MALLADA K SRI RAMversusTHE STATE OF TELANGANA & ORS.

                         [2022] 3 S.C.R. 5                              5


                     MALLADA K SRI RAM                                  A
                                 v.
             THE STATE OF TELANGANA & ORS.
                 (Criminal Appeal No 561 of 2022)
                           APRIL 04, 2022                               B
            [DR. DHANANJAYA Y CHANDRACHUD
                     AND SURYA KANT, JJ.]
       Preventive Detention – Telangana Prevention of Dangerous
Activities of Bootleggers, Dacoits, Drug-Offenders,Goondas,
Immoral Traffic Offenders, Land Grabbers, Spurious Seed                 C
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           D
Act,1986 – s.3(2) and 2(x) – Order of detention u/s.3(2) – It was
alleged that detenu was a ‘white-collar offender’ u/s.2(x) who
cheated gullible job aspirants which was prejudicial to
“maintenance of public order “– Detenu had moved bail applications
in two cases in which he was in judicial custody and the Magistrate
had granted him conditional bail, however, as recorded in the           E
detention order, it was apprehended that he may violate the bail
conditions while committing similar offences – Detention order
challenged – Held: Order of detention, on facts, was evidently based
on stale material and demonstrated non-application of mind on part
of the detaining authority to the fact that the conditions imposed on   F
the detenu, while granting bail, were duly fulfilled and there was
no incidence of further violation – High Court failed to probe the
existence of a live and proximate link between the past cases and
the need to detain the detenu – Mere apprehension of a breach of
law and order is not sufficient to meet the standard of adversely
affecting the “maintenance of public order” – Apprehension of a         G
disturbance to public order owing to a crime reported over seven
months prior to the detention order had no basis in fact – Nature of
allegations against the detenu are grave – However, personal liberty
of an accused cannot be sacrificed on the altar of preventive
detention merely because a person is implicated in a criminal
                                                                        H
                                   5
6            SUPREME COURT REPORTS                      [2022] 3 S.C.R.


A   proceeding – Clear example of non-application of mind to material
    circumstances having a bearing on the subjective satisfaction of
    the detaining authority – Detention order accordingly quashed and
    set aside – Public Order – Constitution of India, 1950 – Art.22.
          Preventive Detention – Detention orders under Telangana Act
B   of 1986 – Callous exercise of exceptional powers by detaining
    authorities and respondent-State – Incorrect application of standard
    for maintenance of public order and reliance on stale materials
    while passing orders of detention – Respondents directed to take
    stock of challenges to detention orders pending before the Advisory
    Board, High Court and Supreme Court and evaluate fairness of the
C   detention orders against lawful standards – 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
D   Commodities Offenders, Forest Offenders, Gaming Offenders,
    Sexual Offenders, Explosive Substances Offenders, Arms Offenders,
    Cyber Crime Offenders and White Collar or Financial Offenders
    Act,1986.
           Law and Order – Distinction between disturbance to law and
E   order and disturbance to public order – Held: Every disorder does
    not meet the threshold of a disturbance to public order, unless it
    affects the community at large – Public Order.
          Constitution of India, 1950 – Art.226 – Writ jurisdiction under
    – Scope – Held: While the ordinary procedural hierarchy among
F   courts must be respected, the High Court’s writ jurisdiction u/Art.
    226 extends to protecting the personal liberty of persons who
    demonstrated that the instrumentality of the State was being
    weaponised for using the force of criminal law.
          Constitution of India, 1950 – Art.22 – Object and purpose of
G   – Held: Art.22 of the Constitution was specifically inserted and
    extensively debated in the Constituent Assembly to ensure that the
    exceptional powers of preventive detention do not devolve into a
    draconian and arbitrary exercise of state authority – Preventive
    Detention.

H
  MALLADA K SRI RAM v. THE STATE OF TELANGANA &                               7
                       ORS.

