# BANKA SNEHA SHEELA v. THE STATE OF TELANGANA & ORS

- **Citation:** [2021] 8 S.C.R. 978
- **Court:** Supreme Court of India
- **Decided:** 2021-08-02
- **Case number:** Criminal Appeal No. 733 of 2021
- **Bench:** R. F. Nariman, Hrishikesh Roy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/banka-sneha-sheela-v-the-state-of-telangana-ors-35287
- **Pages:** 28

## Headnote

Preventive detention: Telangana Prevention of Dangerous
Activities of Boot-leggers, Dacoits, Drug-Offenders, Goondas,
Immoral Traffic Offenders Land-Grabbers, Spurious Seed
Offenders, Insecticide Offenders, Fertiliser Offenders, Food
Adulteration Offenders, Fake Document Offenders, Scheduled
Commodities Offenders, Forest Offenders, Gaming Offenders,
Sexual Offenders, Explosive Substances Offenders, Arms Offenders,
Cyber Crime Offenders and White Collar or Financial Offenders
Act, 1986 - s. 3(2) - Preventive detention under - On facts, detenu
accused of cheating many people to the tune of more than Rs. 50.00
lakhs in the guise of providing good profit through investment in
share market - Five FIRs filed against detenu, being u/s. 420, 406
and 506 IPC - Detention order passed nine months after the filing
of the last FIR - Writ petition challenging order of preventive
detention - Dismissed by the High Court - On appeal, held: Mere
contravention of law such as indulging in cheating or criminal breach
of trust certainly affects 'law and order' but to affect 'public order',
it must affect the community or the public at large - Allegation in
the FIRs pertain to the realm of 'law and order' wherein various
acts of cheating are ascribed to the detenu punishable under IPC -
Possible apprehension of breach of law and order can be said to
be made out - This may be a ground to appeal against the bail
orders granted and/or to cancel bail but not for a recourse to
preventive detention statute - Thus, the detention order is quashed
and the impugned judgment is set aside.
s. 2(a) explanation - Public order - Explained.
Allowing the appeal, the Court
HELD: 1.1 On the facts of the instant case, it is clear that
at the highest, a possible apprehension of breach of law and order
[2021] 8 S.C.R. 978
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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. Therefore, the detention
order is quashed on this ground. The impugned judgment is set
aside and the Detenu is ordered to be freed forthwith. [Para
24][1005-D-F]
1.2 While it cannot seriously be disputed that the Detenu
may be a "white collar offender" as defined under Section 2(x) of
the Telangana Prevention of Dangerous Activities Act, 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. Public order is defined in the Explanation to
Section 2(a) of the Telangana Prevention of Dangerous Activities
Act 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. As is well-known, the expressions
'law and order', 'public order', and 'security of state' are different
from one another. [Para 11, 12][988-G-H; 989-A-B]
1.3 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. There can be no doubt that what is alleged in
the five FIRs pertain to the realm of 'law and order' in that various
acts of cheating are ascribed to the Detenu which are punishable
under the three sections of the Indian Penal Code set out in the
five FIRs. A close reading of the Detention Order would make it
clear that the reason for the said Order is not any apprehension
of widespread public harm, danger or alarm but is only because
the Detenu was successful in obtaining anticipatory bail/bail from
the Courts in each of the five FIRs. If a person is granted
anticipatory bail/bail wrongly, there are well-k

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SUPREME COURT REPORTS
[2021] 8 S.C.R.
BANKA SNEHA SHEELA
v.
THE STATE OF TELANGANA & ORS.
(Criminal Appeal No. 733 of 2021)
AUGUST 02, 2021
[R. F. NARIMAN AND HRISHIKESH ROY, JJ.]
