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MALLADA K SRI RAM

v.

THE STATE OF TELANGANA & ORS.

(Criminal Appeal No 561 of 2022)

APRIL 04, 2022

[DR. DHANANJAYA Y CHANDRACHUD

AND SURYA KANT, JJ.]

Preventive Detention – Telangana Prevention of Dang erous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offend ers, Food Adulteration Offenders, Fake Document Offenders, Sc heduled Commodities Offenders, Forest Offenders, Gaming Off enders, Sexual Offenders, Explosive Substances Offenders, Arms Offe nders, Cyber Crime Offenders and White Collar or Financial Offenders Act,1986 – s.3(2) and 2(x) – Order of detention u/s.3( 2) – It was alleged that detenu was a ‘white-collar offender’ u /s.2(x) who cheated gullible job aspirants which was prejudicia l to “maintenance of public order “– Detenu had moved bail applications in two cases in which he was in judicial custody and the Ma gistrate had granted him conditional bail, however, as recor ded in the detention order, it was apprehended that he may vio late the bail conditions while committing similar offences – Dete ntion order challenged – Held: Order of detention, on facts, was evide ntly based on stale material and demonstrated non-application of mind o n part of the detaining authority to the fact that the conditions im posed on the detenu, while granting bail, were duly fulfilled a nd there was no incidence of further violation – High Court failed to probe the existence of a live and proximate link between the p ast cases and the need to detain the detenu – Mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the “maintenance of public order” – Appre hension of a disturbance to public order owing to a crime reported over seven months prior to the detention order had no basis in fact – Nature of allegations against the detenu are grave – However, pers onal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal A B C D E F G H 6 SUPREME COURT REPORTS [2022] 3 S.C.R.

proceeding – Clear example of non-application of mind to m aterial circumstances having a bearing on the subjective sa tisfaction of the detaining authority – Detention order accordingly quashed and set aside – Public Order – Constitution of India, 1950 – Art.22.

Preventive Detention – Detention orders under Telangana Act of 1986 – Callous exercise of exceptional powers by detaining authorities and respondent-State – Incorrect application of standard for maintenance of public order and reliance on sta le materials while passing orders of detention – Respondents dir ected to take stock of challenges to detention orders pending before the A dvisory Board, High Court and Supreme Court and evaluate fairness of t he detention orders against lawful standards – Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Dru g-Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offend ers, Food Adulteration Offenders, Fake Document Offenders, Sc heduled Commodities Offenders, Forest Offenders, Gaming Off enders, Sexual Offenders, Explosive Substances Offenders, Arms Offe nders, Cyber Crime Offenders and White Collar or Financial Offenders Act,1986.

Law and Order – Distinction between disturbance to law and order and disturbance to public order – Held: Every disorder do es not meet the threshold of a disturbance to public o rder, unless it affects the community at large – Public Order.

Constitution of India, 1950 – Art.226 – Writ jurisdiction under – Scope – Held: While the ordinary procedural hierar chy among courts must be respected, the High Court’ s writ juris diction u/Art.

226 extends to protecting the personal liberty of p ersons who demonstrated that the instrumentality of the State was being weaponised for using the force of criminal law.

Constitution of India, 1950 – Art.22 – Object and purpose of – Held: Art.22 of the Constitution was specifically inserted and extensively debated in the Constituent Assembly to ens ure that the exceptional powers of preventive detention do not d evolve into a draconian and arbitrary exercise of state authority – Preventive Detention.

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An order of detention was passed against the detenu under Section 3(2) of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, L and Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fert iliser 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 o r Financial Offenders Act, 1986.

It was alleged that the detenu was a ‘white-collar offender’ under Section 2(x) of the Telangana Act of 1986 whose offence of chea ting gullible job aspirants was causing “large scale fear and panic among the gullible unemployed job aspirants/youth and thus he has been acting in a manner prejudicial to the maintenance of public order apart from disturbing the peace, tranquillity and social harmony in the society”. It was further recorded in the order of detention that the detenu ha d moved bail applications in two cases in which he was in judicial custody and that the Magistrate had granted him conditional bail, however, it was apprehended that he may violate the bail conditions while committing similar offences.

