Supreme Court of India
AMEENA BEGUMversusTHE STATE OF TELANGANA & ORS.
- Citation
- 2023 INSC 788
- Decided
- 4 September 2023
- Disposal
- Appeal(s) allowed
- Bench
- SURYA KANT
Holding
The detention order is invalid as it does not establish a genuine threat to public order, relies on stale and irrelevant material, and fails to meet the statutory requirements of the Telangana Prevention of Dangerous Activities Act, 1986.
Summary
The appellant challenged a detention order dated 24 March 2023 issued by the Hyderabad Police Commissioner under the Telangana Prevention of Dangerous Activities Act, 1986, which sought to detain her husband on the ground that his alleged offences threatened public order. The Court examined whether the offences, many of which were isolated incidents affecting private individuals, actually prejudiced public order and whether the detaining authority had considered all relevant circumstances without extraneous factors. It held that the order failed to distinguish between "law and order" and "public order", relied on stale and irrelevant past offences, and ignored the adequacy of ordinary criminal law to address the conduct. The Court also found that the Commissioner improperly invoked preventive detention despite a prior quashed order and the lack of any breach of bail conditions. Consequently, the detention order and the High Court's judgment upholding it were quashed, and the appeal was allowed, ordering the immediate release of the detenu.
Issues considered
- The alleged acts for which the detenu was detained are prejudicial to public order.
- Whether the detaining authority considered all relevant circumstances or relied on extraneous factors in concluding the detenu is a habitual offender.
- Whether the order of detention complied with the procedural and substantive requirements of the Telangana Prevention of Dangerous Activities Act, 1986.
- Whether the continuation of detention for the maximum period of twelve months without proper application of mind is valid.
Legislation cited
- Code of Criminal Procedure, 1973s. 41, s. 41‑A, s. 438
- Indian Penal Code, 1860s. 186, s. 189, s. 195A, s. 323, s. 353, s. 354, s. 384, s. 392, s. 420, s. 504
- 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, 1986s. 10, s. 11, s. 12, s. 13, s. 2(a) (Explanation), s. 3(1), s. 3(2)
Subjects
preventive detentionpublic ordersubjective satisfactionextraneous factorsadvisory boarddetention periodArticle 22constitutional lawlaw and order vs public order
Judgment
[2023] 11 S.C.R. 958 : 2023 INSC 788
CASE DETAILS
AMEENA BEGUM
v.
THE STATE OF TELANGANA & ORS.
(Criminal Appeal No. 2706 of 2023)
SEPTEMBER 04, 2023
[SURYA KANT AND DIPANKAR DATTA, JJ.]
HEADNOTES
Issue for consideration: An order of detention dated 24.03.2023
was passed by the Commissioner of Police against appellant’s husband.
Whether the alleged acts of commission for which the Detenu has been kept
under detention are prejudicial to ‘public order’ and whether all relevant
circumstances were considered or whether extraneous factors weighed in
the mind of the detaining authority leading to the conclusion that the Detenu
is a habitual offender and for prevention of further crimes by him, he ought
to be detained.
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 1986 – During the years 2022 and 2023, in quick
succession, appellant’s husband had committed 9 (nine) more offences
and 5 (five) FIRs were registered under various sections 186, 189, 353,
504, 420, 384, 354, 420, 323, 392, 195A of IPC – An order of detention
dated 24.03.2023 was passed – Propriety:
Held: The order of detention impugned failed to differentiate between
offences which create a “law and order” situation and which prejudicially
affect or tend to prejudicially affect “public order” – Even if the offences
958
AMEENA BEGUM v. THE STATE OF TELANGANA 959
& ORS.
referred to in the Detention Order, alleged to have been committed by the
Detenu have led to the satisfaction being formed, still the same are separate
and stray acts affecting private individuals and the repetition of similar such
acts would not tend to affect the even flow of public life – The offence in
respect of the minor girl did exercise consideration of the Court for some
time but it was noted that the Detenu was not arrested because of an order
passed by the High Court on an application u/s. 438 of the Cr.PC. – Even
otherwise, the gravity of the offences alleged in Arun Ghosh case was
higher in degree, yet, the same were not considered as affecting ‘public
order’ – The only other offence that could attract the enumerated category
of “acting in any manner prejudicial to the maintenance of public order”
and an order of preventive detention, if at all, is the stray incident where the
Detenu has been charged u/s. 353, IPC and where the police has not even
contemplated an arrest u/s. 41 of the Cr.PC – On an overall consideration
of the circumstances, the existing legal framework for maintaining law and
order is sufficient to address like offences under consideration, which the
Commissioner anticipates could be repeated by the Detenu if not detained
– The order of detention is, thus, indefensible. [Paras 29, 39 and 40]
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 1986 – Application of mind in the order of detention
dated 24.03.2023 – Proper or not:
Held: The Detenu was earlier preventively detained under the Act
vide order of detention dated 04.03.2021, since quashed by the High Court
by its order dated 16.08.2021 – The Commissioner stated that the present
order of detention is based only on 5 (five) out of these 9 (nine) crimes
(years 2022-2023), 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” – 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 – However, with the
960 SUPREME COURT REPORTS [2023] 11 S.C.R.
quashing of the order of detention dated 04.03.2021 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 – Since the aforesaid order
of the High Court went unchallenged and is, thus, binding upon the parties,
it was not open to the Commissioner to refer to the very same antecedent
offences again in the Detention Order under challenge – There was no direct
nexus or link with the immediate need to order detention and there were
extraneous considerations in the Detention Order. [Paras 43, 46 and 48]
Preventive detention – Ordinary criminal law and extraordinary
measure of law of preventive detention:
Held: In the instant case, it is neither the case of the respondents that
the Detenu had not complied with the terms of the notice issued u/s. 41-A
of the Cr. PC, nor has it been alleged that the conditions of bail had been
violated by the Detenu – It is pertinent to note that in the three criminal
proceedings where the Detenu had been released on bail, no applications for
cancellation of bail had been moved by the State – In the light of the same,
the provisions of the Act, which is an extraordinary statute, should not have
been resorted to when ordinary criminal law provided sufficient means to
address the apprehensions leading to the impugned Detention Order – There
may have existed sufficient grounds to appeal against the bail orders, but
the circumstances did not warrant the circumvention of ordinary criminal
procedure to resort to an extraordinary measure of the law of preventive
detention. [Para 51]
Preventive detention – Guidance for detaining authorities – Order
to be in plain and simple language:
Held: There is no requirement in law of orders of detention being
expressed in language that would normally be considered elegant or artistic
– An order of detention, which is capable of comprehension, has to precisely
set forth the grounds of detention without any vagueness – The substance of
the order and how it is understood by the detenu determines its nature – An
order in plain and simple language providing clarity of how the subjective
satisfaction was formed is what a detenu would look for, since the detenu
has a right to represent against the order of detention and claim that such
order should not have been made at all. [Para 49]
AMEENA BEGUM v. THE STATE OF TELANGANA 961
& ORS.
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 1986 – Role of the Advisory Board and the Government
in the period of detention:
Held: It is one thing to say that the Advisory Board has expressed an
opinion that there is sufficient cause for the detention and, therefore, the
detention has been continued; yet, it is quite another thing to say that the
detention should continue for the maximum permissible period – In the
light of sub-section (2) of section 11 read with sub-section (1) of section 12
of the Act, the period for which the detention should continue is left to be
specified by the Government with the stipulation in section 13 thereof that
the maximum period shall be 12 (twelve) months from the date of detention
– This appears on a plain reading of the relevant statutory provisions – The
duration for which a detenu is to be kept in detention is for the detaining
authority to decide and not the Advisory Board – The period of detention and
the terminal point has, therefore, to be decided by the Government. [Para 58]
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
1986 – The term “maximum period” in s.13 and continuing detention:
Held: The very term “maximum period” in section 13 vests the
Government with discretion, allowing it to be exercised while considering
whether the detention is to be continued for the maximum period of 12
(twelve) months or any lesser period – The period of detention ought to
necessarily vary depending upon the facts and circumstances of each case
and cannot be uniform in all cases – The objective sought to be fulfilled in
962 SUPREME COURT REPORTS [2023] 11 S.C.R.
each case, whether is sub-served by continuing detention for the maximum
period, ought to bear some reflection in the order of detention; or else, the
Government could be accused of unreasonableness and unfairness. [Paras
63 and 70]
Preventive detention – Judicial reviewability – The Courts to
test the legality of orders of preventive detention, when called upon to
examine the same :
Held: In the circumstances of a given case, a Constitutional Court
when called upon to test the legality of orders of preventive detention
would be entitled to examine whether: (i) the order is based on the requisite
satisfaction, albeit subjective, of the detaining authority, for, the absence of
such satisfaction as to the existence of a matter of fact or law, upon which
validity of the exercise of the power is predicated, would be the sine qua
non for the exercise of the power not being satisfied; (ii) in reaching such
requisite satisfaction, the detaining authority has applied its mind to all
relevant circumstances and the same is not based on material extraneous
to the scope and purpose of the statute; (iii) power has been exercised
for achieving the purpose for which it has been conferred, or exercised
for an improper purpose, not authorised by the statute, and is therefore
ultra vires; (iv) the detaining authority has acted independently or under
the dictation of another body; (v) the detaining authority, by reason of
self-created rules of policy or in any other manner not authorized by the
governing statute, has disabled itself from applying its mind to the facts of
each individual case; (vi) the satisfaction of the detaining authority rests
on materials which are of rationally probative value, and the detaining
authority has given due regard to the matters as per the statutory mandate;
(vii) the satisfaction has been arrived at bearing in mind existence of a
live and proximate link between the past conduct of a person and the
imperative need to detain him or is based on material which is stale; (viii)
the ground(s) for reaching the requisite satisfaction is/are such which an
individual, with some degree of rationality and prudence, would consider
as connected with the fact and relevant to the subject-matter of the inquiry
in respect whereof the satisfaction is to be reached; (ix) the grounds on
which the order of preventive detention rests are not vague but are precise,
pertinent and relevant which, with sufficient clarity, inform the detenu
AMEENA BEGUM v. THE STATE OF TELANGANA 963
& ORS.
the satisfaction for the detention, giving him the opportunity to make a
suitable representation; and (x) the timelines, as provided under the law,
have been strictly adhered to. [Para 25]
Constitution of India – Preventive detention – Reckless invocation
of:
Held: It requires no serious debate that preventive detention, conceived
as an extraordinary measure by the framers of the Constitution, has been
rendered ordinary with its reckless invocation over the years as if it were
available for use even in the ordinary course of proceedings – To unchain
the shackles of preventive detention, it is important that the safeguards
enshrined in the Constitution, particularly under the ‘golden triangle’ formed
by Articles 14, 19 and 21, are diligently enforced. [Para 57]
LIST OF CITATIONS AND OTHER REFERENCES
Haradhan Saha vs. State of West Bengal AIR 1974 SC 2154: [1975]
1 SCR 778; Rameshwar Shaw vs. District Magistrate AIR 1964 SC 334:
[1964] SCR 921; Sunil Fulchand Shah vs. Union of India (2000) 3 SCC
409: [2000] 1 SCR 945; Ram Manohar Lohia vs. State of Bihar [1966] 1
SCR 709; Kuso Sah vs. The State of Bihar (1974) 1 SCC 195; Fagu Shaw vs.