Preventive detention: Telangana Prevention of Dangerous
Activities of Boot-leggers, Dacoits, Drug-Offenders, Goondas,
Immoral Traffic Offenders Land-Grabbers, Spurious Seed
Offenders, Insecticide Offenders, Fertiliser Offenders, Food
Adulteration Offenders, Fake Document Offenders, Scheduled
Commodities Offenders, Forest Offenders, Gaming Offenders,
Sexual Offenders, Explosive Substances Offenders, Arms Offenders,
Cyber Crime Offenders and White Collar or Financial Offenders
Act, 1986 - s. 3(2) - Preventive detention under - On facts, detenu
accused of cheating many people to the tune of more than Rs. 50.00
lakhs in the guise of providing good profit through investment in
share market - Five FIRs filed against detenu, being u/s. 420, 406
and 506 IPC - Detention order passed nine months after the filing
of the last FIR - Writ petition challenging order of preventive
detention - Dismissed by the High Court - On appeal, held: Mere
contravention of law such as indulging in cheating or criminal breach
of trust certainly affects 'law and order' but to affect 'public order',
it must affect the community or the public at large - Allegation in
the FIRs pertain to the realm of 'law and order' wherein various
acts of cheating are ascribed to the detenu punishable under IPC -
Possible apprehension of breach of law and order can be said to
be made out - This may be a ground to appeal against the bail
orders granted and/or to cancel bail but not for a recourse to
preventive detention statute - Thus, the detention order is quashed
and the impugned judgment is set aside.
s. 2(a) explanation - Public order - Explained.
Allowing the appeal, the Court
HELD: 1.1 On the facts of the instant case, it is clear that
at the highest, a possible apprehension of breach of law and order
[2021] 8 S.C.R. 978
978
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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. Therefore, the detention
order is quashed on this ground. The impugned judgment is set
aside and the Detenu is ordered to be freed forthwith. [Para
24][1005-D-F]
1.2 While it cannot seriously be disputed that the Detenu
may be a "white collar offender" as defined under Section 2(x) of
the Telangana Prevention of Dangerous Activities Act, 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. Public order is defined in the Explanation to
Section 2(a) of the Telangana Prevention of Dangerous Activities
Act 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. As is well-known, the expressions
'law and order', 'public order', and 'security of state' are different
from one another. [Para 11, 12][988-G-H; 989-A-B]
1.3 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. There can be no doubt that what is alleged in
the five FIRs pertain to the realm of 'law and order' in that various
acts of cheating are ascribed to the Detenu which are punishable
under the three sections of the Indian Penal Code set out in the
five FIRs. A close reading of the Detention Order would make it
clear that the reason for the said Order is not any apprehension
of widespread public harm, danger or alarm but is only because
the Detenu was successful in obtaining anticipatory bail/bail from
the Courts in each of the five FIRs. If a person is granted
anticipatory bail/bail wrongly, there are well-known remedies in
the ordinary law to take care of the situation. The State can always
appeal against the bail order granted and/or apply for cancellation
of bail. The mere successful obtaining of anticipatory bail/bail
BANKA SNEHA SHEELA v. THE STATE OF TELANGANA &
ORS.
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SUPREME COURT REPORTS
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orders being the real ground for detaining the Detenu, there can
be no doubt that the harm, danger or alarm or feeling of security
among the general public spoken of in Section 2(a) of the
Telangana Prevention of Dangerous Activities Act is make believe
and totally absent in the facts of the instant case. [Para 13, 14][991G-H; 992-A-C]
1.4 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. 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. [Para
17][994-C-E]
Madhu Limaye v. Sub-Divisional Magistrate (1970) 3
SCC 746 - held inapplicable.
Subramanian v. State of Tamil Nadu (2012) 4 SCC 699
: [2012] 1 SCR 985 - distinguished.
Commissioner of Police v. C. Sunita (2004) 7 SCC 467
: [2004] 3 Suppl. SCR 701 ; R. Kalavathi v. State of
Tamil Nadu (2006) 6 SCC 14 : [2006] 3 Suppl. SCR
74; Ram Manohar Lohia v. State of Bihar [1966] 1 SCR
709; Frances Coralie Mullin v. W.C. Khambra [1980]
2 SCR 1095; Vijay Narain Singh v. State of Bihar
(1984) 3 SCC 14 : [1984] 3 SCR 435; Union of India
v. Yumnam Anand (2007) 10 SCC 190 : [2007] 5 SCR
60; Rekha v. State of Tamil Nadu, (2011) 5 SCC 244 :
[2011] 4 SCR 740; Haradhan Saha v. The State of West
Bengal (1975) 3 SCC 198 : [1975] 1 SCR 778; Yumman
Ongbi Lembi Leima v. State of Manipur (2012) 2 SCC
176 : [2012] 1 SCR 1; Mungala Yadamma v. State of
A.P. (2012) 2 SCC 386 : [2012] 1 SCR 26 - referred
to.
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Sama Aruna v. State of Telangana (2018) 12 SCC 150
: [2017] 4 SCR 52; Collector & District Magistrate v.
Sangala Kondamma (2005) 3 SCC 666 - cited.
