in respect of the aforesaid offences. However, in the event
if he is released, there is all possibility of peace and tranquility
so also the law and order and public order getting disturbed and
there would also be a constant threat of the detenu repeating
these very offences detrimental to the general public at large and
the society in general.
PSK, J & SSRN, J
13. It was learned Special Government Pleader's further
contention that the matter of the detenu was also subsequently
scrutinized by the Advisory Board which in turn had reviewed
the decision of the order of detention and had found the decision
to be acceptable in the given facts and circumstances of the case
which all the more weakens the case of the petitioner and the
writ petition therefore deserves to be rejected.
14. Before we delve into the merits of the case, it would be
relevant at this juncture, to refer to a three Judge Bench
decision of the Hon'ble Supreme Court in the case of Nenavath
Bujji (supra). The said judgment also arose from the State of
Telangana whereby similar order had been passed by the
District Magistrate in respect of the two appeals which were
jointly heard by the Hon'ble Supreme Court and wherein also
the nature of offences which were recorded against the detenu in
the said appeals before the Hon'ble Supreme Court where of
similar nature. The Hon'ble Supreme Court in the aforesaid
judgment in paragraph Nos.30 to 32 has held as under:
"30. It is the duty of the Court to issue this writ to
safeguard the freedom of the citizen against arbitrary and
illegal detention. Habeas corpus is a remedy designed to
facilitate the release of persons detained unlawfully, not to
punish the person detaining and it is not, therefore, issued
after the detention complained of has come to an end. It is
PSK, J & SSRN, J
a remedy against unlawful detention. It is issued in the
form of an order calling upon the person who has detained
another, whether in prison or in private custody, to 'have
the body' of that other before the Court in order to let the
Court know on what ground the latter has been confined
and thus to give the Court an opportunity of dealing with
him as the law may require. By the writ of habeas corpus,
the Court can cause any person who is imprisoned to be
brought before the Court and obtain knowledge of the
reason why he is imprisoned and then either set him free
then and there if there is no legal justification for the
imprisonment, or see that he is brought speedily to trial.
Habeas Corpus is available against any person who is
suspected of detaining another unlawfully and not merely
against the police or other public officers whose duties
normally include arrest and detention. The Court must
issue it if it is shown that the person on whose behalf it is
asked for is unlawfully deprived of his liberty. The writ
may be addressed to any person whatsoever an official or a
private individual-who has another in his custody. The
claim (for habeas corpus) has been expressed and pressed
in terms of concrete legal standards and procedures. Most
notably, the right of personal liberty is connected in both
the legal and popular sense with procedures upon the writ
of habeas corpus. The writ is simply a judicial command
directed to a specific jailer directing him or her to produce
the named prisoner together with the legal cause of
detention in order that this legal warrant of detention
might be examined. The said detention may be legal or
illegal. The right which is sought to be enforced by such a
writ is a fundamental right of a citizen conferred under
Article 21 of the Constitution of India, which provides:--"
"Article 21. Protection of life and personal
liberty.--
No person shall be deprived of his life or personal
liberty except according to the procedure
established by law."
31. We are of the view that mere registration of the two
FIRs for the alleged offences of robbery etc. could not have
been made the basis to invoke the provisions of the Act
1986 for the purpose of preventively detaining the
appellant herein on the assumption that he is a
"GOONDA" as defined under Section 2(g) of the Act 1986.
What has been alleged against the appellant detenu could
PSK, J & SSRN, J
be said to have raised the problems relating to law and
order but we find it difficult to say that they impinged on
public order. This Court has time and again, reiterated
that in order to bring the activities of a person within the
expression of "acting in any manner prejudicial to the
maintenance of public order" the activities must be of such
a nature that the ordinary laws cannot deal with them or
prevent subversive activities affecting society. Inability on
the part of the state's police machinery to tackle the law
and order situation should not be an excuse to invoke the
jurisdiction of preventive detention.
