It is most important for all those who don police uniform to always bear in mind what the Apex Court has just as recently as on August 2, 2021 in a latest, learned, laudable and landmark judgment titled Banka Sneha Sheela vs The State of Telangana & Ors. in Criminal Appeal No. 733 of 2021 [arising out of SLP (Criminal) No. 4729 of 2021] laid down in most uncertain terms that a possible apprehension of breach of law and order cannot be a ground to detain a person under Preventive Detention Laws. It must be apprised here that the two Judge Bench of Apex Court headed by Justice RF Nariman observed that mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects law and order but before it can be said to affect ‘public order’, it must affect the community or the public at large. It is truly an extremely commendable judgment and all those who don police uniform must always abide by it in totality.
To start with, Justice RF Nariman who has authored this brief, brilliant, balanced and bold judgment for a Bench of Apex Court comprising of himself and Justice Hrishikesh Roy sets the ball rolling by first and foremost observing in para 2 that, “The present appeal arises out of a judgment dated 31.03.2021, passed by the High Court for the State of Telangana at Hyderabad, by which a Writ Petition filed by the Petitioner challenging a Preventive Detention Order [hereinafter referred to as “Detention Order”] passed against the Petitioner’s husband [hereinafter referred to as “the Detenu”] under Section 3(2) of the Telangana Prevention of Dangerous Activities of Boot-leggers, 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 [hereinafter referred to as “Telangana Prevention of Dangerous Activities Act”] , was dismissed.”
To put things in perspective, the Bench then envisages in para 3 that, “The Detention Order under the provisions of the Telangana Prevention of Dangerous Activities Act is dated 28.09.2020. It refers to five FIRs that have been filed against the Detenu, all the said FIRs being under Sections 420, 406 and 506 of the IPC. The facts contained in the FIRs range from October, 2017 to December, 2019 and are similar. We may set out the facts contained in FIR No.705 of 2019 as a sample of similar FIRs filed against the Detenu as follows [This narration of the FIR is to be found in the Detention Order itself]:
“On 12.12.2019 at 1200 hours a complaint was received from Sri Kommu Naveen Kumar S/o Veeraswamy, aged about 24 years, Occ: Car Mechanic, R/o H.No. 2-32, Yadaran Village, Shamirpet Mandal stating that he has been running a Garage near main road at Muraharipally village for the past one year. One Banka Ravikanth, aged about 35 years used to come to his garage for two to three times in a month for his car servicing. In the month of March, 2019 the said Ravikanth introduced himself as a High Court advocate and he would invest money in newly upcoming companies and insisted the complainant to invest money for 100% return. He also informed that they are three advocates, of them one is CA (Chartered Accountant) and another is CS (Company Secretary) by name Chandramouli, aged about 65 years. On believing his words, he transferred Rs.50,000/- through Phone-pay to his Indian Bank, Shamirpet branch vide A/c No. 6714073306. Again on 28.05.2019 he transferred Rs. 1,00,000/- through Phone-pay as second investment and on 20.06.2019 he deposited Rs. 1,00,000/- from his Indian Bank, Gachibowli Branch account to his account besides giving net cash of Rs. 2,00,000/- by hand. While sending Rs. 1 lakh through phone pay in presence of one Prasad, Banka Ravikanth assured the complainant that in the 2nd investment he would give him Rs. 41,000/- per month throughout the year and he will take Rs. 3,000/- towards his commission. On 12.12.2019 when the complainant asked him to return his money, he threatened with dire consequences. The complainant stated that the said Ravikanth has cheated him by saying that he would get more return. On the strength of the complainant, police registered a case and investigation into.”
Following upon the narration of the 5 FIRs comes this important paragraph:
“Due to above incidents, the complainants, victims and other young aspirants, who want to invest money in stock/share market and derive benefits became scared and feeling insecure. These incidents have also caused loss of faith and trust among investors in stock trading fearing similar cheating towards them by the people like you. They are hesitated to consult any consultancies or persons fearing similar cheating by the unknown persons in the guise of providing good profits. These prejudicial activities have also caused disturbance in the public.””
While elaborating on the modus operandi of the detenu, the Bench then enunciates in para 4 that, “The Detention Order then refers to the ‘Modus Operandi’ of the Detenu as follows:
“You are a native of Karimnagar district. You completed graduation (B.Com) in 2011 and LLB in 2019 and have been doing trading in stock market. You have introduced yourselves to the victims as a High Court Advocate and you have a team consisting of one CA (Chartered Accountant) and CS (Company Secretary) and three advocates. Your CS has an expertise and links in Central and State governments. You have knowledgeable persons in share marketing and used to invest money in upcoming companies which ensure return of 100%. You would lure the innocent public in the guise of providing good profit by investing their money in share marketing. You used to contact your known persons and lure them to invest their money in share market to get good profits assuring the profit 100% within a short period. Further you used to give blank cheques and ask commission from the victims to gain their confidence. As per plan, you collected amount from the victims through Phone-pe which is linked to your bank account and net-banking and in-person. When you received money to your bank account, immediately you had transfer the received amount to your wife’s bank account. When the victims contact you over phone, you first start avoiding them and then diverting their calls and finally cheating them. Later, you changed your residential address in order to conceal your where-abouts from the victims. You have cheated so many people to the tune of more than Rs. 50.00 lakhs in the guise of providing good profit through investment in share market.