Case Law Reference
(1970) 3 SCC 746
held inapplicable
Para 7
[2004] 3 Suppl. SCR 701
referred to
Para 7
[2006] 3 Suppl. SCR 74
referred to
Para 7
[1966] 1 SCR 709
referred to
Para 12
[1980] 2 SCR 1095
referred to
Para 18
[1984] 3 SCR 435
referred to
Para 18
[2007] 5 SCR 60
referred to
Para 19
[2011] 4 SCR 740
referred to
Para 20
[1975] 1 SCR 778
referred to
Para 20
[2012] 1 SCR 985
distinguished
Para 21
[2012] 1 SCR 1
referred to
Para 22
[2012] 1 SCR 26
referred to
Para 22
[2017] 4 SCR 52
cited
Para 23
(2005) 3 SCC 666
cited
Para 23
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
733 of 2021.
From the Judgment and Order dated 31.03.2021 of the High Court
of Telangana at Hyderbad in Writ Petition No. 20146 of 2020.
Gaurav Agrawal, Venkateshwar Rao Anumolu, Shashwat Goel,
Vijay Babu, Advs. for the Appellant.
Ranjit Kumar, Sr. Adv., S. Udaya Kumar Sagar, Ms. Sweena Nair,
Advs. for the Respondents.
BANKA SNEHA SHEELA v. THE STATE OF TELANGANA &
ORS.
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SUPREME COURT REPORTS
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The Judgment of the Court was delivered by
R. F. NARIMAN, J
1. Leave granted.
2. The present appeal arises out of a judgment dated 31.03.2021,
passed by the High Court for the State of Telangana at Hyderabad, by
which a Writ Petition filed by the Petitioner challenging a Preventive
Detention Order [hereinafter referred to as "Detention Order"] passed
against the Petitioner's husband [hereinafter referred to as "the Detenu"]
under Section 3(2) of the Telangana Prevention of Dangerous Activities
of Boot-leggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic
Offenders Land-Grabbers, Spurious Seed Offenders, Insecticide
Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake
Document Offenders, Scheduled Commodities Offenders, Forest
Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances
Offenders, Arms Offenders, Cyber Crime Offenders and White Collar
or Financial Offenders Act, 1986 [hereinafter referred to as "Telangana
Prevention of Dangerous Activities Act"], was dismissed.
3. The Detention Order under the provisions of the Telangana
Prevention of Dangerous Activities Act is dated 28.09.2020. It refers to
five FIRs that have been filed against the Detenu, all the said FIRs being
under Sections 420, 406 and 506 of the IPC. The facts contained in the
FIRs range from October, 2017 to December, 2019 and are similar. We
may set out the facts contained in FIR No.705 of 2019 as a sample of
similar FIRs filed against the Detenu as follows [This narration of the
FIR is to be found in the Detention Order itself]:
"On 12.12.2019 at 1200 hours a complaint was received from Sri
Kommu Naveen Kumar S/o Veeraswamy, aged about 24 years,
Occ: Car Mechanic, R/o H.No. 2-32, Yadaran Village, Shamirpet
Mandal stating that he has been running a Garage near main road
at Muraharipally village for the past one year. One Banka
Ravikanth, aged about 35 years used to come to his garage for
two to three times in a month for his car servicing. In the month
of March, 2019 the said Ravikanth introduced himself as a High
Court advocate and he would invest money in newly upcoming
companies and insisted the complainant to invest money for 100%
return. He also informed that they are three advocates, of them
one is CA (Chartered Accountant) and another is CS (Company
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Secretary) by name Chandramouli, aged about 65 years. On
believing his words, he transferred Rs.50,000/- through Phonepay to his Indian Bank, Shamirpet branch vide A/c No. 6714073306.
Again on 28.05.2019 he transferred Rs. 1,00,000/- through Phonepay as second investment and on 20.06.2019 he deposited Rs.
1,00,000/- from his Indian Bank, Gachibowli Branch account to
his account besides giving net cash of Rs. 2,00,000/- by hand.
While sending Rs. 1 lakh through phone pay in presence of one
Prasad, Banka Ravikanth assured the complainant that in the 2nd
investment he would give him Rs. 41,000/- per month throughout
the year and he will take Rs. 3,000/- towards his commission. On
12.12.2019 when the complainant asked him to return his money,
he threatened with dire consequences. The complainant stated
that the said Ravikanth has cheated him by saying that he would
get more return. On the strength of the complainant, police
registered a case and investigation into."
