2024 Supreme(SC) 265

SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, CJI., J.B. PARDIWALA, MANOJ MISRA, JJ.
Nenavath Bujji – Appellant
Versus
The State of Telangana and Others – Respondents
Criminal Appeal Nos. 1738-1739 of 2024, Arising Out of SLP (Crl.) Nos. 3390-3391 of 2024
Decided On : 21-03-2024

IMPORTANT POINTS
(1) Preventive detention – Power of preventive detention is qualitatively different from punitive detention – It is not a parallel proceeding.
(2) Inability on part of State’s police machinery to tackle law and order situation should not be an excuse to invoke jurisdiction of preventive detention – Acts similar in nature, but committed in different contexts and circumstances, might cause different reactions.

Headnote:

(A) 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 – Section 3(2) – Preventive detention – Power under any enactment relating to preventive detention has to be exercised with great care, caution and restraint – In order to pass an order of detention under Act 1986 against any person, Detaining Authority must be satisfied that he is a “GOONDA” within meaning of Section 2(g) of Act 1986 – There is no parallel between prosecution in a Court of law and a detention order under Act 1986 – One is a punitive action and other is a preventive act – Power of preventive detention is qualitatively different from punitive detention – It is not a parallel proceeding – It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched – Order of preventive detention, may be made before or during prosecution – Order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal – Pendency of prosecution is no bar to an order of preventive detention – Order of preventive detention is also not a bar to prosecution. (Paras 20, 24 and 25)

(B) Constitution of India – Article 226 – Writ of Habeas Corpus – Habeas corpus is a remedy designed to facilitate release of persons detained unlawfully, not to punish person detaining – It is a remedy against unlawful detention – The writ is a prerogative one obtainable by its own procedure – It is an extraordinary remedy available to a citizen of this Country, which he can enforce under Article 226 or under Article 32 of Constitution of India – Right which is sought to be enforced by such a writ is a fundamental right of a citizen conferred under Article 21 of Constitution of India. (Paras 29 and 30)

(C) 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 – Section 3(2) – Constitution of India – Article 22(4) – Preventive detention – Mere registration of two FIRs for alleged offences of robbery etc. could not have been made basis to invoke provisions of Act 1986 for the purpose of preventively detaining appellant herein on assumption that he is a “GOONDA” as defined under Section 2(g) of Act 1986 – Inability on part of State’s police machinery to tackle law and order situation should not be an excuse to invoke jurisdiction of preventive detention – Acts similar in nature, but committed in different contexts and circumstances, might cause different reactions – It is potentiality of act to disturb even tempo of life of community which makes it prejudicial to maintenance of public order – Habituality of committing offence cannot, in isolation, be taken as a basis of any detention order; rather it has to be tested on matrices of “public order.” – It is only those cases where such habituality has created disturbance of public order that they could qualify as a ground to order detention – In case on hand, State instead of proceeding to pass an order of detention could have approached courts concerned for cancellation of bail on the ground that appellant detenu had continued to indulge in nefarious activities and many more FIRs have been registered against him – Preventive detention being a draconian measure, any order of detention as a result of a capricious or routine exercise of powers must be nipped in the bud – Advisory Board should not just mechanically proceed to approve detention orders but is required to keep in mind mandate contained in Article 22(4) of Constitution of India – Order of detention quashed and set aside. (Paras 31, 32, 40, 41, 43, 59, 62, 63 and 64)

Facts of the case:

Present appeal is at instance of a detenu is directed against judgment and order passed by a Division Bench of High Court for State of Telangana at Hyderabad (Special Original Jurisdiction) dated 16.09.2023 in Writ Petition No. 26941 of 2023 filed by appellant herein by which Division Bench rejected writ petition and thereby declined to interfere with order of preventive detention passed by Commissioner of Police in exercise of his powers under Section 3(2) of Act 1986.

Findings of Court:

Legislature in its wisdom has thought it fit, to entrust Advisory Board and no one else, not even Government, with performance of this crucial and critical function which ultimately culminates into either confirmation or revocation of a detention order. Advisory Board setup under any preventive detention law in order to form its opinion is required to; (i) consider material placed before it; (ii) to call for further information, if deemed necessary; (iii) to hear detenu, if he desires to be heard and (iv) to submit a report in writing as to whether there is sufficient cause for “such detention” or whether detention is justified.

Result : Appeal allowed.