SC: Preventive detention only if detenu affects or likely to affect public order

New Delhi: The Supreme Court on Monday said a preventive detention order can only be passed if the activities of the detenu affects or are likely to adversely affect the maintenance of public order.

The court said this as it quashed the Telangana government's detention order against a man, booked in several criminal cases related to fraud and forgery, saying that for 'public order' to be disturbed, "there must in turn be public disorder", affecting the society at large.

A close reading of the detention order, under the Telangana Prevention of Dangerous Activities Act (TPDAA), makes it clear that it was issued not on any apprehension of widespread public harm, danger or alarm but only because the detenu was successful in obtaining anticipatory bail/bail from the Courts in each of the five FIRs against him, the apex court said.

A bench of Justices R F Nariman and B R Gavai allowed the appeal against the Telangana High Court order dismissing the plea filed by a woman challenging the detention order passed against her husband under the TPDAA.

It said that while it cannot seriously be disputed that the detenu may be a white collar offender as defined under provisions of TPDAA, 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.

The bench noted that a public order as defined under the Act is 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.

Multiple FIRs were lodged against the woman's husband for cheating, fraud and criminal breach of trust but he had been successful in getting anticipatory bail/bail in all the cases against him.

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, the bench said. It said that in the facts of this case, 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.

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 .

It said that this may be a good ground for the state 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 .

The bench, while referring to earlier verdicts of the court in Madhu Limaye case of 1970, on the interpretation of public order' said 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.

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, it added.

The top court said that 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, it added.