Following upon the narration of the 5 FIRs comes this important
paragraph:
"Due to above incidents, the complainants, victims and other young
aspirants, who want to invest money in stock/share market and
derive benefits became scared and feeling insecure. These
incidents have also caused loss of faith and trust among investors
in stock trading fearing similar cheating towards them by the people
like you. They are hesitated to consult any consultancies or persons
fearing similar cheating by the unknown persons in the guise of
providing good profits. These prejudicial activities have also caused
disturbance in the public."
4. The Detention Order then refers to the 'Modus Operandi' of
the Detenu as follows:
"You are a native of Karimnagar district. You completed graduation
(B.Com) in 2011 and LLB in 2019 and have been doing trading in
stock market. You have introduced yourselves to the victims as a
High Court Advocate and you have a team consisting of one CA
(Chartered Accountant) and CS (Company Secretary) and three
advocates. Your CS has an expertise and links in Central and
State governments. You have knowledgeable persons in share
marketing and used to invest money in upcoming companies which
BANKA SNEHA SHEELA v. THE STATE OF TELANGANA &
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ensure return of 100%. You would lure the innocent public in the
guise of providing good profit by investing their money in share
marketing. You used to contact your known persons and lure them
to invest their money in share market to get good profits assuring
the profit 100% within a short period. Further you used to give
blank cheques and ask commission from the victims to gain their
confidence. As per plan, you collected amount from the victims
through Phone-pe which is linked to your bank account and netbanking and in-person. When you received money to your bank
account, immediately you had transfer the received amount to
your wife's bank account. When the victims contact you over
phone, you first start avoiding them and then diverting their calls
and finally cheating them. Later, you changed your residential
address in order to conceal your where-abouts from the victims.
You have cheated so many people to the tune of more than Rs.
50.00 lakhs in the guise of providing good profit through investment
in share market.
You are involved in Cr.No.34/2020 u/s 406, 420 IPC of Malkajgiri
Police Station in the limits of Rachakonda Police Commissionerate
which referred by way of your antecedent criminal background
the same is not relied upon for your detention."
5. Thereafter, the Detention Order narrates that anticipatory bail/
bail has been granted to the Detenu in all the aforesaid FIRs, the last
such relief granted being on 10.08.2020. The Detention Order then
narrates:
"Having regard to your involvement in series of criminal activities
such as cheating in the guise of providing good profit by investing
their money in stock market and collected huge amounts to the
tune of more than Rs. 50 lakhs from them in an organized way
and in view of the bail petitions moved by you and granted in the
aforesaid cases and later releasing on conditional bail, I am satisfied
that free movement of such an offender like you is not safe in the
interest of the society as there is an imminent possibility of you
indulging in similar prejudicial activities with another set of innocent
youth and cheat them on the pretext of providing good profit by
investing their money in stock market, which are detrimental to
public order, unless you were prevented from doing so by an
appropriate order of detention.
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Thus you have indulged in the acts of White Collar offences by
committing offences such as cheating so many people by collecting
more than Rs. 50 lakhs from them through Phone Pay and online
banking and sometimes in person in the guise of providing more
profit in the limits of Cyberabad Police Commissionerate. Further
your acts have been adversely affecting the maintenance of public
order and creating feeling of insecurity among young people, thus
disturbing peace and tranquillity in the area.
It is imperative to prevent you from acting in any manner prejudicial
to the maintenance of public order. I feel that recourse to normal
law may not be effective deterrent-in preventing you from
indulging in such further activities prejudicial to the maintenance
of public order in the area, unless you were detained by invoking
the provisions under the "Telangana Prevention of Dangerous
Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas,
Immoral Traffic Offenders, Land-Grabbers, Spurious Seed
Offenders, Insecticide Offenders, Fertiliser Offenders, Food
Adulteration Offenders, Fake Document Offenders, Scheduled
Commodities Offenders, Forest Offenders, Gaming Offenders,
Sexual Offenders, Explosive Substances Offenders, Arms
Offenders, Cyber Crime Offenders and White Collar or Financial
Offenders Act, 1986, (Act No. 01 of 1986)"."
6. As a result thereof, the Detenu was preventively detained from
the date of the Detention Order itself. A representation dated 31.10.2020
was made by the Petitioner herein to the Commissioner of Police,
Cyberabad Commissionerate [Respondent No. 2] which was considered
by the Advisory Board, who by its Order 11.11.2020 found that there
was sufficient cause to continue the Detention Order. Vide the Order of
the State of Telangana dated 17.12.2020, the Detention Order was
confirmed and the period of detention was directed to be for a period of
one year from 05.10.2020.
