V. SHANTHAversusSTATE OF TELANGANA AND ORS.

                            [2017] 4 S.C.R. 358


A                             V. SHANTHA
                                    v.
                  STATE OF TELANGANA AND ORS.
                    (Criminal Appeal No. 965 of 2017)
B                             MAY24,2017
           [L. NAGESWARA RAO AND NAVIN SINHA, JJ.)
          Telangana Prevention of Dangerous Activities of Bootleggers,
  Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and
         Grabbers Act, 1986 - ss. 3(1) and (2) r!w s. 2 (a) and (b) -
c Land
  Order of Preventive detention under - Sustainability of- FIRs
  lodged against distributer of seeds under Penal Code and the Seeds
  Act, 1966 - Allegation that detenue sold spurious chilli seeds which
  did not yield sufficient crops causing wrongful loss to the farmers
  and illegal gains to the accused - Issuance of order of preventive
D detention under the Act - On appeal, held: Sufficient remedies for
  the offence alleged were available and had been invoked also under
  the ordinary laws of the land for the offence alleged -Recourse to
  normal legal procedure would be time consuming, and would not
  be an effective deterrent to prevent the detenu from indulging in
E further prejudicial activities - Rhetorical incantation of the words
   "goonda" or "prejudicial to maintenance of public order" cannot
  be sufficient justification to invoke the powers of preventive
  detention _:To classify the detenu as a "goonda" affecting public
   order, because of inadequate yield from the chilli seed sold by him
  and prevent him from moving for bail even is a gross abuse of the
F statutory power of preventive detention - Grounds of detention are
  ex-facie extraneous to the Act - Thus, the order o.f preventive
  detention is unsustainable and is set aside.
          Allowing the appeal, the Court
G         HELD: 1.1 An order of preventive detention, though based
    on the subjective satisfaction of the detaining au.thority, is
    nonetheless a serious matter, affecting the life and liberty of the
    citizen under Articles 14, 19, 21 and 22 of the Constitution. The
    power being statutory in nature, its exercise has to be within the
    limitations of the statute, and must be exercised for the purpose
H
                                    358
       V. SHANTHA v. STATE OF TELANGANA AND ORS.                      359


the power is conferred. If the power is misused, or abused for        A
collateral purposes, and is based on grounds beyond the statute,
takes into consideration extraneous or irrelevant materials, it
would stand vitiated as being in colourable exercise of power.
[Para 11)(362-A-B]
      1.2 Three FIRs were lodged against the detenu and others        B
under Sections 420, 120-B, 34, IPC and Sections 19, 21 of the
Seeds Act, 1966, alleging selling of spurious chilli seeds. Whether
the seeds were genuine or not, the extent of the yield, are matters
to be investigated in the FIRs. Sufficient remedies for the offence
alleged were, available and had b~en invoked also under the
ordinary laws of the land for the offence alleged. [Para 12][362-     C
C-E)
       1.3 The order of preventive detention passed against the
detenu states that his illegal activities were causing danger to
poor and small farmers and their safety and financial well-being.
Recourse to normal legal procedure would be time consuming, D
and would not be an effective deterrent to prevent the detenu
from indulging in further prejudicial activities in the business of
spurious seeds, affecting maintenance of public order. The
rhetorical incantation of the words "goonda" or "prejudicial to
maintenance of public order" cannot be sufficient justification to E
invoke the draconian powers of preventive detention. To classify
the detenu as a "goonda" affecting public order, because of
inadequate yield from the chilli seed sold by him and prevent him
from moving for bail even is a gross abuse of the statutory power
of preventive detention. The grounds of detention are ex-facie
extr&neous to the Act. Thus, the order of preventive detention F
is held to be unsustainable and is set aside. [Paras 13, 17] [362-
E-H; 363-AJ
       Munagala Yadamma v. State of A.P. (2012) 2 sc.c 386
       : [2012] 1 SCR 26; Rekha v. State of Tamil Nadu &
       Am: (2011) 5 SCC 244 : (2011] 4 SCR 740 - referred             G
       to.
                       Case Law Reference
       [2011] 4 SCR 740       referred to             Para3
       (2012] 1 SCR 26        referred to             Para 14         H
360            SUPREME COURT REPORTS                        [2017] 4 S.C.R.


