# CASE DETAILS AMEENA BEGUM v. THE STATE OF TELANGANA & ORS

- **Citation:** 2023 INSC 788
- **Court:** Supreme Court of India
- **Decided:** 2023-09-04
- **Case number:** Criminal Appeal No. 2706 of 2023
- **Bench:** Surya Kant, Dipankar Datta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-ameena-begum-v-the-state-of-telangana-ors-36392
- **Pages:** 47

## Headnote

Issue for consideration: An order of detention dated 24.03.2023
was passed by the Commissioner of Police against appellant's husband.
Whether the alleged acts of commission for which the Detenu has been kept
under detention are prejudicial to 'public order' and whether all relevant
circumstances were considered or whether extraneous factors weighed in
the mind of the detaining authority leading to the conclusion that the Detenu
is a habitual off ender and for prevention of further crimes by him, he ought
to be detained.
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
Off enders, Food Adulteration Off enders, Fake Document Off enders,
Scheduled Commodities Offenders, Forest Offenders, Gaming
Off enders, Sexual Off enders, Explosive Substances Off enders, Arms
Off enders, Cyber Crime Off enders and White Collar or Financial
Offenders Act 1986 - During the years 2022 and 2023, in quick
succession, appellant's husband had committed 9 (nine) more off ences
and 5 (fi ve) FIRs were registered under various sections 186, 189, 353,
504, 420, 384, 354, 420, 323, 392, 195A of IPC - An order of detention
dated 24.03.2023 was passed - Propriety:
Held: The order of detention impugned failed to diff erentiate between
off ences which create a "law and order" situation and which prejudicially
aff ect or tend to prejudicially aff ect "public order" - Even if the off ences
[2023] 11 S.C.R. 958 : 2023 INSC 788
958
959
referred to in the Detention Order, alleged to have been committed by the
Detenu have led to the satisfaction being formed, still the same are separate
and stray acts aff ecting private individuals and the repetition of similar such
acts would not tend to aff ect the even fl ow of public life - The off ence in
respect of the minor girl did exercise consideration of the Court for some
time but it was noted that the Detenu was not arrested because of an order
passed by the High Court on an application u/s. 438 of the Cr.PC. - Even
otherwise, the gravity of the off ences alleged in Arun Ghosh case was
higher in degree, yet, the same were not considered as aff ecting 'public
order' - The only other off ence that could attract the enumerated category
of "acting in any manner prejudicial to the maintenance of public order"
and an order of preventive detention, if at all, is the stray incident where the
Detenu has been charged u/s. 353, IPC and where the police has not even
contemplated an arrest u/s. 41 of the Cr.PC - On an overall consideration
of the circumstances, the existing legal framework for maintaining law and
order is suffi cient to address like off ences under consideration, which the
Commissioner anticipates could be repeated by the Detenu if not detained
- The order of detention is, thus, indefensible. [Paras 29, 39 and 40]
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
Off enders, Food Adulteration Off enders, Fake Document Off enders,
Scheduled Commodities Offenders, Forest Offenders, 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 - Application of mind in the order of detention
dated 24.03.2023 - Proper or not:
Held: The Detenu was earlier preventively detained under the Act
vide order of detention dated 04.03.2021, since quashed by the High Court
by its order dated 16.08.2021 - The Commissioner stated that the present
order of detention is based only on 5 (fi ve) out of these 9 (nine) crimes
(years 2022-2023), which are alleged to show that the Detenu's activities
are "prejudicial to the maintenance of public order, apart from disturbing
peace and tranquillity in the area" - The Commissioner sought to proj

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CASE DETAILS
AMEENA BEGUM
v.
THE STATE OF TELANGANA & ORS.
(Criminal Appeal No. 2706 of 2023)
SEPTEMBER 04, 2023
[SURYA KANT AND DIPANKAR DATTA, JJ.]
HEADNOTES
Issue for consideration: An order of detention dated 24.03.2023
was passed by the Commissioner of Police against appellant's husband.
