Personal liberty of accused cannot be sacrificed at the altar of preventive detention, says SC

New Delhi: 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 Supreme Court has said as it quashed a Telangana government detention order against a man for allegedly duping hundreds of job aspirants. The top court said that 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”. A bench of Justices DY Chandrachud and Surya Kant accepted that the nature of the allegations against the detenu is grave, but observed that the detention order was passed under the Telangana Act of 1986 “without any application of mind”. “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,” the bench said. The order of detention was challenged before the High Court which dismissed the petition on 25 January, 2022. In its recent order, the bench said, “The nature of the allegations against the detenu is 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.” It said that 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 adverse impact to public order is a mere surmise of the detaining authority, especially when there have been no reports of unrest since the detenu was released on bail on 8 January, 2021 and detained with effect from 26 June, 2021,” the bench said. The top court said the powers of preventive detention are exceptional and even draconian, tracing their origin to the colonial era. They have been continued with strict constitutional safeguards against abuse, it said. “Article 22 of the Constitution was specifically inserted and extensively debated in the Constituent Assembly to ensure that the exceptional powers of preventive detention do not devolve into a draconian and arbitrary exercise of state authority,” it said. “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 two FIRs which were registered against the detenu are capable of being dealt by the ordinary course of criminal law,” the bench said. The top court said that after the notice was issued by this Court, the state government has been served but no counter affidavit has been filed and it had declined to allow any further adjournment for filing a counter affidavit since a detailed and a comprehensive counter affidavit which was filed before the High Court was already on the record. “The liberty of the citizen cannot be left to the lethargy of and the delays on the part of the state,” the bench said, adding that before the high court the state government has said that the detenu must move the Advisory Board and the writ petition has been filed in a premature fashion. The top court also noted that in the last five years, this court has quashed over five detention orders under the Telangana Act of 1986 for, among other things, incorrectly applying the standard for maintenance of public order and relying on stale materials while passing the orders of detention. It said that at least 10 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,” the bench said. Referring to the 1966 case of Ram Manohar Lohia versus State of Bihar, the bench said that the distinction between a disturbance to law and order and a disturbance to public order has been clearly settled by a Constitution Bench in that case and it was held that every disorder does not meet the threshold of a disturbance to public order, unless it affects the community at large. The brother of the appellant Mallada K Sri Ram worked as an employee with an entity by the name of M/s IxoraCorporate Services, Banjara Hills, Hyderabad. On 13 October, 2020, a complaint was lodged on behalf of the Company with the SHO, Banjara Hills, alleging that K Mahendar, another employee at the Company, had opened a salary account with the Federal Bank without authorisation 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 opening a bank account and supplying uniforms. An order of detention was passed against the detenu on May 19, 2021 under the provisions of Section 3(2) of the Telangana Act of 1986 after he was granted bail in cases lodged against him. 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