7. The impugned judgment, after narrating the facts and the
arguments made by counsel on behalf of the Petitioner as well as counsel
on behalf of the State, then held:
"9. In the instant case, a perusal of the material placed on record
reveals that the detenu was granted bail by the Courts concerned
in all the five cases relied upon by the detaining authority for
BANKA SNEHA SHEELA v. THE STATE OF TELANGANA &
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preventively detaining him. Under these circumstances, the
contention of the respondents that the illegal activities of the detenu
would disturb the even tempo of life of the community which
makes it prejudicial to the maintenance of the public order and
there is imminent possibility of the detenu again indulging in similar
prejudicial activities, cannot be brushed aside."
The judgment then referred to the decisions of this Court in Madhu
Limaye v. Sub-Divisional Magistrate (1970) 3 SCC 746,
Commissioner of Police v. C. Sunita (2004) 7 SCC 467 and R.
Kalavathi v. State of Tamil Nadu (2006) 6 SCC 14, and then concluded:
"The modus operandi of the detenu in the alleged offences which
were committed in quick succession would certainly disturb the
public peace and tranquillity. So it is imperative upon the officers
concerned to pass the order of detention, since the acts of the
detenu are prejudicial to the maintenance of public order. The
illegal activities of the detenu were of such a reach and extent,
that they would certainly affect the even tempo of life and were
prejudicial to the public order. The detaining authority had sufficient
material to record subjective satisfaction that the detention of the
detenu was necessary to maintain public order and even tempo of
life of the community. The order of detention does not suffer from
any illegality. The grounds of detention, as indicated in the impugned
order, are found to be relevant and in tune with the provisions of
the P.D.Act. Since the detenu got bail in all the five cases relied
upon by the detaining authority, there is nothing wrong on the part
of the detaining authority in raising an apprehension that there is
every possibility of the detenu committing similar offences, which
would again certainly affect the public order. The quick succession
of commission of alleged offences by the detenu makes it amply
clear that there is every possibility of detenu committing similar
offences in future, which are prejudicial to the maintenance of
public order."
8. Shri Gaurav Agarwal, learned counsel appearing on behalf of
the Petitioner has raised three points before us. First and foremost, he
said there is no proximate or live connection between the acts complained
of and the date of the Detention Order, as the last act that was complained
of, which is discernible from the first 3 FIRs [FIRs dated 12.12.2019,
12.12.2019 and 14.12.2019], was in December 2019 whereas the
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Detention Order was passed 9 months later on 28.09.2020. He then
argued, without conceding, that at best only a 'law and order' problem if
at all would arise on the facts of these cases and not a 'public order'
problem, and referred to certain judgments of this court to buttress the
same. He also argued that the Detention Order was totally perverse in
that it was passed only because anticipatory bail/bail applications were
granted. The correct course of action would have been for the State to
move to cancel the bail that has been granted if any further untoward
incident were to take place.
9. Shri Ranjit Kumar, learned senior counsel appearing on behalf
of the State of Telangana, reiterated the grounds contained in the
Detention Order and argued that the Detenu was a habitual fraudster
who had therefore created fear amongst the gullible public, and since he
was likely to commit similar offences in future, it was important to
preventively detain him, as the ordinary law had no deterrent effect on
him. Further, there is no doubt that he had infringed 'public order' as
defined by the Telangana Prevention of Dangerous Activities Act and
had disturbed the even tempo of life of persons who were cheated by
him and were likely to be cheated by him.