 A         CRJMINALAPPELLATE JURISDICTION: Criminal Appeal No.
      965of2017.
            From the Judgment and Order dated I 0.04.2017 of the High Court
      of Judicature at Hyderabad for the State ofTelangana and the State of
      Andhra Pradesh in WP No. 3671 of2017.
 B           Ms. Prerna Singh (for Guntur Prabhakar), Advs. for the
      Appellant.
            Ms. Bina Madhavan, Mrityunjai Singh (for S. Udaya Kumar Sagar),
      Advs. for the Respondents.
 c          The Judgment of the Court was delivered by
            NAVIN SINHA, J. I. Leave granted.
         2. The appellant assails the order of preventive detention of her
   husband dated 17.10.2016, passed by Respondent No.2, under the
   Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits,
 D Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers
   Act, 1986 (Act No.I of 1986) (Telangana Adaptation) Order, 2015,
   (G.O.Ms.No.124, Dated! 7.03.2015) (hereinafter referred to as the
   'Act').
          3. Ms. Prerna Singh, learned counsel for the appellant, submits
 E that an order of preventive detention is a serious matter affecting the
   liberty of the citizen. It cannot be resorted to when sufficient remedies
   are available un{ler the ·general laws of the land for any omission or
   commission under such laws. The detenu was already being prosecuted
   under the penal code and the Seeds Act. Reliance was placed on Reklta
 F vs. State of Tamil Nadu & A11r., (201 I) 5 SCC 244.
           4. It was next submitted that the detenu was already in custody in
    two other cases. The order of detention does not consider the same,
    setting out special reasons for an order of preventive detention, with
    regard to a person already in custody. The reasoning that there was .
    every likelihood of his being released on bail, in view of an earlier bail
  G order in a similar case, is flawed, as the detenu has not even filed any
    application for bail in these two cases.
             5. Ms. Bina Madhavan, learned counsel for the respondents,
       opposing the application, submits thatthe grounds of detention cannot be
       seen simpliciter as individual wrongs amenable to ordinary laws. It has
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      V. SHANTHA v. STATE OF TELANGANAAND ORS.                                361
                    [NAVIN SINHA, J.]

the potential to disturb maintenance of public order. More than one           A
farmer had lodged complaints with regard to the spurious seeds sold to
them. Wrongful loss had been caused.to the poor farmers, and the detenu
had acquired illegal gains at their expense.
       6. We have considered the submissions. The order of preventive
detention has been made under section 3 ( 1) and (2) read with sect!on 2      B
(a) and (b) of the Act.
       7. Section 3 of the Act empowers the Government if satisfied,
inter alia, with respect to a "Goonda" to detain such person with the
view to preventing him from acting in any manner prejudicial to the
maintenance of public order.                                                  C
       8. Section 2(a) of the Act defines "acting in any manner prejudicial
to the maintenance of public order" as follows:
      "2(a) "acting in any manner prejudicial to the maintenance of public
      order" means when a bootlegger, a dacoit, a drng-offender, a
      goonda, an immoral traffic offender or a land-grabber is engaged D
      or is making preparations for engaging, in any of his activities as
      such, which affect adversely, or are likely to affect adversely, the
      maintenance of public order:
      Explanation: - For the purpose of this clause public order shall be
      deemed to have been affected adversely, or shall be deemed likely E
      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 grave widespread danger to life or public health".               F
      9. Section 2(g) defines "Goonda" as follows :
      "2(g) "goonda" means a person, who either by himself or as a
      member of or leader of a gang, habitually commits, or attempts to
      commit or abets the commission of offences punishable under
      Chapter XVI or Chapter XVII or Chapter XXll of the Indian G
      Penal Code.
       J0. Section 13 of the Act provides for a maximum period of
detention for twelve months. If the order of preventive detention is
sustainable, the detenu will continue in custody, without the opportunity
to move for bail, till 17 .10.2017.                                       H
362            SUPREME COURT REPORTS                          [2017] 4 S.C.R.


