HIGHLIGHTS

Preventive Detention is not to be exercised routinely Law of preventive Detention hits hard on the liberty of an individual.

Preventive detention differs from ordinary or Punitive detention both in respect of its purpose and its justification. To quote the words of Lord Finley in the case of R vs. Halliday 1917 “it is not Punitive but Precautionary measure”. Both centre and state government are free to have preventive detention Laws but the ambit of the centre is larger than that of the state as the centre have preventive detention laws for subjects connected with defence, foreign affairs, and security of India by Entry9 of List-1, in addition to the security of a state and maintenance of public order or of supplies and services essential to the community provided in Entry 3 of List –III. Supreme court once again underlines the distinction between the invocation of preventive detention for law-and-order situations and public order situations. Preventive detention is justifiable when there is a public order situation in the absence of such the detention would be bad and in violation of Article 21&22 of the constitution as it intrudes upon the liberty of an individual.

On 25th March 2022, the Writ of habeas corpus which was filled by the petitioner in the Telangana High court has been dismissed and the same was challenged by the petitioner's wife to the apex court as SHAIK NAZEEN vs. THE STATE OF TELANGANA & ORS. The Appeal was considered for hearing by the bench of Justices C.T. Ravikumar and Sudhanshu Dhulia against the order of the Telangana High court.

The fact of the case was- On 28th October 2021, Preventive detention order was passed by the commissioner of police against the husband on the ground that detenu was involved in the offence of Robbery (gold chain snatching offences) where mostly the victim is women. He snatches almost 36 gold chains. He was involved in the offence in the states of Andhra Pradesh and Telangana since 2020. According to the reports of the authority, the apex court recorded that detenu was involved in more than 30 cases but mainly 4 cases of chain snatching were considered as a ground for detention as other cases were out of the jurisdiction of the authority. The bench considered the fact and noted that the Four cases were committed by the detenu within the jurisdiction of one police station between 06.05.202 to 26.07.2021. In all 4 cases, the detenu moved to seek bail before the concerned metropolitan magistrate and was granted bail under section 167Cr.P.C, (default bail).

The offender was released on 16.10.2021. Further, an order was later passed on 28.10.2021 for the detention which was confirmed by the Advisory council subsequently. The detenu was under detention since an order was passed. Under a lengthy statute of Preventive detention, the power has been exercised by the authority to prevent the detenu from acting in a manner which is against the maintenance of public order. The reason specified by the authority for invoking provisions of the detention law is detenu has been granted bail in all 4 cases even then he is involved in the same crime. The provision of the Preventive detention law through which the detune has been detained appears clearly that the maintenance of public order is essential requisite and until and unless the government is justified that the act of the offender is prejudicial to it the preventive detention could not be invoked and would be in violation of article 21 and 22 which comes within the fundamental rights of our constitution. The Bench considered that in the present case bail was granted to the offender due to the inability of the prosecution which didn’t complete its investigation in time. The charge sheet was not filled out by the police within the stipulated period of 60 days. The trial court also didn’t lay down any terms and conditions while granting bail, bail under such circumstances and facts is not liable to be granted thus the wrong presentation of the case.

The bench declared that State is not without a remedy in any case, where a case is such that detenu is much threat to society then the prosecution should seek for cancellation of his bail and move an appeal to the Higher court. But taking shelter under preventive detention law is not the proper remedy. In the point of distinction between public order and Law and order, the court referred to the case of Ram Manohar Lohia vs the State of Bihar. The bench allowed the appeal and set aside the order of the divisional bench of the High court by stating that the invocation of preventive detention is unjustified, the powers to be exercised under the law of preventive detention are exceptional which have been given to the executive for execution in exceptional situations only not on a mere breach of law and order as it hardly strikes on the liberty of an individual and cannot be exercised routinely.