10. Having heard learned counsel for both parties, it is first
important to set out the important provisions of the Act as follows:
"2. Definitions
In this Act, unless the context otherwise requires,
(a) "acting in any manner prejudicial to the maintenance of public
order" means when a bootlegger, a dacoit, a drug-offender, a
goonda, an immoral traffic offender, Land-Grabber, a Spurious
Seed Offender, an Insecticide Offender, a Fertiliser Offender, a
Food Adulteration Offender, a Fake Document Offender, a
Scheduled Commodities Offender, a Forest Offender, a Gaming
Offender, a Sexual Offender, an Explosive Substances Offender,
an Arms Offender, a Cyber Crime Offender and a White Collar
or Financial Offender is engaged or is making preparations for
engaging, in any of his activities as such, which affect adversely,
or are likely to affect adversely, the maintenance of public order:
Explanation:- For the purpose of this clause public order shall be
deemed to have been affected adversely or shall be deemed likely
BANKA SNEHA SHEELA v. THE STATE OF TELANGANA &
ORS. [R. F. NARIMAN, J]
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to be affected adversely inter alia, if any of the activities of any of
the persons referred to in this clause directly, or indirectly, is causing
or calculated to cause any harm, danger or alarm or a feeling of
insecurity among the general public or any section thereof or a
grave wide-spread danger to life or public health;
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(x) "White collar offender" or "Financial Offender" means a
person who commits or abets the commission of offences
punishable under the Telangana Protection of Depositors of
Financial Establishment Act, 1999 (Act 17 of 1999) or under sections
406 to 409 or 417 to 420 or under Chapter XVIII of the Indian
Penal Code, 1860."
"Section 3. Power to make orders detaining certain persons
(1) The Government may, if satisfied with respect to any bootlegger,
dacoit, drug-offender, goonda, immoral traffic offender, LandGrabber, Spurious Seed Offender, Insecticide Offender, Fertilizer
Offender, Food Adulteration Offender, Fake Document Offender,
Scheduled Commodities Offender, Forest Offender, Gaming
Offender, Sexual Offender, Explosive Substances Offender, Arms
Offender, Cyber Crime Offender and White Collar or Financial
Offender that with a view to preventing him from acting in any
manner prejudicial to the maintenance of public order, it is
necessary so to do, make an order directing that such person be
detained."
"Section 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."
11. While it cannot seriously be disputed that the Detenu may be
a "white collar offender" as defined under Section 2(x) of the Telangana
Prevention of Dangerous Activities Act, 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. Public order is defined
in the Explanation to Section 2(a) of the Telangana Prevention of
Dangerous Activities Act to be a harm, danger or alarm or a feeling of
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insecurity among the general public or any section thereof or a grave
widespread danger to life or public health.
12. As is well-known, the expressions 'law and order', 'public
order', and 'security of state' are different from one another. In Ram
Manohar Lohia v. State of Bihar (1966) 1 SCR 709 the question before
this Court arose under a Preventive Detention Order made under Rule
30 of the Defence of India Rules, which permits apprehension and
detention of a person likely to act in a manner prejudicial to the
maintenance of public order. This Court set out the distinction between
a mere law and order disturbance and a public order disturbance as
follows:
"The Defence of India Act and the Rules speak of the conditions
under which preventive detention under the Act can be ordered.
In its long title and the preamble the Defence of India Act speaks
of the necessity to provide for special measures to ensure public
safety and interest, the defence of India and civil defence. The
expression public safety and interest between them indicate the
range of action for maintaining security peace and tranquillity of
India whereas the expressions defence of India and civil defence
connote defence of India and its people against aggression from
outside and action of persons within the country. These generic
terms were used because the Act seeks to provide for a congeries
of action of which preventive detention is just a small part. In
conferring power to make rules, Section 3 of the Defence of India
Act enlarges upon the terms of the preamble by specification of
details. It speaks of defence of India and civil defence and public
safety without change but it expands the idea of public interest
into maintenance of public order, the efficient conduct of military
operations and maintaining of supplies and services essential to
the life of the community. Then it mentions by way of illustration
in clause (15) of the same section the power of apprehension and
detention in custody of any person whom the authority empowered
by the rules to apprehend or detain (the authority empowered to
detain not being lower in rank than that of a District Magistrate),
suspects, on grounds appearing to that authority to be reasonable-
(a) of being of hostile origin; or
(b) of having acted, acting or being about to act or being likely to
act in a manner prejudicial toBANKA SNEHA SHEELA v. THE STATE OF TELANGANA &
ORS. [R. F. NARIMAN, J]
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(i) the defence of India and civil defence;
(ii) the security of the State;
(iii) the public safety or interest:
(iv) the maintenance of public order;
(v) India's relations with foreign states:
(vi) the maintenance of peaceful conditions in any part or area of
India: or
(vii) the efficient conduct of military operations.
It will thus appear that security of the state, public safety or interest,
maintenance of public order and the maintenance of peaceful
conditions in any part or area of India may be viewed separately
even though strictly one clause may have an effect or bearing on
another. Then follows Rule 30, which repeats the above conditions
and permits detention of any person with a view to preventing
him from acting in any of the above ways. The argument of Dr
Lohia that the conditions are to be cumulatively applied is clearly
untenable. It is not necessary to analyse Rule 30 which we quoted
earlier and which follows the scheme of Section 3(15). The
question is whether by taking power to prevent Dr Lohia from
acting to the prejudice of "law and order" as against "public order"
the District Magistrate went outside his powers.