The order of detention was passed nearly seven month s after the registration of the first FIR and about five months after the registration of the second FIR. The order of detention was challenged befo re the High Court in a petition under Article 226 of the Constitution. The High Court dismissed the petition. Hence the present appeal.

Allowing the appeal, the Court

HELD:1. The order of detention dated 19 th May, 2021 was passed nearly seven months after the registration of the first FIR and about five months after the registration of the second FIR.

The order of detention is evidently based on stale mater ial and demonstrates non-application of mind on the part of the detaining authority to the fact that the conditions which were impo sed on the detenu, while granting bail, were duly fulfilled and there was no incidence of a further violation. In the counter affid avit filed before the High Court, the detaining authority express ed only an apprehension that the acts on the basis of which the FIRs were registered were likely to be repeated in the futu re, thereby giving rise to an apprehension of a breach of public orde r. The High Court failed to probe the existence of a live and pro ximate MALLADA K SRI RAM v. THE STATE OF TELANGANA & ORS.

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link between the past cases and the need to detain the detenu after seven months of registration of the first FIR and ne arly five months of securing bail. [Para 11][15-B-E] 2.1. There is a distinction between a disturbance t o law and order and a disturbance to public order. Every disorder does not meet the threshold of a disturbance to public order , unless it affects the community at large. [Para 12][15-E-F] 2.2. A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely af fecting the “maintenance of public order”. In this case, the apprehensi on of a disturbance to public order owing to a crime that was r eported over seven months prior to the detention order has no bas is in fact. The apprehension of an adverse impact to public orde r is a mere surmise of the detaining authority, especially when there have been no reports of unrest since the detenu was rel eased on bail on 8 January 2021 and detained with effect from 26 June 2021. The nature of the allegations against the detenu are grave .

However, the personal liberty of an accused cannot be sacrifi ced on the altar of preventive detention merely because a per son is implicated in a criminal proceeding. The powers of pr eventive detention are exceptional and even draconian. Tracing their origin to the colonial era, they have been continued with strict constitutional safeguards against abuse. Article 22 of the Constitution was specifically inserted and extensiv ely debated in the Constituent Assembly to ensure that the exce ptional powers of preventive detention do not devolve into a draconian and arbitrary exercise of state authority. The case at h and is a clear example of non-application of mind to material circumstances having a bearing on the subjective satisfaction of the detaining authority. The two FIRs which were registered against the detenu are capable of being dealt by the ordinary course of crim inal law.

[Para 15][19-D-G]

3. The liberty of the citizen cannot be left to the le thargy of and the delays on the part of the State. In the High Cou rt, the respondents have argued that the detenu must move the Advi sory Board and the writ petition has been filed in a premature fash ion.

However, while the ordinary procedural hierarchy among cou rts A B C D E F G H 9 must be respected, the High Court’s writ jurisdicti on under Article 226 extends to protecting the personal liberty of p ersons who have demonstrated that the instrumentality of the S tate is being weaponised for using the force of criminal law. [Par a 16] [20-B-C] 4. In the last five years, this Court has quashed over f ive detention orders under the Telangana Act of 1986 for inter alia incorrectly applying the standard for maintenance of public order and relying on stale materials while passing the or ders of detention. At least ten detention orders under the T elangana Act of 1986 have been set aside by the High Court of Telangana in the last one year itself. These numbers evince a callous e xercise of the exceptional power of preventive detention by the de taining authorities and the respondent-state. The responden ts are directed to take stock of challenges to detention orders pending before the Advisory Board, High Court and Supreme Court a nd evaluate the fairness of the detention order agains t lawful standards. The order of detention passed against the deten u shall accordingly stand quashed and set aside. [Paras 17, 18][21-A- D] Ram Manohar Lohia v. State of Bihar AIR 1966 SC 740 : [1966] 1 SCR 709 – followed.