32. The crucial issue is whether the activities of the detenu
were prejudicial to public order. While the expression 'law
and order' is wider in scope inasmuch as contravention of
law always affects order, 'Public order' has a narrower
ambit, and could be affected by only such contravention,
which affects the community or the public at large. Public
order is the even tempo of life of the community taking the
country as a whole or even a specified locality. The
distinction between the areas of 'law and order' and 'public
order' is one of degree and extent of the reach, of the act in
question on society. It is the potentiality of the act to
disturb the even tempo of life of the community which
makes it prejudicial to the maintenance of the public
order. If a contravention in its effect is confined only to a
few individuals directly involved as distinct from a wide
spectrum of public, it could raise problem of law and order
only. In other words, the true distinction between the
areas of law and order and public order lies not merely in
the nature or quality of the act, but in the degree and
extent of its reach upon society. Acts similar in nature, but
committed in different contexts and circumstances, might
cause different reactions. In one case it might affect
specific individuals only, and therefore touches the
problem of law and order only, while in another it might
affect public order. The act by itself, therefore, is not
determinant of its own gravity. In its quality it may not
differ from other similar acts, but in its potentiality, that
is, in its impact on society, it may be very different. [See:
Union of India v. Amrit Lal Manchanda, (2004) 3 SCC 75.]"
15. Further, the Hon'ble Supreme Court in paragraph Nos.35
and 36 has held as under:
PSK, J & SSRN, J
i. Extraneous Considerations that weighed with
the Detaining Authority thereby vitiating the Order of
Preventive Detention.
"35. We take notice of the fact that in the case on hand,
the Detaining Authority has laid much stress on the fact
that in the year 2023 in quick succession four FIRs came
to be registered against the appellant for the offence of
theft, robbery etc. However, the Detaining Authority took
into consideration only two FIRs registered for the offences
said to have committed within his territorial jurisdiction.
The Detaining Authority in its order of detention has
clearly stated that he has taken into consideration only the
two FIRs registered for the alleged offence committed
within his territorial jurisdiction. The Detaining Authority
in clear terms has stated that he could not have made the
other two FIRs referred to in the order of detention as the
basis for arriving at the subjective satisfaction that the
activities of the appellant detenu are prejudicial to the
maintenance of the public order. However, after saying so,
the Detaining Authority has in so many words stated that
the other two FIRs have been considered to look into the
criminal history of the appellant detenu.
36. We are of the view that in the aforesaid context, the
Detaining Authority is not correct and he could be said to
have taken into consideration something extraneous."
16. In the case of Ameena Begum vs. State of Telangana and
Others 2 poised with a similar circumstances and situation, the
Hon'ble Supreme Court in paragraph Nos.50 to 53 has held as
under:
"50. Considering past criminal history, which is proximate,
by itself would not render an order illegal. The
Commissioner in the detention order made pointed
reference to the detenu being a habitual offender by listing
10 (ten) criminal proceedings in which the detenu was
involved during the years 2019-2020, consequent to which
(2023) 9 SCC 587
PSK, J & SSRN, J
the detenu was preventively detained under the Act vide
order of detention dated 4-3-2021, since quashed by the
High Court by its order dated 16-8-2021 [Hakeem Khan v.
State of Telangana, 2021 SCC OnLine TS 3663]. It is then
stated therein that the detenu had committed 9 (nine)
offences in the years 2022- 2023, and these offences are
again listed out in detail. However, the Commissioner
states that the present order of detention is based only on
5 (five) out of these 9 (nine) crimes, which are alleged to
show that the detenu's activities are "prejudicial to the
maintenance of public order, apart from disturbing peace
and tranquillity in the area".
51. Interestingly, even in Para 9-E of his counter-affidavit,
the Commissioner has extracted a portion of the detention
order which we have set out in para 4. The reiteration of
considering past criminal history of the detenu is not
without its effect, as we shall presently discuss.
52. In Khudiram Das [Khudiram Das v. State of W.B.,
(1975) 2 SCC 81 : 1975 SCC (Cri) 435] , while examining
the "history sheet" of the detenu, this Court had, in
express terms, clarified that a generalisation could not be
made that the detenu was in the habit of committing those
offences. Merely because the detenu was charged for
multiple offences, it could not be said that he was in the
habit of committing such offences. Further, habituality of
committing offences cannot, in isolation, be taken as a
basis of any detention order; rather it has to be tested on
the metrics of "public order", as discussed above.
Therefore, cases where such habituality has created any
"public disorder" could qualify as a ground to order
detention.
53. Although the Commissioner sought to project that he
ordered detention based on the said 5 (five) FIRs,
indication of the past offences allegedly committed by the
detenu in the detention order having influenced his
thought process is clear. With the quashing of the order of
detention dated 4-3-2021 by the High Court and such
direction having attained finality, it defies logic why the
Commissioner embarked on an elaborate narration of past
offences, which are not relevant to the grounds of the
present order of detention. This is exactly what this Court
in Khaja Bilal Ahmed [Khaja Bilal Ahmed v. State of
Telangana, (2020) 13 SCC 632 : (2020) 4 SCC (Cri) 629]
deprecated. Also, as noted above, this Court in Shibban
PSK, J & SSRN, J
Lal Saksena [Shibban Lal Saksena v. State of U.P., (1953)
2 SCC 617 : AIR 1954 SC 179] held that such an order
would be a bad order, the reason being that it could not be
said in what manner and to what extent the valid and
invalid grounds operated on the mind of the authority
concerned and contributed to his subjective satisfaction
forming the basis of the order."
