1. Challenge to preventive detention under the Telangana Prevention of Dangerous Activities Act, 1986, involving allegations of selling spurious seeds. (Para 2 , 12 )
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2017 Supreme(SC) 568
SUPREME COURT OF INDIA
L. NAGESWARA RAO, NAVIN SINHA, JJ.
V. Shantha – Appellant
Versus
State of Telangana & Ors. – Respondents
Criminal Appeal No. 965 of 2017 (Arising out of SLP(Crl.) No. 3651 of 2017)
Decided On : 24-05-2017
Important Points
IMPORTANT POINT
Preventive detention is a serious matter, affecting the life and liberty of the citizen under Articles 14, 19, 21 and 22 of the Constitution.
Preventive detention is a serious matter, affecting the life and liberty of the citizen under Articles 14, 19, 21 and 22 of the Constitution.
Subject
Preventive Detention - Abuse of Power
Act Referred
ANDHRA PRADESH PREVENTION OF DANGEROUS ACTIVITIES OF BOOT LEGGERS, DACOITS, DRUG OFFENDERS, GOONDAS IMMORAL TRAFFIC OFFENDERS AND LAND GRABBERS ACT: S.3(1), S.2(a), S.9, S.21
ANDHRA PRADESH PROHIBITION ACT: S.8(c), S.7(a)
CONSTITUTION OF INDIA: Art.14, Art.19, Art.21, Art.22
INDIAN PENAL CODE: Ch.13, S.420, S.120(b), S.34
ANDHRA PRADESH PROHIBITION ACT: S.8(c), S.7(a)
CONSTITUTION OF INDIA: Art.14, Art.19, Art.21, Art.22
INDIAN PENAL CODE: Ch.13, S.420, S.120(b), S.34
Headnote
Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 – Section 3(1) and (2) read with section 2 (a) and (b) – Preventive detention is a serious matter, affecting the life and liberty of the citizen under Articles 14, 19, 21 and 22 of the Constitution – Rhetorical incantation of the words “goonda” or “prejudicial to maintenance of public order” – Not sufficient justification to invoke provisions of the Act – Grounds of detention held extraneous to the Act. (Para 11, 13)
(2011) 5 SCC 244; (2012) 2 SCC 386 – Relied upon
Facts of the case:
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, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (Act No.1 of 1986) (Telangana Adaptation) Order, 2015, (G.O.Ms.No.124, Dated17.03.2015).
Finding of the Court:
The detention cannot be sustained.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Whether preventive detention is permissible when ordinary laws provide sufficient remedies and the detenu is already in custody for the alleged offences. (Para 3 , 4 , 5 )
3. Classifying a person as a goonda for selling spurious seeds is a gross abuse of power, as the grounds are extraneous to the Act. (Para 11 , 12 , 13 )
4. Preventive detention cannot substitute ordinary law or be used to bypass the normal functions of investigating crimes. (Para 11 , 15 )
5. Appeal allowed; preventive detention order set aside; detenu ordered to be set at liberty. (Para 17 )
6. When is the exercise of power for preventive detention considered a colourable exercise of power?
It is vitiated as a colourable exercise of power if the statutory power is misused for collateral purposes, based on grounds beyond the statute, or takes into consideration extraneous or irrelevant materials. (Para 11 )
7. Can preventive detention be used as a substitute for ordinary criminal law?
No, preventive detention cannot be a substitute for ordinary law and cannot be used to absolve investigating authorities of their normal functions of investigating crimes. (Para 15 )
8. Does the rhetorical use of terms like goonda or public order justify a preventive detention order?
No, the rhetorical incantation of such words is insufficient justification to invoke draconian powers; the detention must be based on grounds within the statute and not be an abuse of power. (Para 13 )
JUDGMENT :
Navin Sinha, J.
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, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (Act No.1 of 1986) (Telangana Adaptation) Order, 2015, (G.O.Ms.No.124, Dated17.03.2015) (hereinafter referred to as the 'Act').
3. Ms. Prerna Singh, learned counsel for the appellant, submits 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 under 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 Rekha vs. State of Tamil Nadu & Anr., (2011) 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 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 that the grounds of detention cannot be seen simpliciter as individual wrongs amenable to ordinary laws. It has the potential to disturb maintenance of public order. More than one 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 section 2 (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.
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 drug-offender, a goonda, an immoral traffic offender or a land-grabber is engaged 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 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”.
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 XXII of the Indian Penal Code.
10. 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.
11. 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 t