Banka Sneha Sheela v. State of Telangana, (2021) 9 SCC 415; Sama Aruna v. State of Telangana (2018) 12 SCC 150 : [2017] 4 SCR 52; Arnab Manoranjan Goswami v. State of Maharashtra (2021) 2 SCC 427; V Shantha v. State of Telangana (2017) 14 SCC 577 and Khaja Bilal Ahmed v. State of Telangana (2020) 13 SCC 632 – relied on.

Case Law Reference

[1966] 1 SCR 709 followed Para 12

(2021) 9 SCC 415 relied on Para 13

[2017] 4 SCR 52 relied on Para 14

(2021) 2 SCC 427 relied on Para 16

(2017) 14 SCC 577 relied on Para 17

(2020) 13 SCC 632 relied on Para 17

MALLADA K SRI RAM v. THE STATE OF TELANGANA & ORS.

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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.561 of 2022.

From the Judgment and Order dated 25.01.2022 of the High Court for the State of Telangana at Hyderabad in Writ Petition No.17 120 of 2021.

A. Sirajudeen Sr. Adv., A.V.S. Raju, Ch. Leela Sarveswar , P.

Prabhakar, R. Ravi, Somanatha Padhan, Advs. for the Appellant.

P . Mohith Rao, S. Udaya Kumar Sagar, Advs. for the Respondents.

The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.

1. Leave granted.

2. This appeal arises from a judgment dated 25 January 2022 of a Division Bench of the High Court for the State of Telangana dismissing the writ petition seeking a writ of habeas corpus.

3. The brother 1 of the appellant worked as an employee with an entity by the name of M/s Ixora Corporate Services 2, Banjara Hills, Hyderabad. On 13 October 2020, a complaint was lodged on behalf of the Company with the SHO, Banjara Hills, alleging that K Ma hendar, another employee at the Company, had opened a salary account wit h the Federal Bank without authorization and in conspiracy with the detenu collected an amount of Rs 85 lakhs from 450 job aspirants. It was alleged that the co-accused who was in charge of the HR Department at the Company had, in collusion with the detenu, hatched a plan to collect money from individuals by misrepresenting that they would be given a job at the Company and collected money from aspirants for open ing a bank account and supplying uniforms.

4. The first FIR, FIR No 675 of 2020, was registered o n 15 October 2020 at Police Station Banjara Hills against K Mahendar (A-1)

and the detenu (A-2) for offences punishable under Sections 408, 420, 506 and 120B of the Indian Penal Code 18603. On 17 December 2020, another FIR, FIR No 343 of 2020, was registered at Police S tation Chatrinaka against the detenu for offences punishable under Sec tions 1 “detenu”

2 “Company”

3 “IPC”

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408, 420 and 120B IPC based on similar allegations at the behest of another informant. The detenu was arrested, in the first cas e, on 17 December 2020 and, in the second case, on the execution of a PT warrant on 4 January 2021. In the first case, the detenu was released on bail on 8 January 2021 in terms of an order dated 31 December 2020, subject to the condition that he shall appear before the SHO, Police Station Banjara Hills on Mondays between 10.30 am and 5 pm till the filing of the charge- sheet. In the second case, the detenu was released on bail by an order dated 11 January 2021, subject to the condition that he shall appear before the SHO, Police Station Chatrinaka on Sundays between 2 pm and 5 pm for a period of three months. The Court has been apprised of th e fact that the charge-sheet has been submitted in the first cas e.

5. An order of detention was passed against the detenu on 19 May 2021 under the provisions of Section 3(2) of th e Telangana Prevention of Dangerous Activities of Bootleggers, Dacoit s, Drug- Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertili ser Offenders, Food Adulteration Offenders, Fake Document Offenders, Schedule d Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offender s, Cyber Crime Offenders and White Collar or Financial Offenders A ct 1986 4.