(Emphasis supplied)
17. A similar stand has also been taken by the Hon'ble
Supreme Court in the case of Khaja Bilal Ahmed vs. State of
Telangana and Others 3 wherein in paragraph No.23 it has been
held as under:
"23. In the present case, the order of detention states that
the fourteen cases were referred to demonstrate the
"antecedent criminal history and conduct of the
appellant". The order of detention records that a "rowdy
sheet" is being maintained at PS Rain Bazar of Hyderabad
City and the appellant "could not mend his criminal way of
life" and continued to indulge in similar offences after
being released on bail. In the counter-affidavit filed before
the High Court, the detaining authority recorded that
these cases were "referred by way of his criminal
background ... (and) are not relied upon". The detaining
authority stated that the cases which were registered
against the appellant between 2009 and 2016 "are not at
all considered for passing the detention order" and were
"referred by way of his criminal background only". This
averment is plainly contradictory. The order of detention
does, as a matter of fact, refer to the criminal cases which
were instituted between 2007 and 2016. In order to
overcome the objection that these cases are stale and do
not provide a live link with the order of detention, it was
contended that they were not relied on but were referred to
only to indicate the antecedent background of the detenu.
If the pending cases were not considered for passing the
order of detention, it defies logic as to why they were
(2020) 13 SCC 632
PSK, J & SSRN, J
referred to in the first place in the order of detention. The
purpose of the Telangana Offenders Act, 1986 is to prevent
any person from acting in a manner prejudicial to the
maintenance of public order. For this purpose, Section
3 prescribes that the detaining authority must be satisfied
that the person to be detained is likely to indulge in illegal
activities in the future and act in a manner prejudicial to
the maintenance of public order. The satisfaction to be
arrived at by the detaining authority must not be based on
irrelevant or invalid grounds. It must be arrived at on the
basis of relevant material; material which is not stale and
has a live link with the satisfaction of the detaining
authority. The order of detention may refer to the previous
criminal antecedents only if they have a direct nexus or
link with the immediate need to detain an individual. If the
previous criminal activities of the appellant could indicate
his tendency or inclination to act in a manner prejudicial
to the maintenance of public order, then it may have a
bearing on the subjective satisfaction of the detaining
authority. However, in the absence of a clear indication of
a causal connection, a mere reference to the pending
criminal cases cannot account for the requirements
of Section 3. It is not open to the detaining authority to
simply refer to stale incidents and hold them as the basis
of an order of detention. Such stale material will have no
bearing on the probability of the detenu engaging in
prejudicial activities in the future."
(Emphasis supplied)
18. In yet another case of similar nature which arose from the
State of Telangana in Shaikh Nazeen vs. State of Telangana
and others 4 in paragraph Nos.11 and 19 has held as under:
"11. The detention order was challenged by the wife of the
detenu in a habeas corpus petition before the Division
Bench of the Telangana High Court. The ground taken by
the petitioner before the High Court was that reliance has
been taken by the Authority of four cases of chain
(2023) 9 SCC 633
PSK, J & SSRN, J
snatching, as already mentioned above. The admitted
position is that in all these four cases the detenu has been
released on bail by the Magistrate. Moreover, in any case,
the nature of crime as alleged against the petitioner can at
best be said to be a law and order situation and not the
public order situation, which would have justified invoking
the powers under the preventive detention law. This,
however did not find favour with the Division Bench of the
High Court, which dismissed the petition, upholding the
validity of the detention order.
xxx xxx xxx
19. 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."
(Emphasis supplied)
19. The Hon'ble Supreme Court elaborately considering the
matters referring to preventive detention in the case of Shaikh
Nazeen (supra) has summarized and concluded by observing as
under:
ii. Summary of the Findings.