A         1I. An order of preventive detention, though based on the subjective
   satisfaction of the detaining authority, is nonetheless a serious matter,
   affecting the life and liberty of the citizen under Articles 14, 19, 21 and
   22 of the Constitution. The power being statutory in nature, its exercise
   has to be within the limitations of the statute, and must be exercised for
 B the purpose the power is conferred. If the power is misused, or abused
   for collateral purposes, and is based on grounds beyond the statute, takes
   into consideration extraneous or irrelevant materials, it will stand vitiated
   as being in colourable exercise of power.
           12. The detenu was the owner of Laxmi Bhargavi Seeds, District
   distributor of JeevaAggriGenetic Seeds. Three FIRs were lodged against
 c the detenu and others under Sections 420, 120-8, 34, IPC and Sections
   19, 21 of the Seeds Act, 1966. It was alleged that the chilli seeds sold
   were spurious, as they did not yield sufficient crops, thus causing wrongtul
   loss to the farmers, and illegal gains to the accused. Whether the seeds
   were genuine or not, the extent of the yield, are matters to be investigated
 D in the FIRs. Section 19 of the SeedsAct provides for penalty by conviction
   and sentence also. Likewise, Section 20 provides for forfeiture. Sufficient
   remedies for the offence alleged were, therefore, available and had been
    invoked also under the ordinary laws of the land for the offence alleged.
           13. The order of preventive detention passed against the detenu
 E states that his illegal activities were causing danger to poor and small
   farmers and their safety and financial well-being. Recourse to normal
   legal procedure would be time consuming, and would not be an effective
   deterrent to prevent the detenu from indulging in further prejudicial
   activities in the business of spurious seeds, affecting maintenance of
   public order, and that there was no other option except to invoke the
 F
   provisions of the preventive detention Act as an extreme measure to
   insulate the society from his evil deeds. The rhetorical incantation of the
   words "goonda" or "prejudicial to maintenaace of public order" cannot
    be sufficient justification to invoke the draconian powers of preventive
    detention. To classify the detenu as a "goonda" affecting public order,
 G because of inadequate yield from the chilli seed sold by him and prevent
    him from moving for bail even is a gross abuse of the statutory power of
    preventive detention. The grounds of detention are ex-facie extraneous
    to the Act.


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      V. SHANTHA v. STATE OF TELANGANA AND ORS.                                   363
                    [NAVIN SINHA, J.]

      14. The facts in Munagala Yadamma vs. State of A.P., (2012)                 A
2 SCC- 386 under the same Act, were markedly similar as follows:
      "2. In the detention order, the detaining authority indicated that
      the detenu was a bootlegger within the meaning of Section 2(b)
      of the aforesaid Act and that recourse to normal legal procedure
      would involve more time and would not be an effective deterrent             B
      in preventing the detenu from indulging in further prejudicial
      activities. It has been mentioned that the detenu was involved in
      several cases of violation of the provisions of Section 7-A read
      with Section 8(c) of the Andhra Pradesh Prohibition Act, 1995,
      involving illicit distillation ofliquor."
                                                                                  c
      15. After noticing Rekba case (supra) also, it was observed and
concluded as follows:
      "7. Having considered the submissions made on behalf of the
      respective parties, we are unable to accept the submissions made
      on behalf of the State in view of the fact that the decision in D
      Rekha case, in our view, clearly covers the facts of this case as
      well. The offences complained of against the appellant are of a
      nature which can be dealt with under the ordinaiy law of the
      land ..."                           ·
                                    xxxxxxxx                                      E
       9. No doubt, the offences alleged to have been committed by the
       appellant are such as to attract punishment under the Andhra
       Pradesh Prohibition Act, but that in our view has to be done under
       the said laws and taking recourse to preventive detention laws
       would not be warranted. Preventive detention involves detaining
                                                                             F
       of a person without trial in order to prevent him/her from committing
       certain types of offences. But such detention cannot be made a
       substitute for the ordinary law and absolve the investigating
       authorities ofthefr normal functions of investigating crimes which
       the detenu may have committed. After all, preventive detention in
       most cases is for a year only and cannot be used as an instrument G
       to keep a person in perpetual custody without trial. .. "
       16. In view of the aforesaid discussion, it is not necessary to consider
the second submission on behalf of the petitioner with regard to the lack
of justification for an order of preventive detention with regard to a
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364                SUPREME COURT REPORTS                   [2017] 4 S.C.R.


A detenu already in custody.
         17. The appeal is allowed, and the order of preventive detention
  dated 17.10.2016 is held to be unsustainable and is set aside. The detenu
                                                                                 ·-
  is ordered to be set at liberty forthwith unless wanted in any other case.
  This order shall be without prejudice to the prosecution pf the detenu
B under the ordinary laws of the land.


      Nidhi Jain                                               Appeal allowed.