You are involved in Cr.No.34/2020 u/s 406, 420 IPC of Malkajgiri Police Station in the limits of Rachakonda Police Commissionerate which referred by way of your antecedent criminal background the same is not relied upon for your detention.””
While elaborating further, the Bench then discloses in para 5 that, “Thereafter, the Detention Order narrates that anticipatory bail/bail has been granted to the Detenu in all the aforesaid FIRs, the last such relief granted being on 10.08.2020. The Detention Order then narrates:
“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.
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Thus you have indulged in the acts of White Collar offences by committing offences such as cheating so many people by collecting more than Rs. 50 lakhs from them through Phone Pay and online banking and sometimes in person in the guise of providing more profit in the limits of Cyberabad Police Commissionerate. Further your acts have been adversely affecting the maintenance of public order and creating feeling of insecurity among young people, thus disturbing peace and tranquillity in the area.
It is imperative to prevent you from acting in any manner prejudicial to the maintenance of public order. I feel that recourse to normal law may not be effective deterrent-in preventing you from indulging in such further activities prejudicial to the maintenance of public order in the area, unless you were detained by invoking the provisions under the “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, (Act No. 01 of 1986)”.””
Going forward, the Bench then mentions in para 6 that, “As a result thereof, the Detenu was preventively detained from the date of the Detention Order itself. A representation dated 31.10.2020 was made by the Petitioner herein to the Commissioner of Police, Cyberabad Commissionerate [Respondent No. 2] which was considered by the Advisory Board, who by its Order 11.11.2020 found that there was sufficient cause to continue the Detention Order. Vide the Order of the State of Telangana dated 17.12.2020, the Detention Order was confirmed and the period of detention was directed to be for a period of one year from 05.10.2020.”
Be it noted, the Bench then observes in para 11 that, “While it cannot seriously be disputed that the Detenu may be a “white collar offender” as defined under Section 2(x) of the Telangana Prevention of Dangerous Activities Act, yet a Preventive Detention Order can only be passed if his activities adversely affect or are likely to adversely affect the maintenance of public order. Public order is defined in the Explanation to Section 2(a) of the Telangana Prevention of Dangerous Activities Act to be a 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.”
It is worth noting that the Bench then makes it clear in para 13 that, “There can be no doubt that for ‘public order’ to be disturbed, there must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects ‘law and order’ but before it can be said to affect ‘public order’, it must affect the community or the public at large.”
Without mincing any words, the Bench then observes in para 14 that, “There can be no doubt that what is alleged in the five FIRs pertain to the realm of ‘law and order’ in that various acts of cheating are ascribed to the Detenu which are punishable under the three sections of the Indian Penal Code set out in the five FIRs. A close reading of the Detention Order would make it clear that the reason for the said Order is not any apprehension of widespread public harm, danger or alarm but is only because the Detenu was successful in obtaining anticipatory bail/bail from the Courts in each of the five FIRs. If a person is granted anticipatory bail/bail wrongly, there are well-known remedies in the ordinary law to take care of the situation. The State can always appeal against the bail order granted and/or apply for cancellation of bail. The mere successful obtaining of anticipatory bail/bail orders being the real ground for detaining the Detenu, there can be no doubt that the harm, danger or alarm or feeling of security among the general public spoken of in Section 2(a) of the Telangana Prevention of Dangerous Activities Act is make believe and totally absent in the facts of the present case.”
Truth be told, the Bench then points out in para 15 that, “At this stage, it is important to advert to the counter affidavit dated 17.07.2021 filed by the State of Telangana. Paragraph 18 of the counter affidavit refers to the granting of bail by Courts in all the five FIRs, which is the real reason for the passing of the Detention Order, as follows:
“18. It is submitted that in the instant case, the decision to detain the detenu herein is based on the perusal of the material on records which revealed that the detenu was granted bail by the Courts concerned in all the five cases relied upon by the detaining authority for preventively detaining him. The Respondent No. 2 herein recorded his satisfaction that the activities of the detenu are prejudicial to the maintenance of public order, and that ordinary law may not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities. Furthermore, the materials relied upon and circumstances show that subjective satisfaction of the detaining authority is not tainted or illegal on any account. Therefore the passing of the detention order is justified considering that the illegal activities of the detenu would disturb the even tempo of life of the community, which makes it prejudicial to the maintenance of the public order and there is imminent possibility of the detenu again indulging in similar prejudicial activities.”
