CASE DETAILS v. THE STATE OF TELANGANA & Ors.

Held: It requires no serious debate that preventive detention, conceived as an extraordinary measure by the framers of the Constitution, has been rendered ordinary with its reckless invocation over the years as if it were available for use even in the ordinary course of proceedings – To unchain the shackles of preventive detention, it is important that the safeguards enshrined in the Constitution, particularly under the ‘golden triangle’ formed by Articles 14, 19 and 21, are diligently enforced. [Para 57] LIST OF CITATIONS AND OTHER REFERENCES Haradhan Saha vs. State of West Bengal AIR 1974 SC 2154: [1975] 1 SCR 778; Rameshwar Shaw vs. District Magistrate AIR 1964 SC 334: [1964] SCR 921; Sunil Fulchand Shah vs. Union of India (2000) 3 SCC 409: [2000] 1 SCR 945; Ram Manohar Lohia vs. State of Bihar [1966] 1 SCR 709; Kuso Sah vs. The State of Bihar (1974) 1 SCC 195; Fagu Shaw vs. The State of West Bengal (1974) 4 SCC 152: [1974] 2 SCR 832 – followed. Khudiram Das vs. The State of West Bengal (1975) 2 SCC 81: [1975] 2 SCR 832; Icchu Devi Choraria vs. Union of India (1980) 4 SCC 531: [1981] 1 SCR 640; Sama Aruna vs. State of Telangana (2018) 12 SCC 150: [2017] 4 SCR 52; Khaja Bilal Ahmed vs. State of Telangana (2020) 13 SCC 632: [2019] 18 SCR 1174; Rekha vs. State of Tamil Nadu (2011) 5 SCC 244: [2011] 4 SCR 740; Rajesh Gulati vs. Govt. of NCT of Delhi (2002) 7 SCC 129; Vijay Narain Singh vs. State of Bihar (1984) 3 SCC 14: [1984] 3 SCR 435; Banka Sneha Sheela vs. The State of Telangana (2021) 9 SCC 415; Mallada K Sri Ram vs. State of Telangana 2022 SCC OnLine SC 424; A.K. Roy vs. Union of India (1982) 1 SCC 271: [1982] 2 SCR 272 – relied on. Vijay Kumar vs. Union of India (1988) 2 SCC 57; Pesala Nookaraju vs. The Government of Andhra Pradesh Crl. Appeal No.2304 of 2023, decided on 16 th August, 2023; – distinguished. 964 SUPREME COURT REPORTS [2023] 11 S.C.R. A.K. Gopalan vs. State of Madras AIR 1950 SC 27: [1950] SCR 88; Rustomjee Cawasjee Cooper vs. Union of India AIR 1970 SC 564: [1970] 3 SCR 530; Shibban Lal Saksena vs. State of Uttar Pradesh AIR 1954 SC 179: [1954] SCR 418; Common Cause vs. Union of India (1999) 6 SCC 667: [1999] 3 SCR 1279; Arun Ghosh vs. State of West Bengal (1970) 1 SCC 98: [1970] 3 SCR 288; Shaik Nazneen vs. The State of Telangana Crl. Appeal No.908 of 2022, dated 22nd June 2023; Dattatraya Moreshwar Pangarkar vs. State of Bombay AIR 1952 SC 181: [1952] SCR 612; Bangalore Medical Trust vs. B.S. Muddappa (1991) 4 SCC 54: [1991] 3 SCR 102; Deepak vs. State of Maharashtra 2022 SCC OnLine SC 99; Cherukari Mani vs. Chief Secretary, Government of Andhra Pradesh (2015) 13 SCC 722: [2014] 6 SCR 750 Susannah Sharp vs. Wakefi eld & Ors. [1891] A.C. 173, 179 – referred to. OTHER CASE DETAILS INCLUDING IMPUGNED ORDER AND APPEARANCES CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2706 of 2023. From the Judgment and Order dated 28.06.2023 of the high Court for the State of Telangana at Hyderabad in WP No.9000 of 2023. Appearances: Siddharth Luthra, Sr. Adv., Dr. J. P. Dhanda, Ms. Raj Rani Dhanda, Ms. Suchi Nigam, Ms. Jesal Wahi, Advs. for the Appellant. Siddharth Dave, Sr. Adv., Sriharsha Peechara, Rajiv Kumar Choudhry, Duvvuri Subrahmanya Bhanu, Ms. Pallavi, Ms. Kriti Sinha, Rupraj Banerjee, Advs. for the Respondents. JUDGMENT / ORDER OF THE SUPREME COURT JUDGMENT DIPANKAR DATTA, J. Leave granted. THE JUDGMENT UNDER CHALLENGE