       An order of detention was passed against the detenu under Section      A
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
                                                                              B
Offenders, Sexual Offenders, Explosive Substances Offenders, Arms
Offenders, Cyber Crime Offenders and White Collar or Financial
Offenders Act, 1986.
       It was alleged that the detenu was a ‘white-collar offender’ under
Section 2(x) of the Telangana Act of 1986 whose offence of cheating
gullible job aspirants was causing “large scale fear and panic among the      C
gullible unemployed job aspirants/youth and thus he has been acting in a
manner prejudicial to the maintenance of public order apart from disturbing
the peace, tranquillity and social harmony in the society”. It was further
recorded in the order of detention that the detenu had moved bail
applications in two cases in which he was in judicial custody and that the    D
Magistrate had granted him conditional bail, however, it was apprehended
that he may violate the bail conditions while committing similar offences.
The order of detention was passed nearly seven months after the
registration of the first FIR and about five months after the registration
of the second FIR. The order of detention was challenged before the
High Court in a petition under Article 226 of the Constitution. The High      E
Court dismissed the petition. Hence the present appeal.
      Allowing the appeal, the Court
      HELD:1. The order of detention dated 19th May, 2021 was
passed nearly seven months after the registration of the first FIR            F
and about five months after the registration of the second FIR.
The order of detention is evidently based on stale material and
demonstrates non-application of mind on the part of the detaining
authority to the fact that the conditions which were imposed on
the detenu, while granting bail, were duly fulfilled and there was
no incidence of a further violation. In the counter affidavit filed           G
before the High Court, the detaining authority expressed only
an apprehension that the acts on the basis of which the FIRs
were registered were likely to be repeated in the future, thereby
giving rise to an apprehension of a breach of public order. The
High Court failed to probe the existence of a live and proximate              H
8            SUPREME COURT REPORTS                      [2022] 3 S.C.R.


A   link between the past cases and the need to detain the detenu
    after seven months of registration of the first FIR and nearly five
    months of securing bail. [Para 11][15-B-E]
          2.1. There is a distinction between a disturbance to law
    and order and a disturbance to public order. Every disorder does
B   not meet the threshold of a disturbance to public order, unless it
    affects the community at large. [Para 12][15-E-F]
           2.2. A mere apprehension of a breach of law and order is
    not sufficient to meet the standard of adversely affecting the
    “maintenance of public order”. In this case, the apprehension of
C   a disturbance to public order owing to a crime that was reported
    over seven months prior to the detention order has no basis in
    fact. The apprehension of an adverse impact to public order is a
    mere surmise of the detaining authority, especially when there
    have been no reports of unrest since the detenu was released on
    bail on 8 January 2021 and detained with effect from 26 June
D   2021. The nature of the allegations against the detenu are grave.
    However, the personal liberty of an accused cannot be sacrificed
    on the altar of preventive detention merely because a person is
    implicated in a criminal proceeding. The powers of preventive
    detention are exceptional and even draconian. Tracing their origin
E   to the colonial era, they have been continued with strict
    constitutional safeguards against abuse. Article 22 of the
    Constitution was specifically inserted and extensively debated
    in the Constituent Assembly to ensure that the exceptional
    powers of preventive detention do not devolve into a draconian
    and arbitrary exercise of state authority. The case at hand is a
F   clear example of non-application of mind to material circumstances
    having a bearing on the subjective satisfaction of the detaining
    authority. The two FIRs which were registered against the detenu
    are capable of being dealt by the ordinary course of criminal law.
    [Para 15][19-D-G]
G        3. The liberty of the citizen cannot be left to the lethargy of
    and the delays on the part of the State. In the High Court, the
    respondents have argued that the detenu must move the Advisory
    Board and the writ petition has been filed in a premature fashion.
    However, while the ordinary procedural hierarchy among courts
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  MALLADA K SRI RAM v. THE STATE OF TELANGANA &                     9
                       ORS.

must be respected, the High Court’s writ jurisdiction under         A
Article 226 extends to protecting the personal liberty of persons
who have demonstrated that the instrumentality of the State is
being weaponised for using the force of criminal law. [Para 16]
[20-B-C]
      4. In the last five years, this Court has quashed over five   B
detention orders under the Telangana Act of 1986 for inter alia
incorrectly applying the standard for maintenance of public order
and relying on stale materials while passing the orders of
detention. At least ten detention orders under the Telangana Act
of 1986 have been set aside by the High Court of Telangana in
the last one year itself. These numbers evince a callous exercise   C
of the exceptional power of preventive detention by the detaining
authorities and the respondent-state. The respondents are
directed 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         D
standards. The order of detention passed against the detenu shall
accordingly stand quashed and set aside. [Paras 17, 18][21-A-D]
     Ram Manohar Lohia v. State of Bihar AIR 1966 SC
     740 : [1966] 1 SCR 709 – followed.
     Banka Sneha Sheela v. State of Telangana, (2021) 9             E
     SCC 415; Sama Aruna v. State of Telangana (2018) 12
     SCC 150 : [2017] 4 SCR 52; Arnab Manoranjan
     Goswami v. State of Maharashtra (2021) 2 SCC 427; V
     Shantha v. State of Telangana (2017) 14 SCC 577 and
     Khaja Bilal Ahmed v. State of Telangana (2020) 13 SCC          F
     632 – relied on.
                     Case Law Reference
[1966] 1 SCR 709              followed              Para 12
(2021) 9 SCC 415              relied on             Para 13
                                                                    G
[2017] 4 SCR 52               relied on             Para 14
(2021) 2 SCC 427              relied on             Para 16
(2017) 14 SCC 577             relied on             Para 17
(2020) 13 SCC 632             relied on             Para 17         H
10            SUPREME COURT REPORTS                          [2022] 3 S.C.R.