The State of West Bengal (1974) 4 SCC 152: [1974] 2 SCR 832 – followed.
Khudiram Das vs. The State of West Bengal (1975) 2 SCC 81: [1975]
2 SCR 832; Icchu Devi Choraria vs. Union of India (1980) 4 SCC 531:
[1981] 1 SCR 640; Sama Aruna vs. State of Telangana (2018) 12 SCC
150: [2017] 4 SCR 52; Khaja Bilal Ahmed vs. State of Telangana (2020)
13 SCC 632: [2019] 18 SCR 1174; Rekha vs. State of Tamil Nadu (2011)
5 SCC 244: [2011] 4 SCR 740; Rajesh Gulati vs. Govt. of NCT of Delhi
(2002) 7 SCC 129; Vijay Narain Singh vs. State of Bihar (1984) 3 SCC
14: [1984] 3 SCR 435; Banka Sneha Sheela vs. The State of Telangana
(2021) 9 SCC 415; Mallada K Sri Ram vs. State of Telangana 2022 SCC
OnLine SC 424; A.K. Roy vs. Union of India (1982) 1 SCC 271: [1982] 2
SCR 272 – relied on.
Vijay Kumar vs. Union of India (1988) 2 SCC 57; Pesala Nookaraju vs.
The Government of Andhra Pradesh Crl. Appeal No.2304 of 2023, decided
on 16 th August, 2023; – distinguished.
964 SUPREME COURT REPORTS [2023] 11 S.C.R.
A.K. Gopalan vs. State of Madras AIR 1950 SC 27: [1950] SCR 88;
Rustomjee Cawasjee Cooper vs. Union of India AIR 1970 SC 564: [1970]
3 SCR 530; Shibban Lal Saksena vs. State of Uttar Pradesh AIR 1954 SC
179: [1954] SCR 418; Common Cause vs. Union of India (1999) 6 SCC 667:
[1999] 3 SCR 1279; Arun Ghosh vs. State of West Bengal (1970) 1 SCC 98:
[1970] 3 SCR 288; Shaik Nazneen vs. The State of Telangana Crl. Appeal
No.908 of 2022, dated 22nd June 2023; Dattatraya Moreshwar Pangarkar
vs. State of Bombay AIR 1952 SC 181: [1952] SCR 612; Bangalore Medical
Trust vs. B.S. Muddappa (1991) 4 SCC 54: [1991] 3 SCR 102; Deepak vs.
State of Maharashtra 2022 SCC OnLine SC 99; Cherukari Mani vs. Chief
Secretary, Government of Andhra Pradesh (2015) 13 SCC 722: [2014] 6 SCR
750 Susannah Sharp vs. Wakefield & Ors. [1891] A.C. 173, 179 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
2706 of 2023.
From the Judgment and Order dated 28.06.2023 of the high Court for
the State of Telangana at Hyderabad in WP No.9000 of 2023.
Appearances:
Siddharth Luthra, Sr. Adv., Dr. J. P. Dhanda, Ms. Raj Rani Dhanda,
Ms. Suchi Nigam, Ms. Jesal Wahi, Advs. for the Appellant.
Siddharth Dave, Sr. Adv., Sriharsha Peechara, Rajiv Kumar Choudhry,
Duvvuri Subrahmanya Bhanu, Ms. Pallavi, Ms. Kriti Sinha, Rupraj Banerjee,
Advs. for the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
DIPANKAR DATTA, J.
Leave granted.
THE JUDGMENT UNDER CHALLENGE
2. Under assail in this appeal is a judgment and order dated 28th June,
2023 of a Division Bench of the High Court for the State of Telangana (“High
AMEENA BEGUM v. THE STATE OF TELANGANA 965
& ORS. [DIPANKAR DATTA, J.]
Court”, hereafter). Vide the impugned judgment, a writ petition1 instituted
by the appellant seeking a writ of habeas corpus was dismissed and the
order of detention dated 24th March, 2023 (“Detention Order”, hereafter)
of the appellant’s husband (“Detenu”, hereafter), impugned therein, upheld.
THE ORDER OF DETENTION AND FURTHER PROCEEDINGS
3. The Commissioner of Police, Hyderabad City (“Commissioner”,
hereafter) passed the Detention Order against the Detenu 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 1986 (“the
Act”, hereafter). Perusal of the Detention Order reveals that the Detenu
earlier suffered an order of detention dated 4th March, 2021 under the
category of “White Collar Offender”; however, pursuant to an order of
the High Court dated 16th August, 2021in writ proceedings instituted by
his father2, the Detenu was released from detention on 17th August, 2021;
that even after such release, the Detenu did not mend his habitual nature
of committing crimes and in the recent past (during 2022 and 2023), in
quick succession, had committed 9 (nine) more offences within the limits
of Hyderabad Police Commissionerate, as listed therein; that out of such 9
(nine) offences, 5(five) FIRs3 had been taken into consideration; and that
on examination of the material placed before him, the Commissioner was
satisfied that the Detenu was “habitually committing the offences including
outraging the modesty of women, cheating, extortion, obstructing the
public servants from discharging their legitimate duties, robbery and
1 W.P. No.9000 of 2023
2 W.P. No.12321 of 2021
3 (i) FIR No. 227/2022 dated 28.07.2022 for offences under Sections 186, 189, 353,
504, 506, IPC; (ii) FIR No. 262/2022 dated 10.10.2022 for offences under Sections
420, 384, 506 r/w 34, IPC; (iii) FIR No.338/2022 dated 12.10.2022 for offences under
Sections 354, 420, 323, 506 r/w 34, IPC; (iv) FIR No. 18/2023 dated 21.01.2023 for
offences under Sections 506, 420, 406 r/w 34, IPC; and (v) FIR No. 35/2023 dated
08.02.2023 for offences under Sections 392, 195A, IPC.
966 SUPREME COURT REPORTS [2023] 11 S.C.R.
criminal intimidation along with his associates in an organized manner
in the limits of … and he is a ‘Goonda’ as defined in clause (g) of Section
2”of the Act (bold in original). The Commissioner, with a view to prevent
the Detenu from acting in a manner prejudicial to maintenance of public
order, recorded not only his satisfaction for invoking the provisions of the Act
but also recorded a satisfaction that “the ordinary law under which he was
booked is not sufficient to deal with the illegal activities of such an offender
who has no regard for the society. Hence, unless he is detained under the
detention laws, his unlawful activities cannot be curbed”. After referring
to the bail petitions filed by the Detenu in Cr.No.18/2023 of Golconda PS
and Cr.No.35/2023 of Falaknuma PS and bail having been granted despite
suitable counters filed by the prosecution resulting in the Detenu’s release
from jail, the Commissioner observed as follows:
“As seen from his past criminal history, background and antecedents
and also his habitual nature of committing crimes one after the other
and his efforts to come out of the prison, I strongly believe that if
such a habitual criminal is set free, his activities would not be safe
to the society and there is an imminent possibility of his committing
similar offences by violating the bail conditions in one of the cases
which would be detrimental to public order, unless he is preventively
detained from doing so by anappropriate order of detention.”
This was followed by the order detaining the Detenu, treated as a
‘Goonda’, from the date of service of the same with a direction to lodge
him in Central Prison, Chanchalguda, Hyderabad.
4. Upon her husband being detained, the appellant submitted a
representation dated 29th March, 2023 in terms of section 10 of the Act
raising several grounds and seeking revocation of the Detention Order.
Such representation was placed before the Advisory Board constituted under
section 9 of the Act. The Advisory Board vide a report dated 29th April,
2023opined that “there is sufficient cause for the detention of the detenu
…”, whereupon the Government issued an order dated 20th May, 2023 under
sub-section (1) of section 12 read with section 13 of the Act confirming the
Detention Order and directing that the detention be continued for a period
of 12 months from the date of detention, i.e., 27th January, 2023 (sic, 27th
March, 2023). By a further order of even date, the appellant was informed
AMEENA BEGUM v. THE STATE OF TELANGANA 967
& ORS. [DIPANKAR DATTA, J.]
by the Government of absence of any valid grounds/reasons to set aside/
revoke the Detention Order leading to rejection of her representation.
5. The appellant then invoked the writ jurisdiction of the High Court
whereupon the parties were heard and the impugned judgment delivered
containing reasons for dismissing the writ petition.
CONTENTIONS OF THE PARTIES
6. In course of hearing of the appeal, Mr. Luthra, learned senior counsel
for the appellant invited our attention to several paragraphs of the impugned
judgment to demonstrate the errors from which the same suffered, both
factual as well as legal. He also placed on record written notes containing
submissions on factual as well as legal aspects. Relying on the authorities
referred to therein, he prayed for interference by this Court to facilitate
release of the Detenu from illegal detention.
7. Per contra, Mr. Dave, learned senior counsel for the respondents
urged that notwithstanding Mr. Luthra’s attempt to prick holes in the
impugned judgment of the High Court, what is to be seen and read is the
order of detention passed under section 3 and once read, it becomes clear
that the ultimate conclusion recorded in the impugned judgment is defensible
based on the grounds for detention as assigned by the Commissioner in
his order dated 24th March, 2023 and the order dated 20th May, 2023 of the
Government. Other contentions raised by Mr. Dave need not be enumerated
here, for, we intend to deal with the same while proceeding further. However,
to put it concisely, the argument of Mr. Dave has been that the satisfaction
of the detaining authority cannot be subjected to objective tests and that the
courts are not supposed to exercise appellate powers over such authorities;
and that an order, proper on its face, passed by a competent authority in
good faith is a complete answer to negative a claim such as the one raised
by Mr. Luthra. Several authoritative decisions on preventive detention cases
having high precedential value was cited by him and he contended that the
appeal deserves nothing but dismissal.
GENERAL DISCUSSIONSON PREVENTIVE DETENTION
AND JUDICIAL REVIEWABILITY
8. Prior to venturing to decide the contentious issue as to whether the
Detention Order is legal or not, we consider it necessary to remind ourselves
968 SUPREME COURT REPORTS [2023] 11 S.C.R.
of the purpose for which preventive detentionin a particular case could be
ordered, the requisites of a valid detention order and the scope of judicial
reviewability of such order.
9. Clauses (1) and (2) of Article 22 of the Constitution guaranteeing
protection to a person against arbitrary arrest, effected otherwise than under
a warrant issued by a court of law, are regarded as vital and fundamental for
safeguarding personal liberty. Nonetheless, the protection so guaranteed is
subject to clause (3) of Article 22 which operates as an exception to clauses
(1) and (2) and ordains that nothing therein shall apply to, inter alia, any
person who is arrested or detained under any law providing for preventive
detention. The purpose of preventive detention, as said by Hon’ble A.N.