2. Under assail in this appeal is a judgment and order dated 28th June, 2023 of a Division Bench of the High Court for the State of Telangana (“High AMEENA BEGUM v. THE STATE OF TELANGANA & ORS. [DIPANKAR DATTA, J.] 965 Court”, hereafter). Vide the impugned judgment, a writ petition1 instituted by the appellant seeking a writ of habeas corpus was dismissed and the order of detention dated 24th March, 2023 (“Detention Order”, hereafter) of the appellant’s husband (“Detenu”, hereafter), impugned therein, upheld. THE ORDER OF DETENTION AND FURTHER PROCEEDINGS

3. The Commissioner of Police, Hyderabad City (“Commissioner”, hereafter) passed the Detention Order against the Detenu under the provisions of section 3(2) of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Off enders, Goondas, Immoral Traffi c Off enders, Land Grabbers, Spurious Seed Off enders, Insecticide Off enders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Off enders, Forest Off enders, Gaming Off enders, Sexual Off enders, Explosive Substances Off enders, Arms Off enders, Cyber Crime Off enders and White Collar or Financial Off enders Act 1986 (“the Act”, hereafter). Perusal of the Detention Order reveals that the Detenu earlier suff ered an order of detention dated 4th March, 2021 under the category of “White Collar Off ender”; however, pursuant to an order of the High Court dated 16th August, 2021in writ proceedings instituted by his father2, the Detenu was released from detention on 17th August, 2021; that even after such release, the Detenu did not mend his habitual nature of committing crimes and in the recent past (during 2022 and 2023), in quick succession, had committed 9 (nine) more off ences within the limits of Hyderabad Police Commissionerate, as listed therein; that out of such 9 (nine) off ences, 5(fi ve) FIRs3 had been taken into consideration; and that on examination of the material placed before him, the Commissioner was satisfi ed that the Detenu was “habitually committing the off ences including outraging the modesty of women, cheating, extortion, obstructing the public servants from discharging their legitimate duties, robbery and 1 W.P. No.9000 of 2023 2 W.P. No.12321 of 2021 3 (i) FIR No. 227/2022 dated 28.07.2022 for off ences under Sections 186, 189, 353, 504, 506, IPC; (ii) FIR No. 262/2022 dated 10.10.2022 for off ences under Sections 420, 384, 506 r/w 34, IPC; (iii) FIR No.338/2022 dated 12.10.2022 for off ences under Sections 354, 420, 323, 506 r/w 34, IPC; (iv) FIR No. 18/2023 dated 21.01.2023 for off ences under Sections 506, 420, 406 r/w 34, IPC; and (v) FIR No. 35/2023 dated 08.02.2023 for off ences under Sections 392, 195A, IPC. 966 SUPREME COURT REPORTS [2023] 11 S.C.R. criminal intimidation along with his associates in an organized manner in the limits of … and he is a ‘Goonda’ as defi ned in clause (g) of Section 2”of the Act (bold in original). The Commissioner, with a view to prevent the Detenu from acting in a manner prejudicial to maintenance of public order, recorded not only his satisfaction for invoking the provisions of the Act but also recorded a satisfaction that “the ordinary law under which he was booked is not suffi cient to deal with the illegal activities of such an off ender who has no regard for the society. Hence, unless he is detained under the detention laws, his unlawful activities cannot be curbed”. After referring to the bail petitions fi led by the Detenu in Cr.No.18/2023 of Golconda PS and Cr.No.35/2023 of Falaknuma PS and bail having been granted despite suitable counters fi led by the prosecution resulting in the Detenu’s release from jail, the Commissioner observed as follows: “As seen from his past criminal history, background and antecedents and also his habitual nature of committing crimes one after the other and his eff orts to come out of the prison, I strongly believe that if such a habitual criminal is set free, his activities would not be safe to the society and there is an imminent possibility of his committing similar off ences by violating the bail conditions in one of the cases which would be detrimental to public order, unless he is preventively detained from doing so by anappropriate order of detention.” This was followed by the order detaining the Detenu, treated as a ‘Goonda’, from the date of service of the same with a direction to lodge him in Central Prison, Chanchalguda, Hyderabad.