The order of detention was challenged before the High Court in a petition under Article 226 of the Constitution. The Division Bench of the High Court dismissed the petition by its impugned judgment and order dated 25 January 2022.

6. Mr A Sirajudeen, senior counsel appearing on behalf of the appellant, submits that there is ex facie, non-application of mind by the detaining authority while passing the order of detention. Senior counsel submitted that this would be evident from the fact that the d etenu had been granted bail almost five months prior to the order of detention. The grant of bail was subject to the condition that the detenu would report to the SHO of the police station concerned, in the first case, until the charge- sheet was filed and, in the second case, for a period of three months on stipulated days of the week. In the first case, the charg e-sheet was submitted prior to the date of the order of detention on 19 May 2021. On the above premises, it has been submitted that the very b asis of the order of detention stands vitiated since it will be apparent from the condition 4 “Telangana Act of 1986"

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which was imposed by the Court while granting bail that the detenu was required to attend the police station concerned throughout the stipulated period and even that period came to an end by the time the order of detention was passed. Moreover, whereas the order of detention has proceeded on the basis that the acts of the detenu had created a situation leading to a breach of public order in the case, on the othe r hand, it is evident from the counter affidavit which has been f iled by the Commissioner before the High Court that there was only an apprehension that there would be a likelihood of a breach of public order in the future.

It was further submitted that it is evident from the recording of facts that the order of detention was passed nearly seven and five months af ter both the criminal cases were instituted. The detention was, it is urged, based on stale material. It has been argued that the ordi nary course of criminal law would be sufficient to deal with the alleged violation and on the above facts, the detention of the detenu is based on no cogent material whatsoever.

7. Mr Mohith Rao, counsel appearing on behalf of the respondents, has submitted that the nature of the acts which are attr ibuted to the detenu are a part of a series of organized activities involving white collar crime where job aspirants were allured into parting with their money on the promise that they would get employment in the future. Hence, it has been urged that the High Court has rightly held that the order of detention should not be interfered with.

8. At the outset, it is necessary to set out the relevant provisio ns of the Telangana Act of 1986:

“2. Definitions.— In this Act, unless the context otherwise requires,— (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, Land-Grabber, a Spurious Seed Offender, an Insecticide Offender, a Fertiliser Of fender, a Food Adulteration Offender, a Fake Document Offende r, a Scheduled Commodities Offender, a Forest Offender, a Gaming Offender, a Sexual Offender, an Explosive Substances Offender, an Arms Offender, a Cyber Crime Offender and a White Coll ar or Financial Offender 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:

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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 feeli ng of insecurity among the general public or any section thereof or a grave widespread danger to life or public health;

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(x) “White collar offender ” or “Financial Offender” means a person who commits or abets the commission of offen ces punishable under the Telangana Protection of Deposit ors of Financial Establishment Act, 1999 (Act 17 of 1999) or under Sections 406 to 409 or 417 to 420 or under Chapter XVIII of the Indian Penal Code, 1860.

3. Power to make orders detaining certain persons. —(1)

The Government may, if satisfied with respect to any bootlegger, dacoit, drug-offender, goonda, immoral traffic offender, Land- Grabber, Spurious Seed Offender, Insecticide Offender, Fertilizer Offender, Food Adulteration Offender, Fake Document Offender, Scheduled Commodities Offender, Forest Offender, Gam ing Offender, Sexual Offender, Explosive Substances Offender, Arms Offender, Cyber Crime Offender and White Collar or Financial Offender that with a view to preventing him from acting in any manner prejudicial to the maintenance of public ord er, it is necessary so to do, make an order directing that such pers on be detained.

(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the Government are satisfied that it is necessary so to do, they may, by ord er in writing, direct that during such period as may be specified in the order, such District Magistrate or Commissioner of Polic e may also, if satisfied as provided in sub-section (1), exercise the powers conferred by the said sub-section:

Provided that the period specified in the order made by the Government under this sub-section shall not in the first instance, exceed three months, but the Government may, if satisfied as MALLADA K SRI RAM v. THE STATE OF TELANGANA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.] A B C D E F G H 14 SUPREME COURT REPORTS [2022] 3 S.C.R.

aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.