A         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
     No.561 of 2022.
            From the Judgment and Order dated 25.01.2022 of the High Court
     for the State of Telangana at Hyderabad in Writ Petition No.17120 of
     2021.
B
          A. Sirajudeen Sr. Adv., A.V.S. Raju, Ch. Leela Sarveswar, P.
     Prabhakar, R. Ravi, Somanatha Padhan, Advs. for the Appellant.
           P. Mohith Rao, S. Udaya Kumar Sagar, Advs. for the Respondents.
           The Judgment of the Court was delivered by
C          DR. DHANANJAYA Y CHANDRACHUD, J.
           1. Leave granted.
           2. This appeal arises from a judgment dated 25 January 2022 of a
     Division Bench of the High Court for the State of Telangana dismissing
D    the writ petition seeking a writ of habeas corpus.
            3. The brother1 of the appellant worked as an employee with an
     entity by the name of M/s Ixora Corporate Services2, Banjara Hills,
     Hyderabad. On 13 October 2020, a complaint was lodged on behalf of
     the Company with the SHO, Banjara Hills, alleging that K Mahendar,
     another employee at the Company, had opened a salary account with
E
     the Federal Bank without authorization and in conspiracy with the detenu
     collected an amount of Rs 85 lakhs from 450 job aspirants. It was alleged
     that the co-accused who was in charge of the HR Department at the
     Company had, in collusion with the detenu, hatched a plan to collect
     money from individuals by misrepresenting that they would be given a
F    job at the Company and collected money from aspirants for opening a
     bank account and supplying uniforms.
           4. The first FIR, FIR No 675 of 2020, was registered on 15
     October 2020 at Police Station Banjara Hills against K Mahendar (A-1)
     and the detenu (A-2) for offences punishable under Sections 408, 420,
G    506 and 120B of the Indian Penal Code 18603. On 17 December 2020,
     another FIR, FIR No 343 of 2020, was registered at Police Station
     Chatrinaka against the detenu for offences punishable under Sections
     1
       “detenu”
     2
       “Company”
     3
H      “IPC”
     MALLADA K SRI RAM v. THE STATE OF TELANGANA &                                11
       ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

408, 420 and 120B IPC based on similar allegations at the behest of               A
another informant. The detenu was arrested, in the first case, on 17
December 2020 and, in the second case, on the execution of a PT warrant
on 4 January 2021. In the first case, the detenu was released on bail on
8 January 2021 in terms of an order dated 31 December 2020, subject to
the condition that he shall appear before the SHO, Police Station Banjara
                                                                                  B
Hills on Mondays between 10.30 am and 5 pm till the filing of the charge-
sheet. In the second case, the detenu was released on bail by an order
dated 11 January 2021, subject to the condition that he shall appear before
the SHO, Police Station Chatrinaka on Sundays between 2 pm and 5 pm
for a period of three months. The Court has been apprised of the fact
that the charge-sheet has been submitted in the first case.                       C
      5. An order of detention was passed against the detenu on 19
May 2021 under the provisions of Section 3(2) of the Telangana
Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-
Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers,
Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders,             D
Food Adulteration Offenders, Fake Document Offenders, Scheduled
Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual
Offenders, Explosive Substances Offenders, Arms Offenders, Cyber
Crime Offenders and White Collar or Financial Offenders Act 19864.
The order of detention was challenged before the High Court in a petition
under Article 226 of the Constitution. The Division Bench of the High             E
Court dismissed the petition by its impugned judgment and order dated
25 January 2022.
       6. Mr A Sirajudeen, senior counsel appearing on behalf of the
appellant, submits that there is ex facie, non-application of mind by the
detaining authority while passing the order of detention. Senior counsel          F
submitted that this would be evident from the fact that the detenu had
been granted bail almost five months prior to the order of detention. The
grant of bail was subject to the condition that the detenu would report to
the SHO of the police station concerned, in the first case, until the charge-
sheet was filed and, in the second case, for a period of three months on          G
stipulated days of the week. In the first case, the charge-sheet was
submitted prior to the date of the order of detention on 19 May 2021. On
the above premises, it has been submitted that the very basis of the
order of detention stands vitiated since it will be apparent from the condition
4
    “Telangana Act of 1986"                                                       H
12             SUPREME COURT REPORTS                           [2022] 3 S.C.R.