Ray, CJ. in Haradhan Saha vs. State of West Bengal4 is to prevent the
greater evil of elements imperiling the security and safety of a State, and
the welfare of the Nation. Preventive detention, though a draconian and
dreaded measure, is permitted by the Constitution itself but subject to the
safeguards that are part of the relevant article and those carved out by the
Constitutional Courts through judicial decisions of high authority which
have stood the test of time.
10. It is common knowledge that recourse to preventive detention
can be taken by the executive merely on suspicion and as a precaution
to prevent activities by the person, sought to be detained, prejudicial to
certain specified objects traceable in a validly enacted law. Since an order
of preventive detention has the effect of invading one’s personal liberty
merely on suspicion and is not viewed as punitive, and the facts on which
the subjective satisfaction of the detaining authority is based for ordering
preventive detention is not justiciable, meaning thereby that it is not open
to the Constitutional Courts to enquire whether the detaining authority
has erroneously or correctly reached a satisfaction on every question of
fact and/or has passed an order of detention which is not justified on facts,
resulting in narrowing down of the jurisdiction to grant relief, it is only
just and proper that such drastic power is not only invoked in appropriate
cases but is also exercised responsibly, rationally and reasonably. Having
regard to the circumstance of loss of liberty by reason of an order of
4 AIR 1974 SC 2154
AMEENA BEGUM v. THE STATE OF TELANGANA 969
& ORS. [DIPANKAR DATTA, J.]
preventive detention being enforced without the detenu being extended any
opportunity to place his case, the Constitutional Courts being the protectors
of Fundamental Rights have, however, never hesitated to interdict orders
of detention suffering from any of the vices on the existence whereof such
limited jurisdiction of judicial reviewability is available to be exercised.
11. At this stage, a survey of certain authorities outlining the contours
of judicial reviewability of an order of preventive detention may not be inapt.
12. Reading of paragraph 2 of the judgment authored by Hon’ble H.J.
Kania, CJ., reveals that A.K. Gopalan vs. State of Madras5 was the first case
where the different articles on Fundamental Rights came up for discussion
before the Supreme Court. Detention was ordered under the Preventive
Detention Act, 1950 (“the Detention Act”, hereafter). The petitioner therein
challenged the vires of the enactment as well as the detention order. The
decision of the Supreme Court by its full complement of 6 (six) Hon’ble
Judges rendered within 4 (four) months of India becoming a Republic,
revealed an approach of circumscribing Article 21 by a literal interpretation.
Since then, this Court in Rustomjee Cawasjee Cooper vs. Union of India6
has held that “the assumption in A.K. Gopalan case that certain articles in
the Constitution exclusively deal with specific matters and in determining
whether there is infringement of the individual’s guaranteed rights, the object
and the form of the State action alone need be considered, and effect of the
laws on fundamental rights of the individuals in general will be ignored
cannot be accepted as correct”, and it being settled law that the new needs
of a person for liberty in the different spheres of life can now be claimed
as a part of personal liberty under Article 21 and these personal liberties
cannot be restricted either by legislation or law not satisfying Articles 14
and 19, we need not at all be guided by the view expressed in A.K. Gopalan
(supra). Suffice it to observe that A.K. Gopalan (supra) was decided by
this Court at the dawn of the Constitution, keeping in mind the then social
realities, when the true and correct interpretation of the Constitution was
yet to take shape and also without the benefit of any precedent on the point,
which permits understanding of various points of view of Hon’ble Judges
5 AIR 1950 SC 27
6 AIR 1970 SC 564
970 SUPREME COURT REPORTS [2023] 11 S.C.R.
and thereby makes it easy for successors to evolve the dynamic facets of
the Fundamental Rights enshrined in the Constitution.
13. This Court in Shibban Lal Saksena vs. State of Uttar Pradesh7
speaking through Hon’ble B.K. Mukherjea, J. (as the Chief Justice then was)
quashed an order of preventive detention under the Detention Act reasoning
that if one of the two grounds for ordering detention was illegal, the order
of detention could not survive on the other ground. Law was laid down in
the following words:
“8. The first contention raised by the learned counsel raises, however,
a somewhat important point which requires careful consideration.
It has been repeatedly held by this Court that the power to issue a
detention order under Section 3 of the Preventive Detention Act
depends entirely upon the satisfaction of the appropriate authority
specified in that section. The sufficiency of the grounds upon which
such satisfaction purports to be based, provided they have a rational
probative value and are not extraneous to the scope or purpose of the
legislative provision cannot be challenged in a court of law, except
on the ground of malafides. A court of law is not even competent to
enquire into the truth or otherwise of the facts which are mentioned
as grounds of detention in the communication to the detenue under
Section 7 of the Act. What has happened, however, in this case is
somewhat peculiar. The Government itself in its communication dated
13-3-1953, has plainly admitted that one of the grounds upon which
the original order of detention was passed is unsubstantial or non-
existent and cannot be made a ground of detention. The question is,
whether in such circumstances the original order made under Section
3(1)(a) of the Act can be allowed to stand. The answer, in our opinion,
can only be in the negative. The detaining authority gave here two
grounds for detaining the petitioner. We can neither decide whether
these grounds are good or bad, nor can we attempt to assess in what
manner and to what extent each of these grounds operated on the
mind of the appropriate authority and contributed to the creation of
the satisfaction on the basis of which the detention order was made.
7 AIR 1954 SC 179
AMEENA BEGUM v. THE STATE OF TELANGANA 971
& ORS. [DIPANKAR DATTA, J.]
To say that the other ground, which still remains, is quite sufficient
to sustain the order, would be to substitute an objective judicial test
for the subjective decision of the executive authority which is against
the legislative policy underlying the statute. In such cases, we think,
the position would be the same as if one of these two grounds was
irrelevant for the purpose of the Act or was wholly illusory and this
would vitiate the detention order as a whole. ***”
14. In Rameshwar Shaw vs. District Magistrate8, a Constitution Bench
speaking through Hon’ble P.B. Gajendragadkar, J. (as the Chief Justice then
was) in course of interdicting an order of detention passed under section 3
of the Detention Act held as follows:
“7. There is also no doubt that if any of the grounds furnished to the
detenu are found to be irrelevant while considering the application of
clauses (i) to (iii) of Section 3(1)(a) and in that sense are foreign to
the Act, the satisfaction of the detaining authority on which the order
of detention is based is open to challenge and the detention order
liable to be quashed. Similarly, if some of the grounds supplied to the
detenu are so vague that they would virtually deprive the detenu of his
statutory right of making a representation that again may introduce a
serious infirmity in the order of his detention. If, however, the grounds
on which the order of detention proceeds are relevant and germane to
the matters which fall to be considered under Section 3(1)(a), it would
not be open to the detenu to challenge the order of detention by arguing
that the satisfaction of the detaining authority is not reasonably based
on any of the said grounds.
8. It is, however, necessary to emphasise in this connection that though
the satisfaction of the detaining authority contemplated by Section 3(1)
(a) is the subjective satisfaction of the said authority, cases may arise
where the detenu may challenge the validity of his detention on the
ground of mala fides and in support of the said plea urge that along
with other facts which show mala fides the Court may also consider
his grievance that the grounds served on him cannot possibly or
rationally support the conclusion drawn against him by the detaining
8 AIR 1964 SC 334
972 SUPREME COURT REPORTS [2023] 11 S.C.R.
authority. It is only in this incidental manner and in support of the plea
of mala fides that this question can become justiciable; otherwise the
reasonableness or propriety of the said satisfaction contemplated by
Section 3(1)(a) cannot be questioned before the Courts.”
15. In his Counter Affidavit (at pgs. 10 and 11) to the special leave
petition, the Commissioner referred to, and extracted a passage from
paragraph 8 of the decision of this Court in Khudiram Das vs. The State
of West Bengal9, wherein a Bench of 4 (four) Hon’ble Judges of this Court
was examining a challenge to an order of detention passed under section 3
of the Maintenance of Internal Security Act, 1971 (“MISA”, hereafter) by a
district magistrate. We consider it appropriate to notice not only paragraph
8 of the decision rendered by Hon’ble P.N. Bhagwati, J. (as His Lordship
then was) in its entirety but also paragraph 9, reading as follows:
“8. Now it is clear on a plain reading of the language of sub-sections
(1) and (2) of Section 3 that the exercise of the power of detention
is made dependent on the subjective satisfaction of the detaining
authority that with a view to preventing a person from acting in a
prejudicial manner, as set out in sub-clauses (i), (ii) and (iii) of clause
(a) of sub-section (1), it is necessary to detain such person. The words
used in sub-sections (1) and (2) of Section 3 are ‘if satisfied’ and they
clearly import subjective satisfaction on the part of the detaining
authority before an order of detention can be made. And it is so
provided for a valid reason which becomes apparent if we consider
the nature of the power of detention and the conditions on which it can
be exercised. The power of detention is clearly a preventive measure.
It does not partake in any manner of the nature of punishment. It is
taken by way of precaution to prevent mischief to the community.
Since every preventive measure is based on the principle that a person
should be prevented from doing something which, if left free and
unfettered, it is reasonably probable he would do, it must necessarily
proceed in all cases, to some extent, on suspicion or anticipation
as distinct from proof. Patanjali Sastri, C.J. pointed out in State of
Madras v. V.G. Row [(1952) 1 SCC 410 : AIR 1952 SC 196 : 1952
9 (1975) 2 SCC 81
AMEENA BEGUM v. THE STATE OF TELANGANA 973
& ORS. [DIPANKAR DATTA, J.]
SCR 597] that preventive detention is ‘largely precautionary and based
on suspicion’ and to these observations may be added the following
words uttered by the learned Chief Justice in that case with reference
to the observations of Lord Finlay in Rex v. Halliday [1917 AC 260]
namely, that ‘the court was the least appropriate tribunal to investigate
into circumstances of suspicion on which such anticipatory action
must be largely based’. This being the nature of the proceeding, it is
impossible to conceive how it can possibly be regarded as capable
of objective assessment. The matters which have to be considered
by the detaining authority are whether the person concerned, having
regard to his past conduct judged in the light of the surrounding
circumstances and other relevant material, would be likely to act in a
prejudicial manner as contemplated in any of sub-clauses (i), (ii) and
(iii) of clause (1) of sub-section (1) of Section 3, and if so, whether it is
necessary to detain him with a view to preventing him from so acting.
These are not matters susceptible of objective determination and they
could not be intended to be judged by objective standards. They are
essentially matters which have to be administratively determined for
the purpose of taking administrative action. Their determination is,
therefore, deliberately and advisedly left by the Legislature to the
subjective satisfaction of the detaining authority which by reason of
its special position, experience and expertise would be best fitted to
decide them. It must in the circumstances be held that the subjective
satisfaction of the detaining authority as regards these matters
constitutes the foundation for the exercise of the power of detention
and the Court cannot be invited to consider the propriety or sufficiency
of the grounds on which the satisfaction of the detaining authority is
based. The Court cannot, on a review of the grounds, substitute its
own opinion for that of the authority, for what is made a condition
precedent to the exercise of the power of detention is not an objective
determination of the necessity of detention for a specified purpose but
the subjective opinion of the detaining authority, and if a subjective
opinion is formed by the detaining authority as regards the necessity
of detention for a specified purpose, the condition of exercise of the
power of detention would be fulfilled. This would clearly show that
the power of detention is not a quasi-judicial power.