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13. Maximum period of detention.—The maximum period for which any person may be detained, in pursuance of any detention order made under this Act which has been confirmed under Section 12, shall be twelve months from the date of detention.”

9. The order of detention dated 19 May 2021 notes that that th e detenu is a ‘white-collar offender’ under Section 2(x) of the Telangana Act of 1986 whose offence of cheating gullible job aspirants has been causing “large scale fear and panic among the gullible unemployed job aspirants/youth and thus he has been acting in a manner prejudicial to the maintenance of public order apart from disturbi ng the peace, tranquillity and social harmony in the society”. These alleged offences were noted as the grounds for his detention, in addition to the apprehension that “he may violate the bail conditions and there is an imminent possibility of his committing similar offences, which would be detrimental to public order, unless he is prevented from doing so by an appropriate order of detention”.

10. The detenu was released on bail on 8 January 2021 by the Additional Chief Metropolitan Magistrate, Hyderabad subject to the condition that he would have to report to the SHO of the Police Station concerned on a stipulated day every week till the charge sheet was filed. The order granting bail to the detenu in the second case provided that the detenu was subject to the condition of appearing once ev ery week on Sunday before the Police Station concerned for a per iod of three months with effect from 11 January 2021. As a consequence, the conditions attached to the orders granting bail stood worked out in the month of April 2021. The order of detention dated 19 May 2021 has failed to advert to these material aspects and suffe rs from a non- application of mind. The basis on which the preventive detention of the detenu has been invoked is that the detenu has cheated aspirants for jobs on the basis of fake documents and that, as a consequence , 450 aspirants were duped, from whom an amount of Rs 85 lakhs had been collected. The order of detention records that the detenu had moved bail applications in two cases in which he was in judicial custody and that the A B C D E F G H 15 Magistrate had granted him conditional bail. It was apprehended that he may violate the bail conditions while committing similar offences. It is pertinent to note that no application for cancellation of bail was moved by the investigating authorities for violation of the bail conditions.

11. At this stage, it would also be material to note that the first case was registered on 15 October 2020, while the second case wa s registered on 17 December 2020. Bail was granted on 8 January 2021.

The order of detention was passed on 19 May 2021 and was executed on 26 June 2021. The order of detention was passed nearly seven months after the registration of the first FIR and about five m onths after the registration of the second FIR. The order of detention is evidently based on stale material and demonstrates non-application of mind on the part of the detaining authority to the fact that the conditions w hich were imposed on the detenu, while granting bail, were duly fulfilled and there was no incidence of a further violation. In the counter af fidavit which was filed before the High Court, the detaining authority expressed only an apprehension that the acts on the basis of which the FIRs were registered were likely to be repeated in the future, thereby giving rise to an apprehension of a breach of public order. The High Court has failed to probe the existence of a live and proximate link between the past cases and the need to detain the detenu after seven months of registration of the first FIR and nearly five months of securing bail.

12. The distinction between a disturbance to law and order and a disturbance to public order has been clearly settled by a Constitution Bench in Ram Manohar Lohia v. State of Bihar5. The Court has held that every disorder does not meet the threshold of a disturbance to public order, unless it affects the community at large. The Constitution Bench held:

“51. We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detai ned public disorder is the apprehended result. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings.

5 AIR 1966 SC 740

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Does the expression “public order” take in every kind of disorders or only some of them? The answer to this serves to distinguish “public order” from “law and order” because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every brea ch of the peace does not lead to public disorder. When tw o drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers t o maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public dis order.

Other examples can be imagined. The contravention of law always affects order but before if can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are.

A District Magistrate is entitled to take action under Rule 30(1)(b)

to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.