4. Upon her husband being detained, the appellant submitted a representation dated 29th March, 2023 in terms of section 10 of the Act raising several grounds and seeking revocation of the Detention Order. Such representation was placed before the Advisory Board constituted under section 9 of the Act. The Advisory Board vide a report dated 29th April, 2023opined that “there is suffi cient cause for the detention of the detenu …”, whereupon the Government issued an order dated 20th May, 2023 under sub-section (1) of section 12 read with section 13 of the Act confi rming the Detention Order and directing that the detention be continued for a period of 12 months from the date of detention, i.e., 27th January, 2023 (sic, 27th March, 2023). By a further order of even date, the appellant was informed AMEENA BEGUM v. THE STATE OF TELANGANA & ORS. [DIPANKAR DATTA, J.] 967 by the Government of absence of any valid grounds/reasons to set aside/ revoke the Detention Order leading to rejection of her representation.

5. The appellant then invoked the writ jurisdiction of the High Court whereupon the parties were heard and the impugned judgment delivered containing reasons for dismissing the writ petition. CONTENTIONS OF THE PARTIES

6. In course of hearing of the appeal, Mr. Luthra, learned senior counsel for the appellant invited our attention to several paragraphs of the impugned judgment to demonstrate the errors from which the same suff ered, both factual as well as legal. He also placed on record written notes containing submissions on factual as well as legal aspects. Relying on the authorities referred to therein, he prayed for interference by this Court to facilitate release of the Detenu from illegal detention.

7. Per contra, Mr. Dave, learned senior counsel for the respondents urged that notwithstanding Mr. Luthra’s attempt to prick holes in the impugned judgment of the High Court, what is to be seen and read is the order of detention passed under section 3 and once read, it becomes clear that the ultimate conclusion recorded in the impugned judgment is defensible based on the grounds for detention as assigned by the Commissioner in his order dated 24th March, 2023 and the order dated 20th May, 2023 of the Government. Other contentions raised by Mr. Dave need not be enumerated here, for, we intend to deal with the same while proceeding further. However, to put it concisely, the argument of Mr. Dave has been that the satisfaction of the detaining authority cannot be subjected to objective tests and that the courts are not supposed to exercise appellate powers over such authorities; and that an order, proper on its face, passed by a competent authority in good faith is a complete answer to negative a claim such as the one raised by Mr. Luthra. Several authoritative decisions on preventive detention cases having high precedential value was cited by him and he contended that the appeal deserves nothing but dismissal. GENERAL DISCUSSIONSON PREVENTIVE DETENTION AND JUDICIAL REVIEWABILITY

8. Prior to venturing to decide the contentious issue as to whether the Detention Order is legal or not, we consider it necessary to remind ourselves 968 SUPREME COURT REPORTS [2023] 11 S.C.R. of the purpose for which preventive detentionin a particular case could be ordered, the requisites of a valid detention order and the scope of judicial reviewability of such order.