Whether the alleged acts of commission for which the Detenu has been kept
under detention are prejudicial to 'public order' and whether all relevant
circumstances were considered or whether extraneous factors weighed in
the mind of the detaining authority leading to the conclusion that the Detenu
is a habitual off ender and for prevention of further crimes by him, he ought
to be detained.
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
Off enders, Food Adulteration Off enders, Fake Document Off enders,
Scheduled Commodities Offenders, Forest Offenders, Gaming
Off enders, Sexual Off enders, Explosive Substances Off enders, Arms
Off enders, Cyber Crime Off enders and White Collar or Financial
Offenders Act 1986 - During the years 2022 and 2023, in quick
succession, appellant's husband had committed 9 (nine) more off ences
and 5 (fi ve) FIRs were registered under various sections 186, 189, 353,
504, 420, 384, 354, 420, 323, 392, 195A of IPC - An order of detention
dated 24.03.2023 was passed - Propriety:
Held: The order of detention impugned failed to diff erentiate between
off ences which create a "law and order" situation and which prejudicially
aff ect or tend to prejudicially aff ect "public order" - Even if the off ences
[2023] 11 S.C.R. 958 : 2023 INSC 788
958
959
referred to in the Detention Order, alleged to have been committed by the
Detenu have led to the satisfaction being formed, still the same are separate
and stray acts aff ecting private individuals and the repetition of similar such
acts would not tend to aff ect the even fl ow of public life - The off ence in
respect of the minor girl did exercise consideration of the Court for some
time but it was noted that the Detenu was not arrested because of an order
passed by the High Court on an application u/s. 438 of the Cr.PC. - Even
otherwise, the gravity of the off ences alleged in Arun Ghosh case was
higher in degree, yet, the same were not considered as aff ecting 'public
order' - The only other off ence that could attract the enumerated category
of "acting in any manner prejudicial to the maintenance of public order"
and an order of preventive detention, if at all, is the stray incident where the
Detenu has been charged u/s. 353, IPC and where the police has not even
contemplated an arrest u/s. 41 of the Cr.PC - On an overall consideration
of the circumstances, the existing legal framework for maintaining law and
order is suffi cient to address like off ences under consideration, which the
Commissioner anticipates could be repeated by the Detenu if not detained
- The order of detention is, thus, indefensible. [Paras 29, 39 and 40]
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
Off enders, Food Adulteration Off enders, Fake Document Off enders,
Scheduled Commodities Offenders, Forest Offenders, 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 - Application of mind in the order of detention
dated 24.03.2023 - Proper or not:
Held: The Detenu was earlier preventively detained under the Act
vide order of detention dated 04.03.2021, since quashed by the High Court
by its order dated 16.08.2021 - The Commissioner stated that the present
order of detention is based only on 5 (fi ve) out of these 9 (nine) crimes
(years 2022-2023), which are alleged to show that the Detenu's activities
are "prejudicial to the maintenance of public order, apart from disturbing
peace and tranquillity in the area" - The Commissioner sought to project
that he ordered detention based on the said 5 (fi ve) FIRs, indication of
the past off ences allegedly committed by the Detenu - However, with the
AMEENA BEGUM v. THE STATE OF TELANGANA
& ORS.
960
SUPREME COURT REPORTS
[2023] 11 S.C.R.