52. It will thus appear that just as “public order” in t he rulings of this Court (earlier cited) was said to comprehe nd disorders of less gravity than those affecting “securi ty of State”, “law and order” also comprehends disorders of less gravity than those affecting “public order”. One ha s to imagine three concentric circles. Law and order represent s the largest circle within which is the next circle representing public order and the smallest circle represents secur ity of State. It is then easy to see that an act may affect law a nd order but not public order just as an act may affect publi c order but not security of the State. By using the expression “maintenance of law and order” the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules.”

(emphasis supplied )

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13. In Banka Sneha Sheela v. State of Telangana 6, a two- judge Bench of this Court examined a similar factual situa tion of an alleged offence of cheating gullible persons as a ground for preventive detention under the Telangana Act of 1986. The Court held that whil e such an apprehension may be a ground for considering the cancellation of bail to an accused, it cannot meet the standards p rescribed for preventive detention unless there is a demonstrable threat to the maintenance of public order. The Court held:

“9. …learned counsel appearing on behalf of the petitioner has raised three points before us. First and foremost, he said there is no proximate or live connection between the acts complained of and the date of the detention order, as the last act t hat was complained of, which is discernible from the first 3 FIRs (FIRs dated 12-12-2019, 12-12-2019 and 14-12-2019), was in December 2019 whereas the detention order was passed 9 months later on 28-9-2020. He then argued, without conceding, that at best only a “law and order” problem if at all would arise on the facts of these cases and not a “public order” problem, and referred to cer tain judgments of this Court to buttress the same. He also argued that the detention order was totally perverse in that it was passed only because anticipatory bail/bail applications were grant ed. The correct course of action would have been for the State to move to cancel the bail that has been granted if any further untowa rd incident were to take place.

12. 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.

15. There can be no doubt that what is alleged in the five F IRs pertain to the realm of “law and order” in that various a cts of 6 (2021) 9 SCC 415 MALLADA K SRI RAM v. THE STATE OF TELANGANA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.] A B C D E F G H 18 SUPREME COURT REPORTS [2022] 3 S.C.R.

cheating are ascribed to the detenu which are punishable unde r the three sections of the Penal Code set out in the five F IRs. 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 t he 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 aga inst 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 insecurity 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.

32. 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 pers ons. 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….”

14. In Sama Aruna v. State of Telangana7, a two-judge Bench of this Court examined a case where stale materials were relied upon by the detaining authority under the Telangana Act of 1986. The order of detention pertained to incidents which had occurred between nine a nd fourteen years earlier in relation to offences involving a criminal conspiracy, cheating, kidnapping and extortion. This Court held t hat a preventive detention order that is passed without examining a live a nd proximate link between the event and the detention is tanta mount to punishment without trial. The Court held:

“17. We are, therefore, satisfied that the aforesaid detention order was passed on grounds which are stale and which could not have been considered as relevant for arriving at the sub jective satisfaction that the detenu must be detained. The detention order 7 (2018) 12 SCC 150 A B C D E F G H 19 must be based on a reasonable prognosis of the future behaviour of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to deta in him must be taken to have been snapped in this case. A detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, t hough purporting to be an order of preventive detention. The essent ial concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. See G. Reddeiah v. State of A.P. [G.

Reddeiah v. State of A.P ., (2012) 2 SCC 389 : (2012) 1 SCC (Cri) 881] and P .U. Iqbalv. Union of India [P .U. Iqbal v. Union of India, (1992) 1 SCC 434 : 1992 SCC (Cri) 184].”

15. A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the “maintenance of public order”. In this case, the apprehension of a disturbance to public order owing to a crime that was reported over seven months prior to the detention order has no basis in fact. The apprehension of an ad verse impact to public order is a mere surmise of the detaining authority, especially when there have been no reports of unrest since t he detenu was released on bail on 8 January 2021 and detained with effect fr om 26 June 2021. The nature of the allegations against the detenu are grave.