974 SUPREME COURT REPORTS [2023] 11 S.C.R.
9. But that does not mean that the subjective satisfaction of the
detaining authority is wholly immune from judicial reviewability. The
courts have by judicial decisions carved out an area, limited though it
be, within which the validity of the subjective satisfaction can yet be
subjected to judicial scrutiny. The basic postulate on which the courts
have proceeded is that the subjective satisfaction being a condition
precedent for the exercise of the power conferred on the Executive,
the Court can always examine whether the requisite satisfaction is
arrived at by the authority : if it is not, the condition precedent to the
exercise of the power would not be fulfilled and the exercise of the
power would be bad. There are several grounds evolved by judicial
decisions for saying that no subjective satisfaction is arrived at by the
authority as required under the statute. The simplest case is whether
the authority has not applied its mind at all; in such a case the authority
could not possibly be satisfied as regards the fact in respect of which
it is required to be satisfied. Emperor v. Shibnath Bannerji [AIR 1943
FC 75 : 1944 FCR 1 : 45 Cri LJ 341] is a case in point. Then there may
be a case where the power is exercised dishonestly or for an improper
purpose : such a case would also negative the existence of satisfaction
on the part of the authority. The existence of ‘improper purpose’, that
is, a purpose not contemplated by the statute, has been recognised
as an independent ground of control in several decided cases. The
satisfaction, moreover, must be a satisfaction of the authority itself,
and therefore, if, in exercising the power, the authority has acted under
the dictation of another body as the Commissioner of Police did in
Commissioner of Police v. Gordhandas Bhanji [1951 SCC 1088 : AIR
1952 SC 16 : 1952 SCR 135] and the officer of the Ministry of Labour
and National Service did in Simms Motor Units Ltd. v. Minister of
Labour and National Service [(1946) 2 All ER 201] the exercise of the
power would be bad and so also would the exercise of the power be
vitiated where the authority has disabled itself from applying its mind
to the facts of each individual case by self-created rules of policy or
in any other manner. The satisfaction said to have been arrived at by
the authority would also be bad where it is based on the application of
a wrong test or the misconstruction of a statute. Where this happens,
the satisfaction of the authority would not be in respect of the thing in
AMEENA BEGUM v. THE STATE OF TELANGANA 975
& ORS. [DIPANKAR DATTA, J.]
regard to which it is required to be satisfied. Then again the satisfaction
must be grounded ‘on materials which are of rationally probative
value’. Machindar v. King [AIR 1950 FC 129 : 51 Cri LJ 1480 : 1949
FCR 827]. The grounds on which the satisfaction is based must be
such as a rational human being can consider connected with the fact
in respect of which the satisfaction is to be reached. They must be
relevant to the subject-matter of the inquiry and must not be extraneous
to the scope and purpose of the statute. If the authority has taken into
account, it may even be with the best of intention, as a relevant factor
something which it could not properly take into account in deciding
whether or not to exercise the power or the manner or extent to which
it should be exercised, the exercise of the power would be bad. Pratap
Singh v. State of Punjab [AIR 1964 SC 72 : (1964) 4 SCR 733]. If
there are to be found in the statute expressly or by implication matters
which the authority ought to have regard to, then, in exercising the
power, the authority must have regard to those matters. The authority
must call its attention to the matters which it is bound to consider.”
(underlining ours, for emphasis)
16. In Icchu Devi Choraria vs. Union of India 10, the judicial
commitment to strike down illegal detention,even when the petition on
which Rule was issued did not have the requisite pleadings, was highlighted
in the following words:
“5.*** Where large masses of people are poor, illiterate and ignorant
and access to the courts is not easy on account of lack of financial
resources, it would be most unreasonable to insist that the petitioner
should set out clearly and specifi cally the grounds on which he
challenges the order of detention and make out a prima facie case
in support of those grounds before a rule is issued or to hold that
the detaining authority should not be liable to do any thing more
than just meet the specific grounds of challenge put forward by the
petitioner in the petition. The burden of showing that the detention
is in accordance with the procedure established by law has always
been placed by this Court on the detaining authority because Article
10 (1980) 4 SCC 531
976 SUPREME COURT REPORTS [2023] 11 S.C.R.
21 of the Constitution provides in clear and explicit terms that no one
shall be deprived of his life or personal liberty except in accordance
with procedure established by law. This constitutional right of life
and personal liberty is placed on such a high pedestal by this Court
that it has always insisted that whenever there is any deprivation of
life or personal liberty, the authority responsible for such deprivation
must satisfy the court that it has acted in accordance with the law.
This is an area where the court has been most strict and scrupulous in
ensuring observance with the requirements of the law, and even where
a requirement of the law is breached in the slightest measure, the court
has not hesitated to strike down the order of detention or to direct the
release of the detenu even though the detention may have been valid
till the breach occurred. The court has always regarded personal liberty
as the most precious possession of mankind and refused to tolerate
illegal detention, regardless of the social cost involved in the release
of a possible renegade.”
(underlining ours, for emphasis)
17. In a different context, we may take note of the decision in Sama
Aruna vs. State of Telangana11 where, S.A. Bobde, J. (as the Chief Justice
then was) while construing the provisions of the Act, held:
“16. There is little doubt that the conduct or activities of the detenu
in the past must be taken into account for coming to the conclusion
that he is going to engage in or make preparations for engaging in
such activities, for many such persons follow a pattern of criminal
activities. But the question is how far back? There is no doubt that
only activities so far back can be considered as furnish a cause for
preventive detention in the present. That is, only those activities so far
back in the past which lead to the conclusion that he is likely to engage
in or prepare to engage in such activities in the immediate future can
be taken into account.”
In holding that the order of detention therein was grounded on stale
grounds, the Court held that:
11 (2018) 12 SCC 150
AMEENA BEGUM v. THE STATE OF TELANGANA 977
& ORS. [DIPANKAR DATTA, J.]
“The detention order must be based on a reasonable prognosis of the
future behaviour of a person based on his past conduct in light of the
surrounding circumstances. The live and proximate link that must exist
between the past conduct of a person and the imperative need to detain
him must be taken to have been snapped in this case. A detention order
which is founded on stale incidents, must be regarded as an order of
punishment for a crime, passed without a trial, though purporting to be
an order of preventive detention. The essential concept of preventive
detention is that the detention of a person is not to punish him for
something he has done but to prevent him from doing it.”
(underlining ours, for emphasis)
18. This was further affirmed by this Court in Khaja Bilal Ahmed
vs. State of Telangana12, where the detention order dated 2nd November,
2018 issued under the Act had delved into the history of cases involving
the appellant-detenu from the years 2007 - 2016, despite the subjective
satisfaction of the Officer not being based on such cases. In quashing such
an order, Hon’ble Dr. D.Y. Chandrachud, J. (as the Chief Justice then was)
observed:
“23. *** If the pending cases were not considered for passing the
order of detention, it defies logic as to why they were 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
12 (2020) 13 SCC 632
978 SUPREME COURT REPORTS [2023] 11 S.C.R.
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.”
(boldin original)
(underlining ours, for emphasis)
19. We may also refer to the decision of a Constitution Bench of this
Court in Sunil Fulchand Shah vs. Union of India13 wherein the need to
strictly adhere to the timelines, provided as procedural safeguards, was
stressed upon. It was held thus:
“11. *** The safeguards available to a person against whom an order
of detention has been passed are limited and, therefore, the courts
have always held that all the procedural safeguards provided by the
law should be strictly complied with. Any default in maintaining the
time-limit has been regarded as having the effect of rendering the
detention order or the continued detention, as the case may be, illegal.
The justification for preventive detention being necessity a person
can be detained only so long as it is found necessary to detain him. If
his detention is found unnecessary, even during the maximum period
permissible under the law then he has to be released from detention
forthwith. It is really in this context that Section 10 and particularly
the words ‘may be detained’ shall have to be interpreted.”
20. On a conspectus of the decisions referred to above and other
decisions on preventive detention, we may observe here that the argument
commonly advanced on behalf of detaining authorities in the early days of
the Constitution was that the Court’s enquiry ought to be confined to whether
there is an order of detention or not and the moment such an order, good on
its face, is produced, all enquiry into good faith, sufficiency of the reasons
13 (2000) 3 SCC 409
AMEENA BEGUM v. THE STATE OF TELANGANA 979
& ORS. [DIPANKAR DATTA, J.]
or the legality or illegality of the action comes to an end. However, with
passage of time, and expansion and development of law, it is no longer the
law that a preventive detention action, howsoever lawful it might appear on
its face, cannot be invalidated by the Constitutional Courts. This is so, as at
present, there is no administrative order affecting rights of the subjects that
can legitimately claim to be impregnably guarded by a protective shield,
which judicial scrutiny cannot penetrate.
21. Apart from the aforesaid decisions, multiple decisions have been
rendered by this Court over the years which provide suitable guidance to
us to complete the present exercise; however, we wish to conclude this
discussion by referring to one decision of this Court delivered little in excess
of a decade back by a Bench of 3-Judges.
22. In Rekha vs. State of Tamil Nadu14, this Court observed that:
“21. It is all very well to say that preventive detention is preventive
not punitive. The truth of the matter, though, is that in substance a
detention order of one year (or any other period) is a punishment of
one year’s imprisonment. What difference is it to the detenu whether
his imprisonment is called preventive or punitive?
(italics in original)
***
29. Preventive detention is, by nature, repugnant to democratic ideas
and an anathema to the Rule of law. No such law exists in the USA and
in England (except during war time). Since, however, Article 22(3)(b)
of the Constitution of India permits preventive detention, we cannot
hold it illegal but we must confine the power of preventive detention
within very narrow limits, otherwise we will be taking away the great
right to liberty guaranteed by Article 21 of the Constitution of India
which was won after long, arduous and historic struggles. It follows,
therefore, that if the ordinary law of the land (the Penal Code and
other penal statutes) can deal with a situation, recourse to a preventive
detention law will be illegal.”
14 (2011) 5 SCC 244
980 SUPREME COURT REPORTS [2023] 11 S.C.R.
23. There could be little doubt with the thought process that although
the executive would pass an order under the preventive detention laws as
a preventive or a precautionary measure, its effect viewed strictly from
the stand point of the detenuis simply and plainly punitive. Significantly,
an order of detention is not relatable to an alleged commission of offence
which a court is seized of and, thus, the conduct of the accused complained
of is yet to be found blameworthy; on the contrary, since it relates to an
anticipated offence based on past conduct, the detenu could well feel that he
is at the receiving end of a subjective satisfaction of the executive despite
he not being proved to be on the wrong side of the law on any previous
occasion. If someone loses his liberty and lands up in prison not having a
semblance of a chance to resist or protest, the very circumstance of being
put behind bars for such period as specified in the order of detention based
on an anticipation that an offence is likely to be committed by him seems
to be an aspect which does not sync with the norms and ethos of our very
own Constitution and the decisions of this Court in which the concept of
‘LIFE’ has been explained in such a manner that ‘LIFE’ has been infused
in the letters of Article 21 (see Common Cause vs. Union of India15).