A    which was imposed by the Court while granting bail that the detenu was
     required to attend the police station concerned throughout the stipulated
     period and even that period came to an end by the time the order of
     detention was passed. Moreover, whereas the order of detention has
     proceeded on the basis that the acts of the detenu had created a situation
     leading to a breach of public order in the case, on the other hand, it is
B
     evident from the counter affidavit which has been filed by the
     Commissioner before the High Court that there was only an apprehension
     that there would be a likelihood of a breach of public order in the future.
     It was further submitted that it is evident from the recording of facts that
     the order of detention was passed nearly seven and five months after
C    both the criminal cases were instituted. The detention was, it is urged,
     based on stale material. It has been argued that the ordinary course of
     criminal law would be sufficient to deal with the alleged violation and on
     the above facts, the detention of the detenu is based on no cogent material
     whatsoever.
D           7. Mr Mohith Rao, counsel appearing on behalf of the respondents,
     has submitted that the nature of the acts which are attributed to the
     detenu are a part of a series of organized activities involving white collar
     crime where job aspirants were allured into parting with their money on
     the promise that they would get employment in the future. Hence, it has
     been urged that the High Court has rightly held that the order of detention
E    should not be interfered with.
            8. At the outset, it is necessary to set out the relevant provisions
     of the Telangana Act of 1986:
           “2. Definitions.—In this Act, unless the context otherwise
F          requires,—
           (a) “acting in any manner prejudicial to the maintenance of
           public order” means when a bootlegger, a dacoit, a drug-offender,
           a goonda, an immoral traffic offender, Land-Grabber, a Spurious
           Seed Offender, an Insecticide Offender, a Fertiliser Offender, a
G          Food Adulteration Offender, a Fake Document Offender, a
           Scheduled Commodities Offender, a Forest Offender, a Gaming
           Offender, a Sexual Offender, an Explosive Substances Offender,
           an Arms Offender, a Cyber Crime Offender and a White Collar
           or Financial Offender is engaged or is making preparations for
           engaging, in any of his activities as such, which affect adversely,
H          or are likely to affect adversely, the maintenance of public order:
MALLADA K SRI RAM v. THE STATE OF TELANGANA &                                  13
  ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

  Explanation.—For the purpose of this clause public order shall be            A
  deemed to have been affected adversely or shall be deemed likely
  to be affected adversely inter alia, if any of the activities of any of
  the persons referred to in this clause directly, or indirectly, is causing
  or calculated to cause any harm, danger or alarm or a feeling of
  insecurity among the general public or any section thereof or a
                                                                               B
  grave widespread danger to life or public health;
  ***
  (x) “White collar offender” or “Financial Offender” means a
  person who commits or abets the commission of offences
  punishable under the Telangana Protection of Depositors of                   C
  Financial Establishment Act, 1999 (Act 17 of 1999) or under
  Sections 406 to 409 or 417 to 420 or under Chapter XVIII of the
  Indian Penal Code, 1860.
  3. Power to make orders detaining certain persons.—(1)
  The Government may, if satisfied with respect to any bootlegger,             D
  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                 E
  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           F
  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                G
  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
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14             SUPREME COURT REPORTS                            [2022] 3 S.C.R.