quashing of the order of detention dated 04.03.2021 by the High Court and
such direction having attained fi nality, it defi es logic why the Commissioner
embarked on an elaborate narration of past off ences, which are not relevant
to the grounds of the present order of detention - Since the aforesaid order
of the High Court went unchallenged and is, thus, binding upon the parties,
it was not open to the Commissioner to refer to the very same antecedent
off ences again in the Detention Order under challenge - There was no direct
nexus or link with the immediate need to order detention and there were
extraneous considerations in the Detention Order. [Paras 43, 46 and 48]
Preventive detention - Ordinary criminal law and extraordinary
measure of law of preventive detention:
Held: In the instant case, it is neither the case of the respondents that
the Detenu had not complied with the terms of the notice issued u/s. 41-A
of the Cr. PC, nor has it been alleged that the conditions of bail had been
violated by the Detenu - It is pertinent to note that in the three criminal
proceedings where the Detenu had been released on bail, no applications for
cancellation of bail had been moved by the State - In the light of the same,
the provisions of the Act, which is an extraordinary statute, should not have
been resorted to when ordinary criminal law provided suffi cient means to
address the apprehensions leading to the impugned Detention Order - There
may have existed suffi cient grounds to appeal against the bail orders, but
the circumstances did not warrant the circumvention of ordinary criminal
procedure to resort to an extraordinary measure of the law of preventive
detention. [Para 51]
Preventive detention - Guidance for detaining authorities - Order
to be in plain and simple language:
Held: There is no requirement in law of orders of detention being
expressed in language that would normally be considered elegant or artistic
- An order of detention, which is capable of comprehension, has to precisely
set forth the grounds of detention without any vagueness - The substance of
the order and how it is understood by the detenu determines its nature - An
order in plain and simple language providing clarity of how the subjective
satisfaction was formed is what a detenu would look for, since the detenu
has a right to represent against the order of detention and claim that such
order should not have been made at all. [Para 49]
961
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
Off enders, Food Adulteration Off enders, Fake Document Off enders,
Scheduled Commodities Offenders, Forest Offenders, 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 - Role of the Advisory Board and the Government
in the period of detention:
Held: It is one thing to say that the Advisory Board has expressed an
opinion that there is suffi cient cause for the detention and, therefore, the
detention has been continued; yet, it is quite another thing to say that the
detention should continue for the maximum permissible period - In the
light of sub-section (2) of section 11 read with sub-section (1) of section 12
of the Act, the period for which the detention should continue is left to be
specifi ed by the Government with the stipulation in section 13 thereof that
the maximum period shall be 12 (twelve) months from the date of detention
- This appears on a plain reading of the relevant statutory provisions - The
duration for which a detenu is to be kept in detention is for the detaining
authority to decide and not the Advisory Board - The period of detention and
the terminal point has, therefore, to be decided by the Government. [Para 58]
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
Off enders, Food Adulteration Off enders, Fake Document Off enders,
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 term "maximum period" in s.13 and continuing detention:
Held: The very term "maximum period" in section 13 vests the
Government with discretion, allowing it to be exercised while considering
whether the detention is to be continued for the maximum period of 12
(twelve) months or any lesser period - The period of detention ought to
necessarily vary depending upon the facts and circumstances of each case
and cannot be uniform in all cases - The objective sought to be fulfi lled in
AMEENA BEGUM v. THE STATE OF TELANGANA
& ORS.
962
SUPREME COURT REPORTS
[2023] 11 S.C.R.