Nonetheless, so long clause (3) of Article 22 of the Constitution itself
authorises detention as a preventive measure, there can be no two opinions
that none can take exception to such a measure being adopted and it is only
a limited judicial review by the Constitutional Courts that can be urged by
an aggrieved detenu where for too, in examining challenges to orders of
preventive detention, the Courts would be loath to interfere with or substitute
their own reasoning for the subjective satisfaction arrived at by the detaining
authority. Since the object of a preventive detention law is not punitive but
preventive and precautionary, ordinarily it is best left to the discretion of
the detaining authority.
24. We, however, hasten to observe here that though the decision in
Rekha (supra) reflects on an important aspect of loss of liberty without
trial by taking recourse to preventive detention laws, the decision of the
Constitution Bench in Haradhan Saha (supra) still holds the field and to
the extent the learned Judges in Rekha (supra) sound a note discordant with
15 (1999) 6 SCC 667
AMEENA BEGUM v. THE STATE OF TELANGANA 981
& ORS. [DIPANKAR DATTA, J.]
the law laid down in Haradhan Saha (supra) ought not to be construed as
acceptance by us as the correct exposition of law.
25. Be that as it may, culling out the principles of law flowing from
all the relevant decisions in the field, our understanding of the law for
deciding the legality of an order of preventive detention is that even without
appropriate pleadings to assail such an order, if circumstances appear
therefrom raising a doubt of the detaining authority misconceiving his own
powers, the Court ought not to shut its eyes; even not venturing to make
any attempt to investigate the sufficiency of the materials, an enquiry can be
made by the Court into the authority’s notions of his power. Without being
remotely concerned about the sufficiency or otherwise of the materials on
which detention has been ordered, the Court would be justified to draw a
conclusion, on proof from the order itself, that the detaining authority failed
to realize the extent of his own powers. This is quite apart from questioning
the action for want of sufficient materials that were before the detaining
authority. The authority for the detention is the order of detention itself,
which the detenu or the Court can read. Such a reading of the order would
disclose the manner in which the activity of the detenu was viewed by the
detaining authority to be prejudicial to maintenance of public order and
what exactly he intended should not be permitted to happen. Any order of
a detaining authority evincing that the same runs beyond his powers, as
are actually conferred, would not amount to a valid order made under the
governing preventive detention law and be vulnerable on a challenge being
laid. In the circumstances of a given case, a Constitutional Court when
called upon to test the legality of orders of preventive detention would be
entitled to examine whether
(i) the order is based on the requisite satisfaction, albeit subjective,
of the detaining authority, for, the absence of such satisfaction as
to the existence of a matter of fact or law, upon which validity
of the exercise of the power is predicated, would be the sine
qua non for the exercise of the power not being satisfied;
(ii) in reaching such requisite satisfaction, the detaining authority
has applied its mind to all relevant circumstances and the same
is not based on material extraneous to the scope and purpose
of the statute;
982 SUPREME COURT REPORTS [2023] 11 S.C.R.
(iii) power has been exercised for achieving the purpose for which
it has been conferred, or exercised for an improper purpose,
not authorised by the statute, and is therefore ultra vires;
(iv) the detaining authority has acted independently or under the
dictation of another body;
(v) the detaining authority, by reason of self-created rules of policy
or in any other manner not authorized by the governing statute,
has disabled itself from applying its mind to the facts of each
individual case;
(vi) the satisfaction of the detaining authority rests on materials
which are of rationally probative value, and the detaining
authority has given due regard to the matters as per the statutory
mandate;
(vii) the satisfaction has been arrived at bearing in mind existence of
a live and proximate link between the past conduct of a person
and the imperative need to detain him or isbased on material
which is stale;
(viii) the ground(s) for reaching the requisite satisfaction is/are
such which an individual, with some degree of rationality
and prudence, would consider as connected with the fact and
relevant to the subject-matter of the inquiry in respect whereof
the satisfaction is to be reached;
(ix) the grounds on which the order of preventive detention rests
are not vague but are precise, pertinent and relevant which,
with sufficient clarity, inform the detenu the satisfaction for
the detention, giving him the opportunity to make a suitable
representation; and
(x) the timelines, as provided under the law, have been strictly
adhered to.
Should the Court find the exercise of power to be bad and/or to be
vitiated applying any of the tests noted above, rendering the detention order
vulnerable, detention which undoubtedly visits the person detained with
drastic consequences would call for being interdicted for righting the wrong.
AMEENA BEGUM v. THE STATE OF TELANGANA 983
& ORS. [DIPANKAR DATTA, J.]
ANALYSIS AND DECISION
26. Since in the present case power under section 3 of the Act was
exercised, it is reproduced hereunder for facility of reference:
“3. (1) The Government may, if satisfied with respect to any boot-
legger, dacoit, drug-offender, goonda, immoral traffic offender, Land-
Grabber, Spurious Seed Offender, Insecticide Offender, Fertilizer
Offender, Food Adulteration Offender, Fake Document Offender,
Scheduled Commodities Offender, Forest Offender, Gaming Offender,
Sexual Offender, Explosive Substances Offender, Arms Offender,
Cyber Crime Offender and White Collar or Financial Offender, that
with a view to preventing him from acting in any manner prejudicial
to the maintenance of public order, it is necessary so to do, make an
order directing that such person be detained.
(2) If, having regard to the circumstances prevailing or likely to
prevail in any area within the local limits of the jurisdiction of a
District Magistrate or a Commissioner of Police, the Government are
satisfied that it is necessary so to do, they may, by order in writing,
direct that during such period as may be specified in the order, such
District Magistrate or Commissioner of Police may also, if satisfied
as provided in sub-section (1), exercise the powers conferred by the
said sub-section:
Provided that the period specified in the order made by the Government
under this sub-section shall not in the first instance, exceed three
months, but the Government may, if satisfied as aforesaid that it is
necessary so to do, amend such order to extend such period from time
to time by any period not exceeding three months at any one time.
(3) When any order is made under this section by an officer mentioned
in sub-section (2), he shall forthwith report the fact to the Government
together with the grounds on which the order has been made and such other
particulars as in his opinion, have a bearing on the matter, and no such order
shall remain in force for more than twelve days after the making thereof,
unless, in the meantime, it has been approved by the Government.”
The word used in sub-sections (1) and (2) of section 3 is “satisfied”
and it clearly imports subjective satisfaction on the part of the detaining
authority before an order of detention can be made.
984 SUPREME COURT REPORTS [2023] 11 S.C.R.
27. We now proceed to examine the Detention Order passed by the
Commissioner on 24th March, 2023 under section 3(2) of the Act and
whether such ‘subjective satisfaction’ of the Commissioner stands scrutiny
on application of the requisite tests.
28. In the present case, the Detention Order was based on 5 (five)
distinct offences, of which there is a crime allegedly committed by the
Detenu in relation to a minor girl. Crimes have also been registered on
allegations of cheating, and obstructing a public official from discharging
his duty, as well as a crime has been registered involving dacoity. In
Crime Nos. 262/2022, 18/2023 and 35/2023, charge-sheets are yet to be
filed and the Detenu has been released on bail whereas in regard to Crime
Nos. 338/2022 and 227/2022, charge-sheets have been filed without even
arresting him.
29. The issues with the Detention Order which we need to address
are these: first, whether the alleged acts of commission for which the
Detenu has been kept under detention are prejudicial to ‘public order’ and
secondly, whether all relevant circumstances were considered or whether
extraneous factors weighed in the mind of the detaining authority leading
to the conclusion that the Detenu is a habitual offender and for prevention
of further crimes by him, he ought to be detained. Incidentally, the issue
of whether application of mind is manifest in first ordering detention and
then confirming itby continuing such order for a period of 12 (twelve)
months upon rejection of the representation filed on behalf of the Detenu
by the appellant could also be answered. Needless to observe, we need
not examine the second and the incidental issues if the appeal succeeds
on the first issue.
30. Addressing the first issue first, it has to be understood as a
fundamental imperative as to how this Court has distinguished between
disturbances relatable to “law and order” and disturbances caused to “public
order”.
31. It is trite that breach of law in all cases does not lead to public
disorder. In a catena of judgments, this Court has in clear terms noted the
difference between “law and order” and “public order”.
AMEENA BEGUM v. THE STATE OF TELANGANA 985
& ORS. [DIPANKAR DATTA, J.]
32. We may refer to the decision of the Constitution Bench of this Court
in Ram Manohar Lohia vs. State of Bihar16, where the difference between
“law and order” and “public order” was lucidly expressed by Hon’ble M.
Hidayatullah, J. (as the Chief Justice then was) in the following words:
“54. *** Public order if disturbed, must lead to public disorder.
Every breach of the peace does not lead to public disorder. When two
drunkards quarrel and fight there is disorder but not public disorder.
They can be dealt with under the powers to maintain law and order
but cannot be detained on the ground that they were disturbing public
order. Suppose that the two fighters were of rival communities and
one of them tried to raise communal passions. The problem is still
one of law and order but it raises the apprehension of public disorder.
Other examples can be imagined. The contravention of law always
affects order but before it can be said to affect public order, it must
affect the community or the public at large. A mere disturbance of
law and order leading to disorder is thus not necessarily sufficient for
action under the Defence of India Act but disturbances which subvert
the public order are.
55. It will thus appear that just as ‘public order’ in the rulings of
this Court (earlier cited) was said to comprehend disorders of less
gravity than those affecting ‘security of State’, ‘law and order’ also
comprehends disorders of less gravity than those affecting ‘public
order’. 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 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.”
(underlining ours, for emphasis)
33. For an act to qualify as a disturbance to public order, the specific
activity must have an impact on the broader community or the general
public, evoking feelings of fear, panic, or insecurity. Not every case of
a general disturbance to public tranquillity affects the public order and
16 (1966) 1 SCR 709
986 SUPREME COURT REPORTS [2023] 11 S.C.R.
the question to be asked, as articulated by Hon’ble M. Hidayatullah, CJ.
in Arun Ghosh vs. State of West Bengal17, is this: “Does it [read: the
offending act] lead to disturbance of the current of life of the community
so as to amount a disturbance of the public order or does it affect merely
an individual leaving the tranquillity of the society undisturbed?” In
that case, the petitioning detenu was detained by an order of a district
magistrate since he had been indulging in teasing, harassing and molesting
young girls and assaults on individuals of a locality. While holding that
the conduct of the petitioning detenu could be reprehensible, it was further
held that it (read: the offending act) “does not add up to the situation
where it may be said that the community at large was being disturbed
or in other words there was a breach of public order or likelihood of a
breach of public order”. In the process of quashing the impugned order,
the Chief Justice while referring to the decision in Ram Manohar Lohia
(supra) also ruled:
“3. *** Public order was said to embrace more of the community
than law and order. Public order is the even tempo of the life of the
community taking the country as a whole or even a specified locality.