A          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.
           ***
           13. Maximum period of detention.—The maximum period for
B          which any person may be detained, in pursuance of any detention
           order made under this Act which has been confirmed under Section
           12, shall be twelve months from the date of detention.”
             9. The order of detention dated 19 May 2021 notes that that the
     detenu is a ‘white-collar offender’ under Section 2(x) of the Telangana
C    Act of 1986 whose offence of cheating gullible job aspirants has been
     causing “large scale fear and panic among the gullible unemployed job
     aspirants/youth and thus he has been acting in a manner prejudicial to
     the maintenance of public order apart from disturbing the peace,
     tranquillity and social harmony in the society”. These alleged offences
D    were noted as the grounds for his detention, in addition to the apprehension
     that “he may violate the bail conditions and there is an imminent possibility
     of his committing similar offences, which would be detrimental to public
     order, unless he is prevented from doing so by an appropriate order of
     detention”.

E           10. The detenu was released on bail on 8 January 2021 by the
     Additional Chief Metropolitan Magistrate, Hyderabad subject to the
     condition that he would have to report to the SHO of the Police Station
     concerned on a stipulated day every week till the charge sheet was
     filed. The order granting bail to the detenu in the second case provided
     that the detenu was subject to the condition of appearing once every
F    week on Sunday before the Police Station concerned for a period of
     three months with effect from 11 January 2021. As a consequence, the
     conditions attached to the orders granting bail stood worked out in the
     month of April 2021. The order of detention dated 19 May 2021 has
     failed to advert to these material aspects and suffers from a non-
G    application of mind. The basis on which the preventive detention of the
     detenu has been invoked is that the detenu has cheated aspirants for
     jobs on the basis of fake documents and that, as a consequence, 450
     aspirants were duped, from whom an amount of Rs 85 lakhs had been
     collected. The order of detention records that the detenu had moved bail
     applications in two cases in which he was in judicial custody and that the
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     MALLADA K SRI RAM v. THE STATE OF TELANGANA &                              15
       ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

Magistrate had granted him conditional bail. It was apprehended that he         A
may violate the bail conditions while committing similar offences. It is
pertinent to note that no application for cancellation of bail was moved
by the investigating authorities for violation of the bail conditions.
       11. At this stage, it would also be material to note that the first
case was registered on 15 October 2020, while the second case was               B
registered on 17 December 2020. Bail was granted on 8 January 2021.
The order of detention was passed on 19 May 2021 and was executed
on 26 June 2021. The order of detention was passed nearly seven months
after the registration of the first FIR and about five months after the
registration of the second FIR. The order of detention is evidently based
on stale material and demonstrates non-application of mind on the part          C
of the detaining authority to the fact that the conditions which were
imposed on the detenu, while granting bail, were duly fulfilled and there
was no incidence of a further violation. In the counter affidavit which
was filed before the High Court, the detaining authority expressed only
an apprehension that the acts on the basis of which the FIRs were               D
registered were likely to be repeated in the future, thereby giving rise to
an apprehension of a breach of public order. The High Court has failed
to probe the existence of a live and proximate link between the past
cases and the need to detain the detenu after seven months of registration
of the first FIR and nearly five months of securing bail.
                                                                                E
       12. The distinction between a disturbance to law and order and a
disturbance to public order has been clearly settled by a Constitution
Bench in Ram Manohar Lohia v. State of Bihar5. The Court has held
that every disorder does not meet the threshold of a disturbance to public
order, unless it affects the community at large. The Constitution Bench
held:                                                                           F

         “51. We have here a case of detention under Rule 30 of the
         Defence of India Rules which permits apprehension and detention
         of a person likely to act in a manner prejudicial to the maintenance
         of public order. It follows that if such a person is not detained
         public disorder is the apprehended result. Disorder is no doubt        G
         prevented by the maintenance of law and order also but disorder
         is a broad spectrum which includes at one end small disturbances
         and at the other the most serious and cataclysmic happenings.

5
    AIR 1966 SC 740                                                             H
16      SUPREME COURT REPORTS                          [2022] 3 S.C.R.


A    Does the expression “public order” take in every kind of
     disorders or only some of them? The answer to this serves
     to distinguish “public order” from “law and order” because
     the latter undoubtedly takes in all of them. Public order if
     disturbed, must lead to public disorder. Every breach of
     the peace does not lead to public disorder. When two
B
     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
C    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 if 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
D
     thus not necessarily sufficient for action under the Defence
     of India Act but disturbances which subvert the public order are.
     A District Magistrate is entitled to take action under Rule 30(1)(b)
     to prevent subversion of public order but not in aid of maintenance
     of law and order under ordinary circumstances.
E    52. 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
F    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. By using the expression
G    “maintenance of law and order” the District Magistrate was
     widening his own field of action and was adding a clause to the
     Defence of India Rules.”
                                                 (emphasis supplied)

