Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Rashid Ali Dar, J., allowed a petition filed against the order of respondent authorities, whereby petitioner was taken into preventive custody and lodged in Central Jail, Kotebhalwal, Jammu.

The main issue that arose before the Court was whether an order of preventive detention can be passed while the accused is already in police custody.

The Court observed that as per the judgment of Sama Aruna v. State of Telangana, (2018) 12 SCC 150, it is a settled proposition of law that a person cannot be taken into preventive detention while he is already in police custody. In that case, the Supreme Court had held that an order of preventive detention cannot be passed against an accused while considering a stale incident which took place a long time ago. The Court further observed that it was incumbent on the part of the person, who did the exercise of handing over the documents and conveying the contents thereof to the detenu, to file an affidavit in order to attach a semblance of fairness to his actions.

The Court held that the respondents in the instant matter had placed the petitioner under preventive detention while he was already in police custody; this action on the part of respondents is unjustified. Further, the respondents did not even supply the material to the petitioner, which formed the basis of the order of preventive detention. Resultantly, the petition was allowed and the order of preventive detention was quashed.[Farooq Ahmad Bhat v. State of J&K,2018 SCC OnLine J&K 924, order dated 01-12-2018]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Rashid Ali Dar, J., allowed a petition filed against the order of District Magistrate, Anantnag, under Section 8 of the J&K Public Safety Act, whereby the petitioner was placed under preventive detention.

The main issue that arose before the Court was whether the order passed by the detaining authority was good in law.

The Court observed that even though the petitioner was granted bail in the concerned criminal case, he was not released, rather he was taken into custody vide the impugned detention order. In the detention order there is no mention of bail which was granted to the petitioner and hence it can be fairly concluded that there was non-application of mind on the part of detaining authorities. The Court further observed that the materials which formed the basis of detention order were not supplied to the petitioner. The Court then referred to the Supreme Court judgment of Thahira Haris v. Government of Karnataka, (2009) 11 SCC 438, wherein it was held that in cases where documents forming ground for detention are not supplied to the detenue, the order of detention becomes illegal.

The Court held that the order of detention passed by the detaining authorities was illegal since there was non-application of mind while passing the order and the materials that formed the very basis of such an order were not supplied to the petitioner. Non-supply of materials rendered the petitioner helpless in filing an appropriate representation against such an order and it also violated the fundamental right of petitioner guaranteed to him under Article 22(5) and (6) of the Constitution of India. Resultantly, the order of detention was quashed and the petition was allowed. [Subeel Javid v. State of J&K,2018 SCC OnLine J&K 758, order dated 23-10-2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: In the judgment delivered by the Bench of Tashi Rabstan, J., in the appeal against the order of District Magistratre, Baramulla, the Court allowed the petition and quashed the detention order against the detenu. The appellant was implicated in case FIR No. 266/2016 but was later granted bail. The detenu in compliance with the bail condition went to the police station when called again, where he was detained in case FIR No. 259/2016 and put in jail by the impugned detention order. Both the FIR’s related to detenu being responsible for organising anti-government protests and instigating the youth in Baramulla. He was also categorically said to be involved in voluntary stone pelting incidents in various areas of Baramulla.

The Court held that Article 22(3)(b) of the Constitution of India is only an exception to Article 21, further observing that fundamental rights are meant to protect the civil liberties of people and to prevent the misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and complied along with procedural safeguards, which is mandatory and vital. The respondents have not tendered explanation whatsoever as to why the order of detention has been issued after such a long delay of more than ten months from the date of the alleged criminal activity, which has been made edifice for satisfaction to pass the impugned order of detention and during the period of delay no fresh activity has been attributed to the detenu. The unexplained delay has snapped proximity of the detention order with the time its alleged requirement arose and also the detaining authority has not given any explanation for the delay in passing the impugned order of detention.

The Court relying on V. Shantha v. State of Telangana2017 SCC OnLine SC 623 held that preventive detention cannot be resorted to when sufficient remedies are available under the general laws of the land for any omission or commission under such laws and to classify the detenu as a notorious stone pelter it is not sufficient to invoke statutory powers of preventive detention. [Ishfaq Ahmad Kumar v. State of J.K.,  2017 SCC OnLine J&K 724, decided on 29.11.2017]

Case BriefsHigh Courts

Allahabad High Court: The High Court dismissed a habeas corpus petition brought before it in a case of cow slaughter in front of a temple. The apprehension of disturbance of public order due to hurting of religious sentiments led to the arrest of the petitioner.