Disturbance of public order is to be distinguished from acts directed
against individuals which do not disturb the society to the extent of
causing a general disturbance of public tranquillity. It is the degree of
disturbance and its affect upon the life of the community in a locality
which determines whether the disturbance amounts only to a breach
of law and order. … It is always a question of degree of the harm
and its affect upon the community. … This question has to be faced
in every case on facts. There is no formula by which one case can be
distinguished from another.”
34. In Kuso Sah vs. The State of Bihar18, Hon’ble Y.V. Chandrachud,
J. (as the Chief Justice then was) speaking for the Bench held that:
“4. *** The two concepts have well defined contours, it being well
established that stray and unorganised crimes of theft and assault are
not matters of public order since they do not tend to affect the even
17 (1970) 1 SCC 98
18 (1974) 1 SCC 195
AMEENA BEGUM v. THE STATE OF TELANGANA 987
& ORS. [DIPANKAR DATTA, J.]
flow of public life. Infractions of law are bound in some measure to
lead to disorder but every infraction of law does not necessarily result
in public disorder. ***
6. *** The power to detain a person without the safeguard of a court
trial is too drastic to permit a lenient construction and therefore
Courts must be astute to ensure that the detaining authority does not
transgress the limitations subject to which alone the power can be
exercised. ***”
(underlining ours, for emphasis)
35. Turning our attention to section 3(1) of the Act, the Government
has to arrive at a subjective satisfaction that a goonda (as in the present
case) has to be detained, in order to prevent him from acting in a manner
prejudicial to the maintenance of public order. Therefore, we first direct
ourselves to the examination of what constitutes ‘public order’. Even within
the provisions of the Act, the term “public order” has, stricto sensu, been
defined in narrow and restricted terms. An order of detention under section
3(1) of the Act can only be issued against a detenu to prevent him “from
acting in any manner prejudicial to the maintenance of public order”.
“Public order” is defined in the Explanation to section 2(a) of the Act as
encompassing situations that cause “harm, danger or alarm or a feeling
of insecurity among the general public or any section thereof or a grave
wide-spread danger to life or public health”.
36. Ram Manohar Lohia (supra) is an authority to rely upon for
the proposition that if liberty of an individual can be invaded under
statutory rules by the simple process of making of a certain order, he
can be so deprived only if the order is in consonance with the said rule.
Strict compliance with the letter of the rule, in such a case,has to be the
essence of the matter since the statute has the potentiality to interfere
with the personal liberty of an individual and a Court is precluded from
going behind its face. Though circumstances may make it necessary for
ordering a detention without trial, but it would be perfectly legitimate to
require strict observance of the rules in such cases. If there is any doubt
whether the rules have been strictly observed, that doubt must be resolved
in favour of the detenu.
988 SUPREME COURT REPORTS [2023] 11 S.C.R.
37. Rekha too (supra) provides a useful guide. It is said in paragraph
30 that:
“30.Whenever an order under a preventive detention law is challenged
one of the questions the court must ask in deciding its legality is: was
the ordinary law of the land sufficient to deal with the situation? If
the answer is in the affirmative, the detention order will be illegal. In
the present case, the charge against the detenu was of selling expired
drugs after changing their labels. Surely the relevant provisions in
the Penal Code and the Drugs and Cosmetics Act were sufficient to
deal with this situation. Hence, in our opinion, for this reason also the
detention order in question was illegal.”
38. At this stage, it would be useful to consider certain events anterior
to the Detention Order but referred to therein. The earlier order of detention
dated 4th March, 2021 was challenged by the Detenu’s father before the High
Court. Such order of detention was passed considering 4 (four) FIRs under
sections 420 and 406 of the IPC, wherein the Detenu was arraigned as an
accused. In its reasoned judgment dated 16th August, 2021, the High Court
noted this Court having opined in a catena of decisions that there is a vast
difference between “law and order” and “public order”; when offences are
committed against a particular individual it falls within the ambit of “law
and order” whereas when the public at large is adversely affected by the
criminal activities of a person, then such conduct of the person is said to
disturb “public order”. Holding that 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 proper degree and extent of its impact on the society,
it was ruled that the cases do not fall within the ambit of the words “public
order” or “disturbance of public order”, instead, they fall within the scope
of the words “law and order”, and that there was no need for the detaining
authority to pass the impugned order. Based thereon, the impugned order
was quashed and the Detenu set at liberty.
39. In fine, what we find is that the order of detention impugned in that
writ petition failed to differentiate between offences which create a “law
and order” situation and which prejudicially affect or tend to prejudicially
affect “public order”. The present Detention Order fares no better. Even if the
offences referred to in the Detention Order, alleged to have been committed
AMEENA BEGUM v. THE STATE OF TELANGANA 989
& ORS. [DIPANKAR DATTA, J.]
by the Detenuhave led to the satisfaction being formed, still the same are
separate and stray acts affecting private individuals and the repetition of
similar such acts would not tend to affect the even flow of public life. The
offence in respect of the minor girl did exercise our consideration for some
time but we have noted that the Detenu was not arrested because of an
order passed by the High Court on an application under section 438 of the
Criminal Procedure Code (“Cr. PC”, hereafter). The investigating agency
not having elected to have such order quashed by a higher forum, the facts
have their own tale to tell. Even otherwise, the gravity of the offences
alleged in Arun Ghosh (supra) was higher in degree, yet, the same were
not considered as affecting ‘public order’. The only other offence that could
attract the enumerated category of “acting in any manner prejudicial to the
maintenance of public order” and an order of preventive detention, if at
all, is the stray incident where the Detenu has been charged under section
353, IPC and where the police has not even contemplated an arrest under
section 41 of the Cr. PC.
40. On an overall consideration of the circumstances, it does appear
to us that the existing legal framework for maintaining law and order
is sufficient to address like offences under consideration, which the
Commissioner anticipates could be repeated by the Detenu if not detained.
We are also constrained to observe that preventive detention laws—an
exceptional measure reserved for tackling emergent situations—ought not
to have been invoked in this case as a tool for enforcement of “law and
order”. This, for the reason that, the Commissioner despite being aware of
the earlier judgment and order of the High Court dated 16th August, 2021
passed the Detention Order ostensibly to maintain “public order” without
once more appreciating the difference between maintenance of “law and
order” and maintenance of “public order”. The order of detention is, thus,
indefensible.
41. We could have ended our judgment here, but having regard to the
arguments advanced at the Bar we wish to deal with the other issues too.
This, we are persuaded to do, in order to remind the authorities in the state
of Telangana that the drastic provisions of the Act are not to be invoked at
the drop of a hat.
990 SUPREME COURT REPORTS [2023] 11 S.C.R.
42. Now, we proceed with the second issue as to whether there
was proper application of mind to all relevant circumstances or whether
consideration of extraneous factors has vitiated the Detention Order.
43. 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 2019-20, consequent to which the Detenu was preventively detained
under the Act vide order of detention dated 4th March, 2021, since quashed by
the High Court by its order dated 16th August, 2021. It is then stated therein
that the Detenu had committed 9 (nine) offences in the years 2022-23, 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.”
44. Interestingly, even in paragraph 9 E of his Counter Affidavit, the
Commissioner has extracted a portion of the Detention Order which we have
set out in paragraph 3 (supra). The reiteration of considering past criminal
history of the Detenu is not without its effect, as we shall presently discuss.
45. In Khudiram Das (supra), 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.
46. 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
4th March, 2021 by the High Court and such direction having attained finality,
AMEENA BEGUM v. THE STATE OF TELANGANA 991
& ORS. [DIPANKAR DATTA, J.]
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 (supra)
deprecated. Also, as noted above, this Court in Shibban Lal Saksena
(supra) 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.
47. It would not be out of place to examine, at this juncture, whether
the Commissioner as the detaining authority formed the requisite satisfaction
in the manner required by law, i.e., by drawing inference of a likelihood of
the Detenu indulging in prejudicial activities on objective data. Here, we
would bear in mind the caution sounded by this Court in Rajesh Gulati
vs. Govt. of NCT of Delhi19 that a detaining authority should be free from
emotions, beliefs or prejudices while ordering detention as well as take note
of the judgment and order dated 16th August, 2021 of the High Court on
the previous writ petition, instituted by the Detenu’s father. On such writ
petition, the High Court held as follows:
“Under these circumstances, the apprehension of the detaining
authority that since the detenus were granted bail in all the crimes,
there is imminent possibility of the detenus committing similar offences
which are detrimental to public order unless they are prevented from
doing so by an appropriate order of detention, is highly misplaced.
[…] In the instant cases, since the detenus are released on bail, in the
event if it is found that the detenus are involved in further crimes,
the prosecution can apprise the same to the Court concerned and
seek cancellation of bail. Moreover, the criminal law was already
set into motion against the detenus. Since the detenus have allegedly
committed offences punishable under the Indian Penal Code, the said
crimes can be effectively dealt with under the provisions of the Indian
Penal Code. The detaining authority cannot be permitted to subvert,
supplant or substitute the punitive law of land, by ready resort to
preventive detention.”
19 (2002) 7 SCC 129
992 SUPREME COURT REPORTS [2023] 11 S.C.R.
48. Since the aforesaid order of the High Court went unchallenged
and is, thus, binding upon the parties, it was not open to the Commissioner
to refer to the very same antecedent offences again in the Detention Order
under challenge. There was no direct nexus or link with the immediate need
to order detention and we hold extraneous considerations having found their
way into the Detention Order.
49. The other aspect requiring some guidance for detaining authorities
and on which we wish to comment is that there is no requirement in law
of orders of detention being expressed in language that would normally be
considered elegant or artistic. An order of detention, whichis capable of
comprehension, has to precisely set forth the grounds of detention without
any vagueness. The substance of the order and how it is understood by
the detenu determines its nature. An order in plain and simple language
providing clarity of how the subjective satisfaction was formed is what a
detenu would look for, since the detenu has a right to represent against the
order of detention and claim that such order should not have been made
at all. If the detenu fails to comprehend the grounds of detention, the very
purpose of affording him the opportunity to make a representation could be
defeated. At the same time, the detaining authority ought to ensure that the
order does not manifest consideration of extraneous factors. The detaining
authority must be cautious and circumspect that no extra or additional
word or sentence finds place in the order of detention, which evinces the
human factor - his mindset of either acting with personal predilection by
invoking the stringent preventive detention laws to avoid or oust judicial
scrutiny, given the restrictions of judicial review in such cases, or as an
authority charged with the notion of overreaching the courts, chagrined
and frustrated by orders granting bail to the detenu despite stiff opposition
raised by the State and thereby failing in the attempt to keep the detenu
behind bars.
50. What we have expressed above is best exemplified by the
observations of the Commissioner in the Detention Order under challenge,
which are considered appropriate to be quoted. Therein, the Commissioner
inter alia stated as follows:
“The proposed detenu and his associate are notorious offenders and
rowdy sheeters. …
AMEENA BEGUM v. THE STATE OF TELANGANA 993
& ORS. [DIPANKAR DATTA, J.]