"43. We summarize our conclusions as under: -
(i) The Detaining Authority should have taken into
consideration only relevant and vital material to arrive at
the requisite subjective satisfaction,
(ii) It is an unwritten law, constitutional and
administrative, that wherever a decision-making function
is entrusted to the subjective satisfaction of the statutory
functionary, there is an implicit duty to apply his mind to
the pertinent and proximate matters and eschew those
which are irrelevant & remote,
PSK, J & SSRN, J
(iii) There can be no dispute about the settled
proposition that the detention order requires subjective
satisfaction of the detaining authority, which ordinarily,
cannot be questioned by the court for insufficiency of
material. Nonetheless, if the detaining authority does not
consider relevant circumstances or considers wholly
unnecessary, immaterial and irrelevant circumstances,
then such subjective satisfaction would be vitiated,
(iv) In quashing the order of detention, the Court does
not sit in judgment over the correctness of the subjective
satisfaction. The anxiety of the Court should be to
ascertain as to whether the decision-making process for
reaching the subjective satisfaction is based on objective
facts or influenced by any caprice, malice or irrelevant
considerations or non-application of mind,
(v) While making a detention order, the authority
should arrive at a proper satisfaction which should be
reflected clearly, and in categorical terms, in the order of
detention,
(vi) The satisfaction cannot be interfered by mere
statement in the order that "it was necessary to prevent
the detenu from acting in a manner prejudicial to the
maintenance of public order". Rather the detaining
authority will have to justify the detention order from the
material that existed before him and the process of
considering the said material should be reflected in the
order of detention while expressing its satisfaction,
(vii) Inability on the part of the state's police machinery
to tackle the law and order situation should not be an
excuse to invoke the jurisdiction of preventive detention,
(viii) Justification for such an order should exist in the
ground(s) furnished to the detenu to reinforce the order of
detention. It cannot be explained by reason(s) / ground(s)
not furnished to the detenu. The decision of the authority
must be the natural culmination of the application of mind
to the relevant and material facts available on the record,
and
(ix) To arrive at a proper satisfaction warranting an
order of preventive detention, the detaining authority must
first examine the material adduced against the prospective
detenu to satisfy itself whether his conduct or
antecendent(s) reflect that he has been acting in a manner
PSK, J & SSRN, J
prejudicial to the maintenance of public order and,
second, if the aforesaid satisfaction is arrived at, it must
further consider whether it is likely that the said person
would act in a manner prejudicial to the public order in
near future unless he is prevented from doing so by
passing an order of detention. For passing a detention
order based on subjective satisfaction, the answer of the
aforesaid aspects and points must be against the
prospective detenu. The absence of application of mind to
the pertinent and proximate material and vital materials
would show lack of statutory satisfaction on the part of the
detaining authority."
20. Lastly, while closing the matter, the Hon'ble Supreme
Court came down heavily on the State of Telangana in respect of
rising orders of preventive detention being passed by the
authorities in the State of Telangana. The Hon'ble Supreme
Court in Shaikh Nazeen (supra) in paragraph Nos.44 to 50, 56
and 57 has held as under:
"iii. The Saga Continues
44. We are dealing with a litigation arising from an order of
preventive detention passed by the State of Telangana
under the provisions of the Act 1986.
45. This is one more litigation going against the State of
Telangana. We remind the State of Telangana of what has
been observed by this Court in Mallada K Sri Ram v.
State of Telangana reported in (2023) 13 SCC 537 in para
17:
"17. It is also relevant to note, 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
PSK, J & SSRN, J
Act of 1986 have been set aside by the High Court
of Telangana in the last year itself. These numbers
evince a callous exercise of the exceptional power
of preventive detention by the detaining
authorities and the respondent-state. We direct
the respondents to take stock of challenges to
detention orders passing before the Advisory
Board, High Court and Supreme Court and
evaluate the fairness of the detention order
against lawful standards."
46. Again, in one of the recent pronouncements of this
Court in Ameena Begum (supra), this Court referring to
Mallada K. Sri Ram (supra) observed in para 65 as under:
"65. Interference by this Court with orders of
detention, routinely issued under the Act, seems
to continue unabated. Even after Mallada K. Sri
Ram [Mallada K. Sri Ram v. State of Telangana,
(2023) 13 SCC 537 : 2022 SCC OnLine SC 424] ,
in another decision of fairly recent origin in Sk.
Nazeen v. State of Telangana [Sk. Nazeen v. State
of Telangana, (2023) 9 SCC 633] , this Court set
aside the impugned order of detention dated 28-
10-2021 holding that seeking shelter under
preventive detention law was not the proper
remedy."
47. We hope that the State of Telangana takes what
has fallen from this Court very seriously and sees to it that
the orders of preventive detention are not passed in a
routine manner without any application of mind.