[page 738-739]
xxx xxx xxx
We have here a case of detention under Rule 30 of the Defence
of India Rules which permits apprehension and detention of a
person likely to act in a manner prejudicial to the maintenance of
public order. It follows that if such a person is not detained public
disorder is the apprehended result. Disorder is no doubt prevented
by the maintenance of law and order also but disorder is a broad
spectrum which includes at one end small disturbances and at the
other the most serious and cataclysmic happenings. Does the
expression "public order" take in every kind of disorders or only
some of them? The answer to this serves to distinguish "public
order" from "law and order" because the latter undoubtedly takes
in all of them. Public order if disturbed, must lead to public disorder.
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Every breach of the peace does not lead to public disorder. When
two drunkards quarrel and fight there is disorder but not public
disorder. They can be dealt with under the powers to maintain
law and order but cannot be detained on the ground that they
were disturbing public order. Suppose that the two fighters were
of rival communities and one of them tried to raise communal
passions. The problem is still one of law and order but it raises the
apprehension of public disorder. Other examples can be imagined.
The contravention of law always affects order but before if can
be said to affect public order, it must affect the community or the
public at large. A mere disturbance of law and order leading to
disorder is thus not necessarily sufficient for action under the
Defence of India Act but disturbances which subvert the public
order are. A District Magistrate is entitled to take action under
Rule 30(1)(b) to prevent subversion of public order but not in aid
of maintenance of law and order under ordinary circumstances.
It will thus appear that just as "public order" in the rulings of this
Court (earlier cited) was said to comprehend disorders of less
gravity than those affecting "security of State", "law and order"
also comprehends disorders of less gravity than those affecting
"public order". One has 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."
[page 745-746]
13. 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.
14. There can be no doubt that what is alleged in the five FIRs
pertain to the realm of 'law and order' in that various acts of cheating
BANKA SNEHA SHEELA v. THE STATE OF TELANGANA &
ORS. [R. F. NARIMAN, J]
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are ascribed to the Detenu which are punishable under the three sections
of the Indian Penal Code set out in the five FIRs. A close reading of the
Detention Order would make it clear that the reason for the said Order
is not any apprehension of widespread public harm, danger or alarm but
is only because the Detenu was successful in obtaining anticipatory bail/
bail from the Courts in each of the five FIRs. If a person is granted
anticipatory bail/bail wrongly, there are well-known remedies in the
ordinary law to take care of the situation. The State can always appeal
against the bail order granted and/or apply for cancellation of bail. The
mere successful obtaining of anticipatory bail/bail orders being the real
ground for detaining the Detenu, there can be no doubt that the harm,
danger or alarm or feeling of security among the general public spoken
of in Section 2(a) of the Telangana Prevention of Dangerous Activities
Act is make believe and totally absent in the facts of the present case.
15. At this stage, it is important to advert to the counter affidavit
dated 17.07.2021 filed by the State of Telangana. Paragraph 18 of the
counter affidavit refers to the granting of bail by Courts in all the five
FIRs, which is the real reason for the passing of the Detention Order, as
follows:
"18. It is submitted that in the instant case, the decision to detain
the detenu herein is based on the perusal of the material on records
which revealed that the detenu was granted bail by the Courts
concerned in all the five cases relied upon by the detaining authority
for preventively detaining him. The Respondent No. 2 herein
recorded his satisfaction that the activities of the detenu are
prejudicial to the maintenance of public order, and that ordinary
law may not be an effective deterrent to prevent the detenu from
indulging in further prejudicial activities. Furthermore, the materials
relied upon and circumstances show that subjective satisfaction
of the detaining authority is not tainted or illegal on any account.
Therefore the passing of the detention order is justified considering
that the illegal activities of the detenu would disturb the even tempo
of life of the community, which makes it prejudicial to the
maintenance of the public order and there is imminent possibility
of the detenu again indulging in similar prejudicial activities."