The proposed detenu was surrendered before the Hon’ble Court in
Cr.No.35/2023 of Falaknuma PS and the Hon’ble Magistrate remanded
him to judicial custody, he moved bail petitions in Cr.Nos. 18/2023
of GolcondaPS and 35/2023 of Falaknuma PS. The prosecution has
filed suitable counters strongly opposing the grant of bail to him,
but the Hon’ble Magistrate granted bail to him in both the cases and
ordered for his release. Subsequently, he was released from judicial
remand on bail.
As seen from his past criminal history, background and antecedents
and also his habitual nature of committing crimes one after the other
and his efforts to come out of the prison, I strongly believe that if such
a habitual criminal is set free, his activities would not be safe to the
society and there is an imminent possibility of his committing similar
offences by violating the bail conditions in one of the cases, which
would be detrimental to public order, unless he is preventively detained
from doing so by an appropriate order of detention.”
With respect to the stage of proceedings in the offences which form its
basis, the Detention Order states that despite being contested by the State,
bail has been granted to the Detenu in Crimes No. 4 and 5. Insofar as grant
of bail to the Detenu is concerned, the Commissioner states that:
“I strongly believe that if such a habitual criminal is set free his
activities would not be safe to the society and there is an imminent
possibility of his committing similar offences by violating the
bail conditions in one of the cases, which would be detrimental to
public order, unless he is preventively detained from doing so by an
appropriate order of detention.”
51. We are of the opinion that the aforesaid excerpts from the Detention
Order lay bare the Commissioner’s attempt to transgress his jurisdiction and
to pass an order of detention, which cannot be construed as an order validly
made under the Act. The quoted observations are reflective of the intention
to detain the Detenu at any cost without resorting to due procedure. It is
neither the case of the respondents that the Detenu had not complied with
the terms of the notice issued under section 41-A of the Cr. PC, nor has it
been alleged that the conditions of bail had been violated by the Detenu. It
994 SUPREME COURT REPORTS [2023] 11 S.C.R.
is pertinent to note that in the three criminal proceedings where the Detenu
had been released on bail, no applications for cancellation of bail had been
moved by the State. In the light of the same, the provisions of the Act, which
is an extraordinary statute, should not have been resorted to when ordinary
criminal law provided sufficient means to address the apprehensions leading
to the impugned Detention Order. There may have existed sufficient grounds
to appeal against the bail orders, but the circumstances did not warrant the
circumvention of ordinary criminal procedure to resort to an extraordinary
measure of the law of preventive detention.
52. In Vijay Narain Singh vs. State of Bihar 20, Hon’ble E.S.
Venkataramiah, J. (as the Chief Justice then was) observed:
32. ...It is well settled that the law of preventive detention is a hard
law and therefore it should be strictly construed. Care should be
taken that the liberty of a person is not jeopardised unless his case
falls squarely within the four corners of the relevant law. The law of
preventive detention should not be used merely to clip the wings of an
Accused who is involved in a criminal prosecution. It is not intended
for the purpose of keeping a man under detention when under ordinary
criminal law it may not be possible to resist the issue of orders of bail,
unless the material available is such as would satisfy the requirements
of the legal provisions authorising such detention. When a person is
enlarged on bail by a competent criminal court, great caution should
be exercised in scrutinising the validity of an order of preventive
detention which is based on the very same charge which is to be tried
by the criminal court.”
(underlining ours, for emphasis)
53. Resonance of these principles are traceable in Banka Sneha Sheela
vs. The State of Telangana21. There, while examining an order of detention
passed with reference to 5 (five) offences involving sections 420, 406 and
506 of the IPC, in respect whereof the detenu had obtained orders of bail/
anticipatory bail, this Court had the occasion to say that:
20 (1984) 3 SCC 14
21 (2021) 9 SCC 415
AMEENA BEGUM v. THE STATE OF TELANGANA 995
& ORS. [DIPANKAR DATTA, J.]
“A close reading of the Detention Order would make it clear that the
reason for the said Order is not any apprehension of widespread public
harm, danger or alarm but is only because the Detenu was successful
in obtaining anticipatory bail/bail from the Courts in each of the five
FIRs. If a person is granted anticipatory bail/bail wrongly, there are
well-known remedies in the ordinary law to take care of the situation.
The State can always appeal against the bail order granted and/or apply
for cancellation of bail. The mere successful obtaining of anticipatory
bail/bail orders being the real ground for detaining the Detenu, there
can be no doubt that the harm, danger or alarm or feeling of security
among the general public spoken of in Section 2(a) of the Telangana
Prevention of Dangerous Activities Act is make believe and totally
absent in the facts of the present case.”
(underlining ours, for emphasis)
54. On the ground of consideration of extraneous materials too, the
Detention Order is unsustainable.
55. A pernicious trend prevalent in the state of Telangana has not
escaped our attention. While the Nation celebrates Azadi Ka Amrit Mahotsav
to commemorate 75 years of independence from foreign rule, some police
officers of the said state who are enjoined with the duty to prevent crimes and
are equally responsible for protecting the rights of citizens as well, seem to
be oblivious of the Fundamental Rights guaranteed by the Constitution and
are curbing the liberty and freedom of the people. The sooner this trend is
put to an end, the better. Even this Court, in Mallada K Sri Ram vs. State of
Telangana22, while deciding an appeal arising from the state of Telangana,
had the occasion to observe:
“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 Act of
1986 have been set aside by the High Court of Telangana in the last one
22 2022 SCC OnLine SC 424
996 SUPREME COURT REPORTS [2023] 11 S.C.R.
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 pending before the Advisory Board, High Court
and Supreme Court and evaluate the fairness of the detention order
against lawful standards.
(underlining ours, for emphasis)
56. Interference by this Court with orders of detention, routinely issued
under the Act, seems to continue unabated. Even after Mallada K Sri Ram
(supra), in another decision of fairly recent origin in the case of Shaik
Nazneen vs. The State of Telangana23, this Court set aside the impugned
order of detention dated 28th October, 2021 holding that seeking shelter
under preventive detention law was not the proper remedy.
57. It requires no serious debate that preventive detention, conceived
as an extraordinary measure by the framers of our Constitution, has been
rendered ordinary with its reckless invocation over the years as if it were
available for use even in the ordinary course of proceedings. To unchain
the shackles of preventive detention, it is important that the safeguards
enshrined in our Constitution, particularly under the ‘golden triangle’ formed
by Articles 14, 19 and 21, are diligently enforced.
58. Now, we proceed to answer the incidental issue raised before us.
Seldom have we found orders of detention continued, after the advice of
the Advisory Board,for less than the maximum period permissible under
the relevant law. Consideration of the matter by the Advisory Board, which
consists of respectable members including retired High Court judges and
those qualified to become High Court judges, was conceived to act as a safety
valve against abuse of power by the detaining authority and/or to check the
possibility of grave injustice being caused to a detenu. It is one thing to say
that the Advisory Board has expressed an opinion that there is sufficient
cause for the detention and, therefore, the detention has been continued;
yet, it is quite another thing to say that the detention should continue for
the maximum permissible period. In the light of sub-section (2) of section
23 Crl. Appeal No.908 of 2022, dated 22nd June 2023
AMEENA BEGUM v. THE STATE OF TELANGANA 997
& ORS. [DIPANKAR DATTA, J.]
11 read with sub-section (1) of section 12 of the Act, the period for which
the detention should continue is left to be specified by the Government with
the stipulation in section 13 thereof that the maximum period shall be 12
(twelve) months from the date of detention. This appears on a plain reading
of the relevant statutory provisions. That apart, Mr. Luthra is right in placing
reliance on the concurring judgment authored by Hon’ble B.K. Mukherjea, J.
in Dattatraya Moreshwar Pangarkar vs. State of Bombay24 that the duration
for which a detenu is to be kept in detention is for the detaining authority
to decide and not the Advisory Board. The said opinion finds approval in
the decision of the Constitution Bench of this Court in A.K. Roy vs. Union
of India25. The period of detention and the terminal point has, therefore, to
be decided by the Government. Having observed the uncanny consistency
of authorities continuing detention orders under the preventive detention
laws for the maximum permissible span of 12 (twelve) months from the
date of detention as a routine procedure, without the barest of application
of mind, we think that it is time to say a few words with a view to dissuade
continuation of detention orders till the maximum permissible duration
unless some indication is provided therefor by the concerned Government
in the confirmation order.
59. Article 22(4) of the Constitution provides that a preventive
detention law cannot authorise the detention of a person for a period longer
than 3 (three) months unless an Advisory Board has reported before the
expiration of the said period of 3(three) months that there is, in its opinion,
sufficient cause for such detention. It is followed by a non-obstante clause
which reads thus:
“Provided that nothing in this sub-clause shall authorise the detention
of any person beyond the maximum period prescribed by any law made
by Parliament under sub-clause (b) of clause (7)”
60. What section 13 of the Act, with which we are concerned, provides
has been noticed in one of the preceding paragraphs. However, the regular
practice of the authorities treating the maximum period of detention of 12
(twelve) months as the standard duration, in our view, could be suggestive
24 AIR 1952 SC 181
25 (1982) 1 SCC 271
998 SUPREME COURT REPORTS [2023] 11 S.C.R.
of a mechanical approach. Inherent in the conferment of power to extend
detention for 12 (twelve) months is the discretion to make an order to be
operative for any period lesser than the maximum period.
61. Fagu Shaw vs. The State of West Bengal26 is another Constitution
Bench decision of this Court where challenge was laid to section 13 of the
MISA. It was argued that section 13 is bad because it is violative of the
Fundamental Right under Article 14 of the Constitution for the reason that
it has conferred unlimited discretion on the detaining authority to fix the
period of detention. Repelling the challenge, this Court held:
“28. *** The maximum period of detention has been fixed by Section
13 and the discretion to fix the duration within the maximum has
been given to the Government after considering all the relevant
circumstances. Seeing that the maximum period of detention has
been fixed by Section 13 and that the discretion to fix the period of
detention in a particular case has to be exercised after taking into
account a number of imponderable circumstances, we do not think that
there is any substance in the argument that the power of Government
to determine the period of detention is discriminatory or arbitrary.”
62. In A.K. Roy (supra), the Court echoed the above view by holding
that:
“77. Dr Ghatate’s objection against Section 13 is that it provides for
a uniform period of detention of 12 months in all cases, regardless of
the nature and seriousness of the grounds on the basis of which the
order of detention is passed. There is no substance in this grievance
because, any law of preventive detention has to provide for the
maximum period of detention, just as any punitive law like the Penal
Code has to provide for the maximum sentence which can be imposed
for any offence. We should have thought that it would have been wrong
to fix a minimum period of detention, regardless of the nature and
seriousness of the grounds of detention. The fact that a person can be
detained for the maximum period of 12 months does not place upon
the detaining authority the obligation to direct that he shall be detained
26 (1974) 4 SCC 152
AMEENA BEGUM v. THE STATE OF TELANGANA 999
& ORS. [DIPANKAR DATTA, J.]
for the maximum period. The detaining authority can always exercise
its discretion regarding the length of the period of detention.”