Paragraph 21 of the counter affidavit then states as follows:
“21. It is submitted that in the acts which disturb public tranquillity or are breaches of the peace should not be given a narrow meaning, but should be given a liberal interpretation and the expression ‘in the interest of public order’ is very wide amplitude as held by this Hon’ble Court in Madhu Limaye Versus Sub Division Magistrate reported in AIR 1971 SC 2486. Therefore the Respondent No. 2, before passing the said detention order considered the crucial issues as to whether the activities of the detenu were prejudicial to public and as to whether public order could be affected by only such contravention which affects the community or the public at large.””
Quite significantly, the bench then observes in para 16 that, “The reference to Madhu Limaye v. Sub-Divisional Magistrate (supra) is wholly inapposite. This judgment dealt with the scope of the expression “in the interests of public order” which occurs in Article 19(2) to 19(4) of the Constitution of India. The observations made by this judgment were in the context of a challenge to Section 144 of the Code of Criminal Procedure. Importantly, this Court referred to the judgment in Ram Manohar Lohia (supra) and then opined:
“19. Adopting this test we may say that the State is at the centre and society surrounds it. Disturbances of society go in a broad spectrum from more disturbance of the serenity of life to jeopardy of the State. The acts become graver as we journey from the periphery of the largest circle towards the centre. In this journey we travel first though public tranquillity, then through public order and lastly to the security of the State.
20. In dealing with the phrase “maintenance of public order” in the context of preventive detention, we confined the expression in the relevant Act to what was included in the second circle and left out that which was in the largest circle. But that consideration need not always apply because small local disturbances of the even tempo of life, may in a sense be said to effect “public order” in a different sense, namely, in the sense of a state of law abidingness vis-a-vis the safety of others. In our judgment the expression “in the interest of public order” in the Constitution is capable of taking within itself not only those acts which disturb the security of the State or act within ordre publique as described but also certain acts which disturb public tranquillity or are breaches of the peace. It is not necessary to give the expression a narrow meaning because, as has been observed, the expression “in the interest of public order” is very wide. Whatever may be said of “maintenance of public order” in the context of special laws entailing detention of persons without a trial on the pure subjective determination of the Executive cannot be said in other circumstances. In the former case this Court confined the meaning to graver episodes not involving cases of law and order which are not disturbances of public tranquillity but of ordre publique.””
Even more significantly, the Bench then minces no words to state it quite upfront in para 17 that, “To tear these observations out of context would be fraught with great danger when it comes to the liberty of a citizen under Article 21 of the Constitution of India. The reason for not adopting a narrow meaning of ‘public order’ in that case was because of the expression “in the interests of” which occurs to Article 19(2) to 19(4) and which is pressed into service only when a law is challenged as being unconstitutional for being violative of Article 19 of the Constitution. When a person is preventively detained, it is Article 21 and 22 that are attracted and not Article 19. Further, preventive detention must fall within the four corners of Article 21 read with Article 22 and the statute in question. To therefore argue that a liberal meaning must be given to the expression ‘public order’ in the context of a preventive detention statute is wholly inapposite and incorrect. On the contrary, considering that preventive detention is a necessary evil only to prevent public disorder, the Court must ensure that the facts brought before it directly and inevitably lead to a harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large.”
Simply put, the Bench then reveals in para 23 that, “Shri Gaurav Agrawal and Shri Ranjit Kumar also cited the judgments of this Court in Sama Aruna v. State of Telangana (2018) 12 SCC 150 and Collector & District Magistrate v. Sangala Kondamma (2005) 3 SCC 666 respectively. Since we are not going into other grounds raised by the Petitioner, it is unnecessary to discuss the law laid down in these judgments.”
Finally and far most significantly, the Bench then holds in para 24 that, “On the facts of this case, as has been pointed out by us, it is clear that at the highest, a possible apprehension of breach of law and order can be said to be made out if it is apprehended that the Detenu, if set free, will continue to cheat gullible persons. This may be a good ground to appeal against the bail orders granted and/or to cancel bail but certainly cannot provide the springboard to move under a preventive detention statute. We, therefore, quash the detention order on this ground. Consequently, it is unnecessary to go into any of the other grounds argued by the learned counsel on behalf of the Petitioner. The impugned judgment is set aside and the Detenu is ordered to be freed forthwith. Accordingly, the appeal is allowed.”
No doubt, this extremely commendable, cogent, composed and convincing judgment is a prime example that the men in uniform certainly can’t take the liberty of any accused for granted. It has also made it amply clear that just possible apprehension of breach of law and order cannot be a ground for preventive detention. The act of accused before it can be said to affect ‘public order’ must affect the community or the public at large and mere contravention of law such as cheating or criminal breach of trust cannot be a ground to detain a person under the preventive detention laws which however certainly affects law and order. It merits no reiteration that it is not just the police but even the courts also which must always abide by what has been laid down so elegantly, eloquently and effectively by the Apex Court in this notable case!