Table of Content:- 

• Background of the case
• Issues raised
• Statutory provisions involved
• Submissions of the Parties
• Judgment Analysis
• Conclusion
• Case Laws:

• Madhu Limaye v. Sub-Divisional Magistrate (1970) 3 SCC 746
• Commissioner of Police v. C. Sunita (2004) 7 SCC 467
• Kalavathi v. State of Tamil Nadu (2006) 6 SCC 14
• Ram Manohar Lohia v. State of Bihar (1966) 1 SCR.
• Frances Coralie Mullin v. W.C. Khambra (1980) 2 SCR 1095
• Vijay Narain Singh v. the State of Bihar (1984) 3 SCC 14
• Rekha v. State of Tamil Nadu (2011) 5 SCC 244
• Haradhan Saha v. The State of West Bengal (1975) 3 SCC 198
• Yumman Ongbi Lembi Leima v. State of Manipur (2012) 2 SCC 176

Banka Sneha Sheela vs State of Telangana [LL 2021 SC 336]

Background of the case

Five F.I.R.s were lodged between October 2017 to December 2019 and all these F.I.R. are similar in nature. It was alleged in the said F.I.R.s that an advocate Ravikant used to come to the complainant’s garage frequently and on one day he told the complainant that he is going to invest some money in the stocks of a company and the complainant agree and make two installments but later when expected returns from the investment he got to know that he had been cheated him.

Telangana High Court passed the following detention order 

“Having regard to your involvement in series of criminal activities such as cheating in the guise of providing good profit by investing their money in stock market and collected huge amounts to the tune of more than Rs. 50 lakhs from them in an organized way and in view of the bail petitions moved by you and granted in the aforesaid cases and later releasing on conditional bail, I am satisfied that free movement of such an offender like you is not safe in the interest of the society as there is an imminent possibility of you indulging in similar prejudicial activities with another set of innocent youth and cheat them on the pretext of providing good profit by investing their money in stock market, which are detrimental to public order, unless you were prevented from doing so by an appropriate order of detention.”

Further, the High Court added that the detainee is indulged in the White Collar Offences by committing offences which is against the public orders. In order to the maintenance of public order in the said area it is important to prevent the detainee advocate under 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 high court relied upon various judgments to passed the detention order in question which includes Madhu Limaye v. Sub-Divisional Magistrate (1970) 3 SCC 746; Commissioner of Police v. C. Sunita (2004) 7 SCC 467; R.Kalavathi v. State of Tamil Nadu (2006) 6 SCC 14.

Issues Raised

Is the detention order passed is in violation of Article 21 of the Constitution?

Statutory Provisions Involved

• Section 2 (a): Explanation of the Telangana Prevention of Dangerous Activities Act, 1986

“- For the purpose of this clause public order shall be 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 grave wide-spread danger to life or public health.”

• Section 3 of the Telangana Prevention of Dangerous Activities Act, 1986

“The Government may, if satisfied with respect to any bootlegger, 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.”

• Section 420 of the Indian Penal Code, 1860

“Whoever cheats and thereby dishonestly induces the person de­ceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

• Section 406 of the Indian Penal Code, 1860

“Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”

• Section 506 of the Indian Penal Code, 1860

“Whoever commits, the offence of criminal intimidation shall be punished with imprison­ment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.—And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprison­ment of either description for a term which may extend to seven years, or with fine, or with both.”

• Article 21 of the Constitution of India

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Submissions of the Parties

The Contentions of the petitioner 

Three points have been raised by the learned counsel Gaurav Aggarwal:-

1. There is no proximate connection between the acts complained of and the detention order.
2. As per the facts and circumstances of this case, there is a problem of ‘law & order” at best and not a ‘public order’ problem and in this context, the petitioner ref3erred to various judgments.
3. The detention order was passed only because anticipatory bail had been granted.

The contention of the Respondent

Learned Counsel Shri Ranjit Kumar appeared on behalf of the State of Telangana submitted that:-

1. Detenu was a habitual fraudster who had created fear amongst the gullible public and therefore, in the public interest in order to prevent him from committing a similar offence in the future it is required to detain him.
2. There is no doubt in saying that the act of the petitioner is against the public order as defined by the Telangana Prevention of Dangerous Activities Act.

Judgment Analysis

The court observed that though it is still a dispute that a Detenu may be a white-collar offender or not but still a detention order can be passed if his activities adversely affect or are likely to adversely affect the maintenance of public order. The court also makes a distinction between ‘law & order’; ‘public order’ and ‘security of the state’ by referring to the judgment of Ram Manohar Lohia v. State of Bihar (1966) 1 SCR.

The court specified that the narrow meaning of ‘public order’ is not taken in this case was because of the expression ‘in the interest of’ under Article 19 (2) to 19 (4) when a law is challenged as unconstitutional for being violative of Article 19 of the constitution and the present detention orders falls under the four walls of Article 21 of the Constitution read with Article 22 of the constitution and therefore a liberal meaning must be given to the term ‘Public Order’ in the context of a preventive detention statute is wholly inapposite and incorrect.

Several judgments were referred to in the context of prevention detention such as Frances Coralie Mullin v. W.C. Khambra (1980) 2 SCR 1095 in which it was held that

“We have no doubt in our minds about the role of the court in cases of preventive detention: it has to be one of eternal vigilance. No freedom is higher than personal freedom and no duty higher than to maintain it unimpaired. The Court’s writ is the ultimate insurance against illegal detention. The Constitution enjoins conformance with the provisions of Article 22 and the Court exacts compliance. Article 22(5) vests in the detenu the right to be provided with an opportunity to make a representation. Here the Law Reports tell a story and teach a lesson. It is that the principal enemy of the detenu and his right to make a representation is neither high-handedness nor mean-mindedness but the casual indifference, the mindless insensibility, the routine and the red tape of the bureaucratic machine.”

Also in Vijay Narain Singh v. State of Bihar (1984) 3 SCC 14 it was held that

“…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.”

Also in Rekha v. State of Tamil Nadu (2011) 5 SCC 244 the court discusses the interplay role of Article 21 and Article 22 of the Constitution of India. This court relied upon the judgment of Yumman Ongbi Lembi Leima v. State of Manipur (2012) 2 SCC 176 it was held that when a preventive detention order would be bad then in such a case bail has been granted.

The court also takes the observation of the Supreme Court in the case of Haradhan Saha v. The State of West Bengal (1975) 3 SCC 198 “No doubt it has been held in the Constitution Bench decision in Haradhan Saha case [(1975) 3 SCC 198 : 1974 SCC (Cri) 816] that even if a person is liable to be tried in a criminal court for commission of a criminal offence, or is actually being so tried, that does not debar the authorities from passing a detention order under a preventive detention law. This observation, to be understood correctly, must, however, be construed in the background of the constitutional scheme in Articles 21 and 22 of the Constitution (which we have already explained). Article 22(3)(b) is only an exception to Article 21 and it is not itself a fundamental right. It is Article 21 which is central to the whole chapter on fundamental rights in our Constitution. The right to liberty means that before sending a person to prison a trial must ordinarily be held giving him an opportunity of placing his defence through his lawyer. It follows that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the ordinary criminal law (the Penal Code or other penal statutes) will not be able to deal with the situation, then, and only then, can the preventive detention law be taken recourse to.”

Conclusion

The court held that though there is possible apprehension of breach of law and order and the Detenu for that purpose need to be detained and it is a good ground to go for appeal against the bail orders but it cannot provide the springboard to move under the preventive detention statute. And thus the court quashed the order of the said detention order in question.

Click here to judgement