(underlining ours, for emphasis)
63. Whenever an accused is tried for an offence under a penal law
which carries a maximum sentence, the Court is obliged while imposing
sentence to apply its mind to the specific facts and circumstances of the
case and to either impose maximum sentence or a lesser sentence. It has,
therefore, a discretion regarding imposition of sentence. We are inclined
to the view that there could be no warrant for the proposition that when it
boils down to confirming an order of detention under a preventive detention
law, which is not punitive, the Government can seek immunity and enjoy
an unfettered, unguided and unlimited discretion in continuing detention
for the maximum period without even very briefly indicating its mind as to
the “imponderables” that were taken into account for fixing the maximum
period. The very term “maximum period” in section 13 vests the Government
with discretion, allowing it to be exercised while considering whether
the detention is to be continued for the maximum period of 12 (twelve)
months or any lesser period. In our opinion, the relevant provisions of the
Act have to be so read as to inhere a safeguard against arbitrary exercise
of discretionary power.
64. Discretion, it has been held by this Court in Bangalore Medical
Trust vs. B.S. Muddappa27, is an effective tool in administration providing an
option to the authority concerned to adopt one or the other alternative. When
a statute provides guidance, or rule or regulation is framed, for exercise of
discretion, then the action should be in accordance with it. Where, however,
statutes are silent and only power is conferred to act in one or the other
manner, the authority cannot act whimsically or arbitrarily; it should be
guided by reasonableness and fairness. A legislature does not intend abuse
of the law or its unfair use.
65. While considering the validity of an externment order under
the Maharashtra Police Act, 1951, this Court in Deepak vs. State of
Maharashtra28 held:
27 (1991) 4 SCC 54
28 2022 SCC OnLine SC 99
1000 SUPREME COURT REPORTS [2023] 11 S.C.R.
“When the competent authority passes an order for the maximum
permissible period of two years, the order of externment must disclose
an application of mind by the competent authority and the order must
record its subjective satisfaction about the necessity of passing an
order of externment for the maximum period of two years which is
based on material on record.”
66. True it is, Deepak (supra) was not a case arising out of preventive
detention laws. However, in situations where discretion is available with
authorities to decide the period of detention, as articulated by Lord Halsbury
in Susannah Sharp vs. Wakefield & Ors. 29, this discretion should be
exercised in accordance with “the rules of reason and justice, not according
to private opinion; according to law, and not humour; it is to be, not arbitrary,
vague, and fanciful, but legal and regular”.
67. We turn to A.K. Roy (supra) once again where the law is expounded
in the following words:
“70. *** We have the authority of the decisions in … for saying that
the fundamental rights conferred by the different articles of Part III of
the Constitution are not mutually exclusive and that therefore, a law
of preventive detention which falls within Article 22 must also meet
the requirements of Articles 14, 19 and 21. ***”
68. Having held thus, we are not unmindful of the decision in Vijay
Kumar vs. Union of India30 where this Court rejected the contention that
the Government had not applied its mind while confirming the detention
of the appellant for the maximum period of 1 (one) year from the date
of detention as prescribed in section 10 of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974. Dealing with
the contention that some reason should have been given why the maximum
period of detention was imposed and while holding it to be without merit, the
main judgment of the presiding judge of the Bench reasoned that section 10
does not provide that any reason has to be given in imposing the maximum
period of detention and that in confirming the order of detention it may
29 [1891] A.C. 173, 179
30 (1988) 2 SCC 57
AMEENA BEGUM v. THE STATE OF TELANGANA 1001
& ORS. [DIPANKAR DATTA, J.]
be reasonably presumed that the Government has applied its mind to all
relevant facts; thus, if the maximum period of detention has been imposed,
it cannot be said that the Government did not apply its mind to the period
of detention. It was also held that in any event section 11 enables revocation
and/or modification of the order by the Government at any time and in the
circumstances, the appellant was in the least prejudiced. The concurring
judgment also took the same view that the authority is not required to give
any special reason either for fixing a shorter period or for fixing the maximum
period prescribed under section 10.
69. Much water has flown under the bridge since then. It is no longer
the law that an administrative authority is under an obligation to give a
reasoned decision only if the statute under which it is acting requires it to
assign reasons. On the contrary, it is only in cases where the requirement
has been dispensed with expressly or by necessary implication that an
administrative authority is relieved of the obligation to record reasons.
Further, the presumption of official acts having been validly performed
cannot be pressed into service for upholding the period for which the
detention would continue if the order of detention itself suffers from an
illegality rendering it unsustainable. That apart, the reasoning of no prejudice
being suffered by the detenu because a power of revocation/modification is
available to the Government would not be of any consolation if such power
were not exercised at all. In such a case, the prejudice would be writ large.
The decision in Vijay Kumar (supra) is, therefore, distinguishable.
70. Viewed reasonably, the period of detention ought to necessarily
vary depending upon the facts and circumstances of each case and cannot
be uniform in all cases. The objective sought to be fulfilled in each
case, whether is sub-served by continuing detention for the maximum
period, ought to bear some reflection in the order of detention; or else,
the Government could be accused of unreasonableness and unfairness.
Detention being a restriction on the invaluable right to personal liberty
of an individual and if the same were to be continued for the maximum
period, it would be eminently just and desirable that such restriction on
personal liberty, in the least, reflects an approach that meets the test of
Article 14. We, however,refrain from pronouncing here that an order of
detention, otherwise held legal and valid, could be invalidated only on the
1002 SUPREME COURT REPORTS [2023] 11 S.C.R.
ground of absence of any indication therein as to why the detention has
been continued for the maximum period. That situation does not arise here
and is left for a decision in an appropriate case.
71. Both Mr. Luthra and Mr. Dave have referred us the recent decision
of a 3-Judges Bench of this Court in the case of Pesala Nookaraju vs. The
Government of Andhra Pradesh31, where an order of detention passed in
exercise of power conferred by the Andhra Pradesh Prevention of Dangerous
Activities of Boot-leggers, Dacoits, Drug Offenders, Goondas, Immoral
Traffic Offenders and Land Grabbers Act, 1986 (“1986 Act”, hereafter)
was upheld despite the detenu having obtained orders of bail upon arrest in
connection with investigation of 4 (four) F.I.R.s under sections 7B and 8B
of the Andhra Pradesh Prohibition Act, 1995.
72. Mr. Luthra intended to rely on the decision in Cherukari Mani
vs. Chief Secretary, Government of Andhra Pradesh32. According to the
appellant, the detention could only be in force for a period of three months in
the first instance and that such order on a periodic assessment was required to
be reviewed for continuous detention till the maximum period permissible.
The contention was accepted by this Court.
73. While hearing of the appeal was in progress, came the decision in
Pesala Nookaraju (supra) overruling Cherukari Mani (supra). It was held
that the “State Government need not review the orders of detention every
three months after it has passed the confirmatory order”. Fairly, Mr. Luthra
did not seek to rely on Cherukari Mani (supra) further.
74. However, according to Mr. Dave, the decision in Pesala Nookaraju
(supra) answered the issue under consideration. Reference was made to a
sentence in paragraph 44 where this Court held that:
“44. *** The Act does not contemplate a review of the detention order
once the Advisory Board has opined that there is sufficient cause for
detention of the person concerned and on that basis, a confirmatory
order is passed by the State Government to detain a person for the
maximum period of twelve months from the date of detention. ***”
31 Crl. Appeal No.2304 of 2023, decided on 16th August, 2023
32 (2015) 13 SCC 722
AMEENA BEGUM v. THE STATE OF TELANGANA 1003
& ORS. [DIPANKAR DATTA, J.]
75. Mr. Luthra rightly pointed out that the excerpted sentence is part of
the discussion made by this Court while dealing with the first contention of
the appellant that the detention order was contrary to the proviso to section
3(2) of the 1986 Act.
76. Mr. Dave next relied on the reasons assigned in Pesala Nookaraju
(supra) to contend that the impugned Detention Order should be held legal
and unexceptionable.
77. On the merits of the matter, we find the Court in Pesala Nookaraju
(supra) to have found the impugned order of detention to be perfectly valid.
This is borne out by paragraphs 65 and 71, which we quote hereunder:
“65. *** if the detention is on the ground that the detenu is indulging
in manufacture or transport or sale of liquor then that by itself would
not become an activity prejudicial to the maintenance of public order
because the same can be effectively dealt with under the provisions
of the Prohibition Act but if the liquor sold by the detenu is dangerous
to public health then under the Act of 1986, it becomes an activity
prejudicial to the maintenance of public order, therefore, it becomes
necessary for the detaining authority to be satisfied on the material
available to it that the liquor dealt with by the detenu is liquor which
is dangerous to public health to attract the provisions of the 1986 Act
and if the detaining authority is satisfied that such material exists either
in the form of report of the Chemical Examiner or otherwise, copy
of such material should also be given to the detenu to affordhim an
opportunity to make an effective representation.
***
71. In the case on hand, the detaining authority has specifically stated
in the grounds of detention that selling liquor by the appellant detenu
and the consumption by the people of that locality was harmful to their
health. Such statement is an expression of his subjective satisfaction
that the activities of the detenu appellant is prejudicial to the
maintenance of public order. Not only that, the detaining authority has
also recorded his satisfaction that it is necessary to prevent the detenu
appellant from indulging further in such activities and this satisfaction
has been drawn on the basis of the credible material on record. ***”
1004 SUPREME COURT REPORTS [2023] 11 S.C.R.
78. It is indeed true that the appellant had raised a contention before
the Court that the Government of Andhra Pradesh had directed detention
of the appellant for the maximum period of 12 (twelve) months without
any application of mind or providing reasons as to why this is necessary.
79. Having read the decision in Pesala Nookaraju (supra), it seems
to us that the Court may not have considered it necessary to deal with the
contention having formed a firm opinion on the materials on record that the
appellant was indulging in activities of selling liquor to consumers which
is harmful for health and, thus, prejudicial to maintenance of public order.
It is on such basis that satisfaction of the detaining authority for ordering
detention commended acceptance of the Court.
80. On the contrary, we have come to the conclusion on facts that the
activities attributed to the appellant’s husband as such cannot be branded as
prejudicial to maintenance of public order. The decision in Pesala Nookaraju
(supra), therefore, is distinguishable and does not assist Mr. Dave. We have,
thus, no hesitation to reject the contentions of Mr. Dave.
CONCLUSION
81. In view of the foregoing discussion, we cannot uphold the Detention
Order. As a consequence, the impugned judgment and order of the High
Court too cannot be upheld. The Detention Order and the impugned judgment
and order stand quashed. The appeal stands allowed, without costs.
82. The appellant’s husband, i.e. the Detenu, shall be released from
detention forthwith.
Headnotes prepared by: Appeal allowed.
Ankit Gyan
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "preventive detention"Sign in to search