The Sub-Inspector of the area received information that the petitioner, along with a group of people, is slaughtering a cow or its progeny near a temple. On apprehension of communal riots, the police arrested three persons including the petitioner. The FIR was lodged under Sections 147, 148, 149 and 307 IPC and the order of detention was passed under Section 3(2) of the National Security Act.

It was stated by the Court that the question of application of mind in the detention order is to be decided by comparison of detention of detention order with the dossier of the sponsoring body. The various changes in the order at multiple places indicate application of mind. Regarding the question of discriminatory approach of the authority it has been stated that there is no parity amongst all the accused and detention depends on the satisfaction of subjective matter by the authority. These are individual cases and parity or lack thereof is not a determining factor to claim discrimination. The final question in the case was whether the act affected public order or law and order. It was conclusively determined that when the cow was slaughtered in a public place and in full public view, it leads to hurting of religious sentiments and incites communal tension. Hence it cannot be treated as a case of law and order only but also that of public order.

The Court further observed that the purpose of preventive detention is not to punish but to prevent. The main aim of this is to protect the public and the society at large and prevent the person from committing a crime which would disrupt public life. On all these grounds the petition was dismissed. [Wasi thru. Mohd. Rafi v. State of U.P., 2017 SCC OnLine All 1880, decided on 03.07.2017]


Case BriefsHigh Courts

High Court of Andhra Pradesh and Telangana: The detention of one Chirraboina Krishna Yadav under the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 was questioned by his wife in a writ petition before a Division Bench comprising of C.V. Nagarjuna Reddy and J. Uma Devi, JJ. The writ petition was allowed and the detention order was quashed.

The contention of the respondent State was that the detenu had been involved in as many as 26 offences between 1989 and 2012; externed from Hyderabad for six months; and detained for a period of one year. However, he had been accused of five more offences since his release and in order to protect the family of one of the complainants in the two criminal cases that the respondents relied on and also to maintain public order, it was necessary to detain the detenu.

Accepting the arguments forwarded by the petitioner, the Court relying on a plethora of landmark judgments of the Supreme Court and on various decisions of High Courts, discussed the difference between ‘law and order’ and ‘public order’. Since the accusations against the detenu centred on only one family and did not involve the public at large, the concern was regarding disturbing law and order and not public order.

It was held that “preventive detention of a person is an extreme measure resorted to by the State when ordinary criminal law is found not adequate to control his activities which cause disturbance to public order.” The Court also noted that the prosecution had failed to show as to out of the 31 cases the detenu had been accused in, how many resulted in a conviction and in how many he was acquitted. The Court also observed that the law enforcement, investigation and prosecution agencies needed to “overhaul the whole criminal law enforcement system by plugging the huge gaping holes.” [C. Neela v. State of Telangana, 2017 SCC OnLine Hyd 224, decided on  27.06.2017]

Case BriefsSupreme Court

Supreme Court: In the case where the detenu was detained under the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 for selling the spurious seeds to poor farmers and acquiring illegal gains at their expense his illegal activities, the Court said that classifying 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 appellant, the detenu’s wife, had contended 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 order of preventive detention mentioned that the illegal activities of the detenu were causing danger to poor and small farmers and their safety and financial well-being and that 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 provisions of the preventive detention Act as an extreme measure to insulate the society from his evil deeds.

Setting aside the abovementioned order, the bench of L. Nageswara Rao and Navin Sinha, JJ said that the rhetorical incantation of the words “goonda” or “prejudicial to maintenance of public order” under the Act cannot be sufficient justification to invoke the draconian powers of preventive detention. The grounds of detention are ex-facie extraneous to the Act. The Court, however, clarified that there will not be any prejudice to the prosecution of the detenu under the ordinary laws of the land. [V. Shantha v. State of Telangana, 2017 SCC OnLine SC 623, decided on 24.05.2017]