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     MALLADA K SRI RAM v. THE STATE OF TELANGANA &                               17
       ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

      13. In Banka Sneha Sheela v. State of Telangana6, a two-                   A
judge Bench of this Court examined a similar factual situation of an
alleged offence of cheating gullible persons as a ground for preventive
detention under the Telangana Act of 1986. The Court held that while
such an apprehension may be a ground for considering the cancellation
of bail to an accused, it cannot meet the standards prescribed for
                                                                                 B
preventive detention unless there is a demonstrable threat to the
maintenance of public order. The Court held:
         “9. …learned counsel appearing on behalf of the petitioner has
         raised three points before us. First and foremost, he said there is
         no proximate or live connection between the acts complained of
         and the date of the detention order, as the last act that was           C
         complained of, which is discernible from the first 3 FIRs (FIRs
         dated 12-12-2019, 12-12-2019 and 14-12-2019), was in December
         2019 whereas the detention order was passed 9 months later on
         28-9-2020. He then argued, without conceding, that at best only a
         “law and order” problem if at all would arise on the facts of these     D
         cases and not a “public order” problem, and referred to certain
         judgments of this Court to buttress the same. He also argued that
         the detention order was totally perverse in that it was passed only
         because anticipatory bail/bail applications were granted. The
         correct course of action would have been for the State to move to
         cancel the bail that has been granted if any further untoward           E
         incident were to take place.
         12. While it cannot seriously be disputed that the detenu may be a
         “white collar offender” as defined under Section 2(x) of the
         Telangana Prevention of Dangerous Activities Act, yet a preventive
         detention order can only be passed if his activities adversely affect   F
         or are likely to adversely affect the maintenance of public order.
         “Public order” is defined in the Explanation to Section 2(a) of the
         Telangana Prevention of Dangerous Activities Act to be a harm,
         danger or alarm or a feeling of insecurity among the general public
         or any section thereof or a grave widespread danger to life or          G
         public health.
         15. There can be no doubt that what is alleged in the five FIRs
         pertain to the realm of “law and order” in that various acts of

6
    (2021) 9 SCC 415                                                             H
18               SUPREME COURT REPORTS                          [2022] 3 S.C.R.


A             cheating are ascribed to the detenu which are punishable under
              the three sections of the Penal Code set out in the five FIRs. 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
B
              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
C             the real ground for detaining the detenu, there can be no doubt
              that the harm, danger or alarm or feeling of insecurity 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.
D             32. On the facts of this case, as has been pointed out by us, it is
              clear that at the highest, a possible apprehension of breach of law
              and order can be said to be made out if it is apprehended that the
              detenu, if set free, will continue to cheat gullible persons. This
              may be a good ground to appeal against the bail orders granted
              and/or to cancel bail but certainly cannot provide the springboard
E             to move under a preventive detention statute. We, therefore, quash
              the detention order on this ground….”
            14. In Sama Aruna v. State of Telangana7, a two-judge Bench
     of this Court examined a case where stale materials were relied upon by
     the detaining authority under the Telangana Act of 1986. The order of
F    detention pertained to incidents which had occurred between nine and
     fourteen years earlier in relation to offences involving a criminal
     conspiracy, cheating, kidnapping and extortion. This Court held that a
     preventive detention order that is passed without examining a live and
     proximate link between the event and the detention is tantamount to
G    punishment without trial. The Court held:
              “17. We are, therefore, satisfied that the aforesaid detention order
              was passed on grounds which are stale and which could not have
              been considered as relevant for arriving at the subjective
              satisfaction that the detenu must be detained. The detention order
     7
H        (2018) 12 SCC 150
  MALLADA K SRI RAM v. THE STATE OF TELANGANA &                               19
    ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

