The Telangana High Court recently comprising of a division bench of Justices A.Rajashekar Reddy And Dr. Shameem Akther held that An order or detention is not a curative or reformative or punitive action, but a preventive action, the avowed object of which is to prevent the anti-social and subversive elements from imperiling the welfare of the people or the security of the nation or from disturbing the public tranquility or from indulging in white collar offenses. (Banka Sneha Sheela v. State of Telangana)
Facts of the case
The detainee is a Stock Market Trader with five criminal cases filed against him wherein charge-sheet is not filed and he had been granted bail. Habeas corpus petition has been filed by wife of detainee, challenging the detention order of Commissioner of Police under Section 3(2) Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land-Grabbers, Spurious Seed offenders, Insecticide Offenders, Fertilizer Offenders, Food Adulteration Offenders, Fake Document offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders & White Collar or Financial Offenders Act, 1986. (for short "P.D. Act").
Contention of the parties
The learned counsel for the petitioner has vehemently contended that the impugned detention order is illegal, arbitrary, unconstitutional, improper, against the principles of natural justice and has been passed in a mechanical manner and without application of mind. All the five cases relied upon by the detaining authority for preventively detaining the detenu have been foisted against the detenu at the instigation of the complainants therein to extract money and there is no incriminating material against the detenu in the said cases.
He said Collecting huge money from public for investing in same in stock market by promising good returns, in any event, would not satisfy the word ‘White Collar Offender’. The detaining authority has to be extremely careful while passing the detention order, since the detention ipso facto adversely affects the fundamental right of personal liberty enjoyed by the people under Article 21 of the Constitution of India. Thus, the detention order is legally unsustainable and ultimately, prayed to set aside the same and allow the writ petition as prayed for.
On the other hand, Sri T.Srikanth Reddy, learned Government Pleader for Home, contended that the detenu is a ‘White Collar Offender’. He has repeatedly indulged in white collar offences by contacting innocent people stating that he is a High Court Advocate and inspired them to invest money in newly upcoming companies.
The counsel further submitted Preventive detention is different from punitive detention. Preventive detention is a precautionary measure basing on reasonable anticipation and it does not overlap with the prosecution. Out of five crimes relied by the detaining authority in preventively detaining the detenu, in four crimes, investigation has been completed and charge-sheets have been filed.
Court's Observation and Judgment
The court in order to highlight the legal parameters for testing the validity of ‘preventive detention’ and ‘Public order’ which is distinct from ‘law and order’ made reference to the Supreme Court judgement in Commissioner of Police & Others Vs. C.Anita, wherein the following observations were made,
“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 in as much as contravention of law always affects order, “public order” has a narrower ambit, and public order 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 the 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.”
Considering the precedent and the facts of the case court held that, the modus operandi of the detainee in the alleged offenses, to collect money form gullible public and fraud which was committed in quick succession would certainly disturb the public peace and tranquility. Personal liberty of an individual, can also be taken away by following the procedure established by law, when it is used to jeopardize the public good and not merely private interests.
The court while dismissing the Writ petition remarked,
"The detaining authority had sufficient material to record subjective satisfaction that the detention of the detenu was necessary to maintain public order and even tempo of life of the community. The order of detention does not suffer from any illegality. The grounds of detention, as indicated in the impugned order, are found to be relevant and in tune with the provisions of the P.D.Act. Since the detenu got bail in all the five cases relied upon by the detaining authority, there is nothing wrong on the part of the detaining authority in raising an apprehension that there is every possibility of the detenu committing similar offences, which would again certainly affect the public order…..
The facts and circumstances indicate that the acts of the detenu cannot be effectively dealt with under ordinary criminal law. Under these circumstances, the detaining authority is justified in passing the impugned detention order. We do not see any merit in this Writ Petition and as such, it is liable to be dismissed."
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