Power conferred by "draconian" preventive detention law has to be exercised with extreme care: Telangana High Court

The Telangana High Court recently quashed a preventive detention order passed against a murder accused, noting that prevention detention laws should be exercised scrupulously and with extreme care..The Court also drew a distinction between "public order" and "law and order", noting that the latter is found in all the forms of disorder..A Bench of Justices A Rajasheker Reddy and T Amarnath Goud passed the order while dealing with a petition moved by the wife of a detenue who was charged under the Telangana Prevention of Dangerous Activities Act, 1986. .Quashing the preventive detention order passed by the Commissioner of Police, Cyberabad Police Commissionerate, the Court held,"Power conferred by such preventive detention law has to be exercised with extreme care and scrupulously within the bounds laid down in such a law. Preventive detention involves detaining of a person without trial in order to prevent him from committing certain types of offences as such preventive detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes. When invoking the magical formula of preventive detention the detaining authority is required to consider whether the offences allegedly committed by the detenu can be dealt with within the normal course of criminal justice system or not...".In connection with two crimes registered against him under the Indian Penal Code, the detenu Mohd Ghouse Pasha had moved a bail petition before a lower court, which granted him conditional bail. He was subsequently released from jail on March 7, 2020. Later, he was arrested once again in relation to a different crime. However, for this crime, the lower court rejected his bail application..The detenu was subsequently detained by the authorities under Section 3(1) & (2) read/with Section 2(a) & 2(g) of Telangana Prevention of Dangerous Activities Act. The detention order was passed September 4, 2020 and the same was confirmed on October 31, 2020, with the police stating that he was indulging in acts of goondaism by committing gruesome murder and attempt to murder in an organized manner..Before the High Court, counsel for the petitioner contended that the detention order was passed without proper application of mind by the authorities. It was pressed that the police confirmed the detention on the basis of two offences committed by the detenu in December 2019 and July 2020 under the provisions of Chapter XVI of the IPC.Further, it was argued that these two crimes relate to the offence of murder and attempt to murder, and therefore an order of detention cannot be invoked against the detenu as the crimes pertain to law and order, affecting specific individuals only and not the public at large..It was also contended that preventive detention can be invoked only for activities that affect public order, and that every crime registered under Chapters XVI, XVII or XXII of the Indian Penal Code cannot form the basis of passing detention orders against individuals..On the other hand, the State submitted that the detention order was justified as the detenu had been habitually engaging in goondaism, thereby causing harm, panic and a feeling of insecurity among the innocent general public..During the course of its order, the Court distinguished between public order and law and order, noting,"The law on this point is settled that public order is different from law and order as the latter is found in all the forms disorder. However, public order, if disturbed, will lead to public disorder. Two people fighting on road, creating disorder, but public order is not disturbed as the flow of the society continues and their acts can be dealt with as per the normal laws governing criminal justice system. On the other hand, if two people from different communities or belief, indulge in fight and one of them tries to instigate the hatred on religious lines, the problem though still is of law and order but there is an apprehension that the public will be affected as this might lead to the communal strife if not timely and preventive actions are taken.".Further, the Court acknowledged the fact that the detenu was in jail and that his bail application was already dismissed. The Court said that in such cases, the triple test laid down in Champion R Sangma v. State of Meghalaya should be followed.As per the triple test, a preventive detention can be validly passed:(1) If the authority passing the order is aware of the fact that he is actually in custody.(2) If he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would be all probability indulge in prejudicial activity.(3) If it is felt essential to detain him to prevent him from so doing..Applying this judgment, the Court held,"Though it was contended that the detaining authority was well aware of the full facts and having subjectively satisfied himself that there was a real likelihood of the detenu being enlarged on bail and in anticipation thereof, the order of detention was passed, the detaining authority failed to satisfy the second limb of the triple requirement test as held in by the Hon'ble Supreme Court in Champion R. Sangma...".The Court also noted that similar pleas were earlier filed before the High Court challenging detention orders on the grounds that they fell in the category of ‘law and order’ problem and not in the category of the ‘public order’. In those cases, the High Court held that though the offences were against specific individuals and the offences in the said crimes were gruesome and brutal in nature, the gravity of the offences alone cannot be taken into consideration for passing the order of detention..It thus held,"We find ourselves in agreement with the findings of the judgments in the above mentioned writ petitions. In the circumstances, we are of the view that there were no compelling situations for the detaining authority to invoke the draconian preventive detention law against the detenu.".The Court thus disposed of the petition, directing that the detenu be released from custody if he is not required in connection with any other criminal case..[Read order]