      must be based on a reasonable prognosis of the future behaviour         A
      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
                                                                              B
      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. See G. Reddeiah v. State of A.P.[G.
      Reddeiah v. State of A.P., (2012) 2 SCC 389 : (2012) 1 SCC              C
      (Cri) 881] and P.U. Iqbalv. Union of India [P.U. Iqbal v. Union
      of India, (1992) 1 SCC 434 : 1992 SCC (Cri) 184].”
       15. A mere apprehension of a breach of law and order is not
sufficient to meet the standard of adversely affecting the “maintenance
of public order”. In this case, the apprehension of a disturbance to public   D
order owing to a crime that was reported over seven months prior to the
detention order has no basis in fact. The apprehension of an adverse
impact to public order is a mere surmise of the detaining authority,
especially when there have been no reports of unrest since the detenu
was released on bail on 8 January 2021 and detained with effect from
26 June 2021. The nature of the allegations against the detenu are grave.     E
However, the personal liberty of an accused cannot be sacrificed on the
altar of preventive detention merely because a person is implicated in a
criminal proceeding. The powers of preventive detention are exceptional
and even draconian. Tracing their origin to the colonial era, they have
been continued with strict constitutional safeguards against abuse. Article   F
22 of the Constitution was specifically inserted and extensively debated
in the Constituent Assembly to ensure that the exceptional powers of
preventive detention do not devolve into a draconian and arbitrary
exercise of state authority. The case at hand is a clear example of non-
application of mind to material circumstances having a bearing on the
subjective satisfaction of the detaining authority. The two FIRs which        G
were registered against the detenu are capable of being dealt by the
ordinary course of criminal law.
      16. We also note that after notice was issued by this Court, the
respondents have been served. No counter affidavit has been filed. We
                                                                              H
20                SUPREME COURT REPORTS                           [2022] 3 S.C.R.


A    have declined to allow any further adjournment for filing a counter affidavit
     since a detailed and comprehensive counter affidavit which was filed
     before the High Court is already on the record and the present
     proceedings have been argued on the basis of the material as it stood
     before the High Court. The liberty of the citizen cannot be left to the
B    lethargy of and the delays on the part of the state. Further, in the counter
     affidavit filed before the High Court, the respondents have argued that
     the detenu must move the Advisory Board and the writ petition has been
     filed in a premature fashion. However, in Arnab Manoranjan Goswami
     v. State of Maharashtra8, a two-judge Bench of this Court has held
     that while the ordinary procedural hierarchy among courts must be
C    respected, the High Court’s writ jurisdiction under Article 226 extends
     to protecting the personal liberty of persons who have demonstrated
     that the instrumentality of the State is being weaponised for using the
     force of criminal law:

D             “68. Mr Kapil Sibal, Mr Amit Desai and Mr Chander Uday Singh
              are undoubtedly right in submitting that the procedural hierarchy
              of courts in matters concerning the grant of bail needs to be
              respected. However, there was a failure of the High Court to
              discharge its adjudicatory function at two levels—first in declining
              to evaluate prima facie at the interim stage in a petition for quashing
E             the FIR as to whether an arguable case has been made out, and
              secondly, in declining interim bail, as a consequence of its failure
              to render a prima facie opinion on the first. The High Court did
              have the power to protect the citizen by an interim order in a
              petition invoking Article 226. Where the High Court has failed to
F             do so, this Court would be abdicating its role and functions as a
              constitutional court if it refuses to interfere, despite the parameters
              for such interference being met. The doors of this Court cannot
              be closed to a citizen who is able to establish prima facie that the
              instrumentality of the State is being weaponised for using the force
              of criminal law. Our courts must ensure that they continue to
G
              remain the first line of defence against the deprivation of the liberty
              of citizens. Deprivation of liberty even for a single day is one day
              too many. We must always be mindful of the deeper systemic
              implications of our decisions.”
     8
H        (2021) 2 SCC 427
    MALLADA K SRI RAM v. THE STATE OF TELANGANA &                                 21
      ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]

       17. It is also relevant to note, that in the last five years, this Court   A
has quashed over five detention orders under the Telangana Act of 1986
for inter alia incorrectly applying the standard for maintenance of public
order 9 and relying on stale materials while passing the orders of
detention10. 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
                                                                                  B
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.                                                                 C
      18. We accordingly allow the appeal and set aside the impugned
judgment of the High Court dated 25 January 2022. The order of detention
which has been passed against the detenu on 19 May 2021 shall
accordingly stand quashed and set aside.
       19. Pending application(s), if any, stands disposed of.                    D

Bibhuti Bhushan Bose                                            Appeal allowed.




                                                                                  E




                                                                                  F




                                                                                  G


9
  V Shantha v. State of Telangana, (2017) 14 SCC 577; Banka Sneha Sheela v.
State of Telangana, (2021) 9 SCC 415;
10
   Sama Aruna v. State of Telangana, (2018) 12 SCC 150; Khaja Bilal Ahmed v.
State of Telangana, (2020) 13 SCC 632                                             H