each case, whether is sub-served by continuing detention for the maximum
period, ought to bear some refl ection in the order of detention; or else, the
Government could be accused of unreasonableness and unfairness. [Paras
63 and 70]
Preventive detention - Judicial reviewability - The Courts to
test the legality of orders of preventive detention, when called upon to
examine the same :
Held: In the circumstances of a given case, a Constitutional Court
when called upon to test the legality of orders of preventive detention
would be entitled to examine whether: (i) the order is based on the requisite
satisfaction, albeit subjective, of the detaining authority, for, the absence of
such satisfaction as to the existence of a matter of fact or law, upon which
validity of the exercise of the power is predicated, would be the sine qua
non for the exercise of the power not being satisfi ed; (ii) in reaching such
requisite satisfaction, the detaining authority has applied its mind to all
relevant circumstances and the same is not based on material extraneous
to the scope and purpose of the statute; (iii) power has been exercised
for achieving the purpose for which it has been conferred, or exercised
for an improper purpose, not authorised by the statute, and is therefore
ultra vires; (iv) the detaining authority has acted independently or under
the dictation of another body; (v) the detaining authority, by reason of
self-created rules of policy or in any other manner not authorized by the
governing statute, has disabled itself from applying its mind to the facts of
each individual case; (vi) the satisfaction of the detaining authority rests
on materials which are of rationally probative value, and the detaining
authority has given due regard to the matters as per the statutory mandate;
(vii) the satisfaction has been arrived at bearing in mind existence of a
live and proximate link between the past conduct of a person and the
imperative need to detain him or is based on material which is stale; (viii)
the ground(s) for reaching the requisite satisfaction is/are such which an
individual, with some degree of rationality and prudence, would consider
as connected with the fact and relevant to the subject-matter of the inquiry
in respect whereof the satisfaction is to be reached; (ix) the grounds on
which the order of preventive detention rests are not vague but are precise,
pertinent and relevant which, with suffi cient clarity, inform the detenu
963
the satisfaction for the detention, giving him the opportunity to make a
suitable representation; and (x) the timelines, as provided under the law,
have been strictly adhered to. [Para 25]
Constitution of India - Preventive detention - Reckless invocation
of:
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.
AMEENA BEGUM v. THE STATE OF TELANGANA
& ORS.
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
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.
AMEENA BEGUM v. THE STATE OF TELANGANA
& ORS. [DIPANKAR DATTA, J.]
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
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
AMEENA BEGUM v. THE STATE OF TELANGANA
& ORS. [DIPANKAR DATTA, J.]
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
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
5
AIR 1950 SC 27
6
AIR 1970 SC 564
AMEENA BEGUM v. THE STATE OF TELANGANA
& ORS. [DIPANKAR DATTA, J.]
970
SUPREME COURT REPORTS
[2023] 11 S.C.R.
and thereby makes it easy for successors to evolve the dynamic facets of
the Fundamental Rights enshrined in the Constitution.
13. This Court in Shibban Lal Saksena vs. State of Uttar Pradesh7
speaking through Hon'ble B.K. Mukherjea, J. (as the Chief Justice then was)
quashed an order of preventive detention under the Detention Act reasoning
that if one of the two grounds for ordering detention was illegal, the order
of detention could not survive on the other ground. Law was laid down in
the following words:
"8. The fi rst contention raised by the learned counsel raises, however,
a somewhat important point which requires careful consideration.
It has been repeatedly held by this Court that the power to issue a
detention order under Section 3 of the Preventive Detention Act
depends entirely upon the satisfaction of the appropriate authority
specifi ed in that section. The suffi ciency of the grounds upon which
such satisfaction purports to be based, provided they have a rational
probative value and are not extraneous to the scope or purpose of the
legislative provision cannot be challenged in a court of law, except
on the ground of malafi des. A court of law is not even competent to
enquire into the truth or otherwise of the facts which are mentioned
as grounds of detention in the communication to the detenue under
Section 7 of the Act. What has happened, however, in this case is
somewhat peculiar. The Government itself in its communication dated
13-3-1953, has plainly admitted that one of the grounds upon which
the original order of detention was passed is unsubstantial or nonexistent and cannot be made a ground of detention. The question is,
whether in such circumstances the original order made under Section
3(1)(a) of the Act can be allowed to stand. The answer, in our opinion,
can only be in the negative. The detaining authority gave here two
grounds for detaining the petitioner. We can neither decide whether
these grounds are good or bad, nor can we attempt to assess in what
manner and to what extent each of these grounds operated on the
mind of the appropriate authority and contributed to the creation of
the satisfaction on the basis of which the detention order was made.
