9911796707
TMI Blog2022 (5) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 opening a bank account and supplying uniforms. 4 The first FIR, FIR No 675 of 2020, was registered on 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 1860 "IPC" . On 17 December 2020, another FIR, FIR No 343 of 2020, was registered at Police Station Chatrinaka against the detenu for offences punishable under Sections 408, 420 and 120B IPC based on similar allegations at the behest of another informant. The detenu was arrested, in the first case, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 other hand, it is evident from the counter affidavit which has been filed 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 after both the criminal cases were instituted. The detention was, it is urged, based on stale material. It has been argued that the ordinary 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 attributed 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 wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of public order, it is necessary so to do, make an order directing that such person 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 order in writing, direct that during such period as may be specified in the order, such District Magistrate or Commissioner of Police 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 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. *** 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." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 months 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 which were imposed on the detenu, while granting bail, were duly fulfilled and there was no incidence of a further violation. In the counter affidavit 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public 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) 13 In Banka Sneha Sheela v. State of Telangana (2021) 9 SCC 415 , a two-judge Bench of this Court examined a similar factual situation of an alleged offence of cheating gullible persons as a ground for preventive detention under the Telangana Act of 1986. The Court held that while such an apprehension may be a ground for considering the cancellation of bail to an accused, it cannot meet the standards prescribed 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 ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, 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 makebelieve 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 persons. 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 Telangana (2018) 12 SCC 150, 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 and fourteen years earlier in relation to offences involving a criminal conspiracy, cheating, kidnapping and extortion. This Court held that a preventive detention order that is passed wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l powers of preventive detention do not devolve into a draconian and 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 two FIRs which were registered against the detenu are capable of being 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 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 (2021) 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