Paragraph 21 of the counter affidavit then states as follows:
"21. It is submitted that in the acts which disturb public tranquillity
or are breaches of the peace should not be given a narrow meaning,
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but should be given a liberal interpretation and the expression 'in
the interest of public order' is very wide amplitude as held by this
Hon'ble Court in Madhu Limaye Versus Sub Division
Magistrate reported in AIR 1971 SC 2486. Therefore the
Respondent No. 2, before passing the said detention order
considered the crucial issues as to whether the activities of the
detenu were prejudicial to public and as to whether public order
could be affected by only such contravention which affects the
community or the public at large."
16. The reference to Madhu Limaye v. Sub-Divisional
Magistrate (supra) is wholly inapposite. This judgment dealt with the
scope of the expression "in the interests of public order" which occurs
in Article 19(2) to 19(4) of the Constitution of India. The observations
made by this judgment were in the context of a challenge to Section 144
of the Code of Criminal Procedure. Importantly, this Court referred to
the judgment in Ram Manohar Lohia (supra) and then opined:
"19. Adopting this test we may say that the State is at the centre
and society surrounds it. Disturbances of society go in a broad
spectrum from more disturbance of the serenity of life to jeopardy
of the State. The acts become graver as we journey from the
periphery of the largest circle towards the centre. In this journey
we travel first though public tranquillity, then through public order
and lastly to the security of the State.
20. In dealing with the phrase "maintenance of public order" in
the context of preventive detention, we confined the expression
in the relevant Act to what was included in the second circle and
left out that which was in the largest circle. But that consideration
need not always apply because small local disturbances of the
even tempo of life, may in a sense be said to effect "public order"
in a different sense, namely, in the sense of a state of law
abidingness vis-a-vis the safety of others. In our judgment the
expression "in the interest of public order" in the Constitution is
capable of taking within itself not only those acts which disturb
the security of the State or act within ordre publique as described
but also certain acts which disturb public tranquillity or are breaches
of the peace. It is not necessary to give the expression a narrow
meaning because, as has been observed, the expression "in the
interest of public order" is very wide. Whatever may be said of
BANKA SNEHA SHEELA v. THE STATE OF TELANGANA &
ORS. [R. F. NARIMAN, J]
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"maintenance of public order" in the context of special laws
entailing detention of persons without a trial on the pure subjective
determination of the Executive cannot be said in other
circumstances. In the former case this Court confined the meaning
to graver episodes not involving cases of law and order which are
not disturbances of public tranquillity but of ordre publique."
17. 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. The reason for not adopting a narrow
meaning of 'public order' in that case was because of the expression "in
the interests of" which occurs to Article 19(2) to 19(4) and which is
pressed into service only when a law is challenged as being
unconstitutional for being violative of Article 19 of the Constitution. 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. 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.
18. Several judgments of this Court have reminded us about the
role of the High Courts and this Court in cases of preventive detention.
Thus, in Frances Coralie Mullin v. W.C. Khambra (1980) 2 SCR
1095, a Division Bench of this Court held:
"We have no doubt in our minds about the role of the court in
cases of preventive detention: it has to be one of eternal vigilance.
No freedom is higher than personal freedom and no duty higher
than to maintain it unimpaired. The Court's writ is the ultimate
insurance against illegal detention. The Constitution enjoins
conformance with the provisions of Article 22 and the Court exacts
compliance. Article 22(5) vests in the detenu the right to be provided
with an opportunity to make a representation. Here the Law
Reports tell a story and teach a lesson. It is that the principal
enemy of the detenu and his right to make a representation is
neither high-handedness nor mean-mindedness but the casual
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indifference, the mindless insensibility, the routine and the red tape
of the bureaucratic machine."
Likewise, in Vijay Narain Singh v. State of Bihar (1984) 3 SCC
14, a 3-Judge Bench of this Court (in which A.P. Sen,J. dissented),
Venkataramiah, J., speaking for the majority, reminds us:
"32. ...It is well settled that the law of preventive detention is a
hard law and therefore it should be strictly construed. Care should
be taken that the liberty of a person is not jeopardised unless his
case falls squarely within the four corners of the relevant law.
The law of preventive detention should not be used merely to clip
the wings of an accused who is involved in a criminal prosecution.
It is not intended for the purpose of keeping a man under detention
when under ordinary criminal law it may not be possible to resist
the issue of orders of bail, unless the material available is such as
would satisfy the requirements of the legal provisions authorising
such detention. When a person is enlarged on bail by a competent
criminal court, great caution should be exercised in scrutinising
the validity of an order of preventive detention which is based on
the very same charge which is to be tried by the criminal court."
[emphasis supplied]
O.