48. We hope that the State of Telangana does not give
any good reason once again to this Court to observe
anything further.
iv. Role of the Advisory Board
49. At this stage, it is also apposite to mention that in
such scenarios as discussed above, where orders of
preventive detention are being passed by the Detaining
Authority in a routine and mechanical manner, the role
and duty of the Advisory Board(s) becomes all the more
imperative to put a check on such capricious exercise of
powers and ensure that a bright-line is drawn whereby
such illegal detentions are nipped in the bud and the
detenu released forthwith.
PSK, J & SSRN, J
50. Advisory Board(s) under preventive detention
legislations, are not a superficial creation but one of the
primary constitutional safeguards available to the detenu
against an order of detention. Article 22(4) mandates that,
any law pertaining to preventive detention must provide
for constitution of an Advisory Board consisting of persons
who have been or qualified to be appointed as judges of
the High Court. It further vests the Advisory Board with
the pivotal role of reviewing an order of detention within
three-months by forming an opinion as to whether there is
a sufficient cause for such detention or not, after
consideration of all the material on record including
representation if any, of the detenu.
56. The framers of the Constitution being in seisin of
the draconian nature of an order of preventive detention
and its adverse impact on individual liberty, have
specifically put in place safeguards within Article 22
through the creation of an Advisory Board, to ensure that
any order of preventive detention is only confirmed upon
the evaluation and scrutiny of an independent authority
which determines and finds that such an order for
detention is necessary.
57. The legislature in its wisdom has thought if fit, to
entrust the Advisory Board and no one else, not even the
Government, with the performance of this crucial and
critical function which ultimately culminates into either
the confirmation or revocation of a detention order. The
Advisory Board setup under any preventive detention law
in order to form its opinion is required to; (i) consider the
material placed before it; (ii) to call for further information,
if deemed necessary; (iii) to hear the detenu, if he desires
to be heard and; (iv) to submit a report in writing as to
whether there is sufficient cause for "such detention" or
whether the detention is justified."
21. The Hon'ble Supreme Court had clearly mandated that the
Advisory Boards were not required to be mere rubbery stamp
authority in matters of preventive detention. It was the clear
observation of the Hon'ble Supreme Court that when matters of
PSK, J & SSRN, J
preventive detention are placed before the Advisory Board for
review, it must be seriously scrutinized by the Advisory Board
ascertaining whether the detention is justified or not and
whether the detention is against the provisions of the Act or in
contravention of law.
22. According to the Hon'ble Supreme Court an order of
preventive detention is a draconian measure and if such orders
are passed capriciously or as a matter of routine, such exercise
must be forthwith interdicted. The Hon'ble Supreme Court had
clearly indicated that the Advisory Board was expected to
conduct a robust scrutiny and examine whether the order of
detention was justified or not.
23. Coming to the present case, the plain reading of the
impugned order would give an indication that the gap at which
criminal cases has been registered against the so-called detenu
itself would show that he cannot be said to a habitual offender;
rather, it could be a case where he has a track record with many
criminal cases against him. The two are entirely different
altogether. One is a case where criminal cases are registered of
serious nature involving breach of public orders at regular
intervals, whereas, the other is a case where a person could be
PSK, J & SSRN, J
an accused in many cases but the cases have been registered
not in continuation or at regular interval, but with a gap of
considerable period of time in between the two offences.
24. A plain reading of the criminal background of the detenu
reflected in the impugned order would clearly show that the
authority concerned have not taken into account the criminal
track record of the detenu, but only has considered the three
criminal cases registered during the period 2023. Further
reading of the impugned order would only reflect that the
authority concerned has only referred to the fact of the three
cases registered against him. However, there is no discussion as
to the reasons which led to the authority concerned to reach to
the conclusion that the detenu in the present case would be a
threat to the public order as also the law and order. In the
absence of which, both by the authority concerned as also by the
Advisory Board makes the order violative and in contravention to
the observations and directions given by the Hon'ble Supreme
Court in the case of Nenavath Bujji (supra). The same therefore
would not be sustainable.
25. Accordingly, we are of the considered opinion that the
impugned order dated 05.02.2024 therefore deserves to be and
PSK, J & SSRN, J
is accordingly set-aside/quashed. In the result, the present writ
petition stands allowed. No costs.
26. Consequently, miscellaneous petitions pending if any, shall
stand closed.
__________________
P.SAM KOSHY, J
____________________________
SAMBASIVARAO NAIDU, J
Date: 15.04.2024
GSD