However, the personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding. The powers of preventive detention are exceptional and even draconian. Tracing their origin to the colonial era, they ha ve been continued with strict constitutional safeguards against abuse. Article 22 of the Constitution was specifically inserted and extensively debated in the Constituent Assembly to ensure that the exceptional p owers of preventive detention do not devolve into a draconian a nd arbitrary exercise of state authority. The case at hand is a clear example of non- application of mind to material circumstances having a bearing on the subjective satisfaction of the detaining authority. The tw o FIRs which were registered against the detenu are capable of bein g dealt by the ordinary course of criminal law.

16. We also note that after notice was issued by this Court , the respondents have been served. No counter affidavit has been filed. We MALLADA K SRI RAM v. THE STATE OF TELANGANA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.] A B C D E F G H 20 SUPREME COURT REPORTS [2022] 3 S.C.R.

have declined to allow any further adjournment for filing a counter affidavit since a detailed and comprehensive counter affidavit which was filed before the High Court is already on the record and the present proceedings have been argued on the basis of the material as it stood before the High Court. The liberty of the citizen cannot be left to the lethargy of and the delays on the part of the state. Further, in the counter affidavit filed before the High Court, the respondents have argued that the detenu must move the Advisory Board and the writ petition has been filed in a premature fashion. However, in Arnab Manoranjan Goswami v. State of Maharashtra 8, a two-judge Bench of this Court has held that while the ordinary procedural hierarchy among courts must be respected, the High Court’s writ jurisdiction under Article 226 extends to protecting the personal liberty of persons who have demonstr ated that the instrumentality of the State is being weaponised for using the force of criminal law:

“68. Mr Kapil Sibal, Mr Amit Desai and Mr Chander Uday Singh are undoubtedly right in submitting that the procedural hierarchy of courts in matters concerning the grant of bail needs t o be respected. However, there was a failure of the High Court to discharge its adjudicatory function at two levels—first in declining to evaluate prima facie at the interim stage in a petition for quashing the FIR as to whether an arguable case has been made out, and secondly, in declining interim bail, as a consequence of its failure to render a prima facie opinion on the first. The High Cou rt did have the power to protect the citizen by an interim order i n a petition invoking Article 226. Where the High Court has failed to do so, this Court would be abdicating its role and functions as a constitutional court if it refuses to interfere, despite the parameters for such interference being met. The doors of this Court cann ot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponised for using the force of criminal law. Our courts must ensure that they continue t o remain the first line of defence against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper system ic implications of our decisions.”

8 (2021) 2 SCC 427

A

B

C

D

E

F

G

H

21

17. It is also relevant to note, that in the last five years, this Court has quashed over five detention orders under the Telangana Act of 1986 for inter alia incorrectly applying the standard for maintenance of public order 9 and relying on stale materials while passing the o rders of detention10. At least ten detention orders under the Telangana Act of 1986 have been set aside by the High Court of Telangana in the last one year itself. These numbers evince a callous exercise of the exceptional power of preventive detention by the detaining authorities and the respondent-state. We direct the respondents to take stock of challenges to detention orders pending before the Advisory Board, High Court and Supreme Court and evaluate the fairness of the detention order against lawful standards.

18. We accordingly allow the appeal and set aside the impugned judgment of the High Court dated 25 January 2022. The order of detention which has been passed against the detenu on 19 May 2021 shall accordingly stand quashed and set aside.

19. Pending application(s), if any, stands disposed of.

9 V Shantha v. State of Telangana , (2017) 14 SCC 577; Banka Sneha Sheela v.

State of Telangana, (2021) 9 SCC 415;

10 Sama Aruna v. State of Telangana, (2018) 12 SCC 150; Khaja Bilal Ahmed v.

State of Telangana, (2020) 13 SCC 632

Bibhuti Bhushan Bose Appeal allowed.

MALLADA K SRI RAM v. THE STATE OF TELANGANA & ORS. [DR. DHANANJAYA Y CHANDRACHUD, J.]