9. Clauses (1) and (2) of Article 22 of the Constitution guaranteeing protection to a person against arbitrary arrest, eff ected otherwise than under a warrant issued by a court of law, are regarded as vital and fundamental for safeguarding personal liberty. Nonetheless, the protection so guaranteed is subject to clause (3) of Article 22 which operates as an exception to clauses (1) and (2) and ordains that nothing therein shall apply to, inter alia, any person who is arrested or detained under any law providing for preventive detention. The purpose of preventive detention, as said by Hon’ble A.N. Ray, CJ. in Haradhan Saha vs. State of West Bengal4 is to prevent the greater evil of elements imperiling the security and safety of a State, and the welfare of the Nation. Preventive detention, though a draconian and dreaded measure, is permitted by the Constitution itself but subject to the safeguards that are part of the relevant article and those carved out by the Constitutional Courts through judicial decisions of high authority which have stood the test of time.

10. It is common knowledge that recourse to preventive detention can be taken by the executive merely on suspicion and as a precaution to prevent activities by the person, sought to be detained, prejudicial to certain specifi ed objects traceable in a validly enacted law. Since an order of preventive detention has the eff ect of invading one’s personal liberty merely on suspicion and is not viewed as punitive, and the facts on which the subjective satisfaction of the detaining authority is based for ordering preventive detention is not justiciable, meaning thereby that it is not open to the Constitutional Courts to enquire whether the detaining authority has erroneously or correctly reached a satisfaction on every question of fact and/or has passed an order of detention which is not justifi ed on facts, resulting in narrowing down of the jurisdiction to grant relief, it is only just and proper that such drastic power is not only invoked in appropriate cases but is also exercised responsibly, rationally and reasonably. Having regard to the circumstance of loss of liberty by reason of an order of 4 AIR 1974 SC 2154 AMEENA BEGUM v. THE STATE OF TELANGANA & ORS. [DIPANKAR DATTA, J.] 969 preventive detention being enforced without the detenu being extended any opportunity to place his case, the Constitutional Courts being the protectors of Fundamental Rights have, however, never hesitated to interdict orders of detention suff ering from any of the vices on the existence whereof such limited jurisdiction of judicial reviewability is available to be exercised.

11. At this stage, a survey of certain authorities outlining the contours of judicial reviewability of an order of preventive detention may not be inapt.

12. Reading of paragraph 2 of the judgment authored by Hon’ble H.J. Kania, CJ., reveals that A.K. Gopalan vs. State of Madras5 was the fi rst case where the diff erent articles on Fundamental Rights came up for discussion before the Supreme Court. Detention was ordered under the Preventive Detention Act, 1950 (“the Detention Act”, hereafter). The petitioner therein challenged the vires of the enactment as well as the detention order. The decision of the Supreme Court by its full complement of 6 (six) Hon’ble Judges rendered within 4 (four) months of India becoming a Republic, revealed an approach of circumscribing Article 21 by a literal interpretation. Since then, this Court in Rustomjee Cawasjee Cooper vs. Union of India6 has held that “the assumption in A.K. Gopalan case that certain articles in the Constitution exclusively deal with specifi c matters and in determining whether there is infringement of the individual’s guaranteed rights, the object and the form of the State action alone need be considered, and eff ect of the laws on fundamental rights of the individuals in general will be ignored cannot be accepted as correct”, and it being settled law that the new needs of a person for liberty in the diff erent spheres of life can now be claimed as a part of personal liberty under Article 21 and these personal liberties cannot be restricted either by legislation or law not satisfying Articles 14 and 19, we need not at all be guided by the view expressed in A.K. Gopalan (supra). Suffi ce it to observe that A.K. Gopalan (supra) was decided by this Court at the dawn of the Constitution, keeping in mind the then social realities, when the true and correct interpretation of the Constitution was yet to take shape and also without the benefi t of any precedent on the point, which permits understanding of various points of view of Hon’ble Judges