7
AIR 1954 SC 179
971
To say that the other ground, which still remains, is quite suffi cient
to sustain the order, would be to substitute an objective judicial test
for the subjective decision of the executive authority which is against
the legislative policy underlying the statute. In such cases, we think,
the position would be the same as if one of these two grounds was
irrelevant for the purpose of the Act or was wholly illusory and this
would vitiate the detention order as a whole. ***"
14. In Rameshwar Shaw vs. District Magistrate8, a Constitution Bench
speaking through Hon'ble P.B. Gajendragadkar, J. (as the Chief Justice then
was) in course of interdicting an order of detention passed under section 3
of the Detention Act held as follows:
"7. There is also no doubt that if any of the grounds furnished to the
detenu are found to be irrelevant while considering the application of
clauses (i) to (iii) of Section 3(1)(a) and in that sense are foreign to
the Act, the satisfaction of the detaining authority on which the order
of detention is based is open to challenge and the detention order
liable to be quashed. Similarly, if some of the grounds supplied to the
detenu are so vague that they would virtually deprive the detenu of his
statutory right of making a representation that again may introduce a
serious infi rmity in the order of his detention. If, however, the grounds
on which the order of detention proceeds are relevant and germane to
the matters which fall to be considered under Section 3(1)(a), it would
not be open to the detenu to challenge the order of detention by arguing
that the satisfaction of the detaining authority is not reasonably based
on any of the said grounds.
8. It is, however, necessary to emphasise in this connection that though
the satisfaction of the detaining authority contemplated by Section 3(1)
(a) is the subjective satisfaction of the said authority, cases may arise
where the detenu may challenge the validity of his detention on the
ground of mala fi des and in support of the said plea urge that along
with other facts which show mala fi des the Court may also consider
his grievance that the grounds served on him cannot possibly or
rationally support the conclusion drawn against him by the detaining
8
AIR 1964 SC 334
AMEENA BEGUM v. THE STATE OF TELANGANA
& ORS. [DIPANKAR DATTA, J.]
972
SUPREME COURT REPORTS
[2023] 11 S.C.R.
authority. It is only in this incidental manner and in support of the plea
of mala fi des that this question can become justiciable; otherwise the
reasonableness or propriety of the said satisfaction contemplated by
Section 3(1)(a) cannot be questioned before the Courts."
15. In his Counter Affi davit (at pgs. 10 and 11) to the special leave
petition, the Commissioner referred to, and extracted a passage from
paragraph 8 of the decision of this Court in Khudiram Das vs. The State
of West Bengal9, wherein a Bench of 4 (four) Hon'ble Judges of this Court
was examining a challenge to an order of detention passed under section 3
of the Maintenance of Internal Security Act, 1971 ("MISA", hereafter) by a
district magistrate. We consider it appropriate to notice not only paragraph
8 of the decision rendered by Hon'ble P.N. Bhagwati, J. (as His Lordship
then was) in its entirety but also paragraph 9, reading as follows:
"8. Now it is clear on a plain reading of the language of sub-sections
(1) and (2) of Section 3 that the exercise of the power of detention
is made dependent on the subjective satisfaction of the detaining
authority that with a view to preventing a person from acting in a
prejudicial manner, as set out in sub-clauses (i), (ii) and (iii) of clause
(a) of sub-section (1), it is necessary to detain such person. The words
used in sub-sections (1) and (2) of Section 3 are 'if satisfi ed' and they
clearly import subjective satisfaction on the part of the detaining
authority before an order of detention can be made. And it is so
provided for a valid reason which becomes apparent if we consider
the nature of the power of detention and the conditions on which it can
be exercised. The power of detention is clearly a preventive measure.
It does not partake in any manner of the nature of punishment. It is
taken by way of precaution to prevent mischief to the community.
Since every preventive measure is based on the principle that a person
should be prevented from doing something which, if left free and
unfettered, it is reasonably probable he would do, it must necessarily
proceed in all cases, to some extent, on suspicion or anticipation
as distinct from proof. Patanjali Sastri, C.J. pointed out in State of
Madras v. V.G. Row [(1952) 1 SCC 410 : AIR 1952 SC 196 : 1952
9
(1975) 2 SCC 81
973
SCR 597] that preventive detention is 'largely precautionary and based
on suspicion' and to these observations may be added the following
words uttered by the learned Chief Justice in that case with reference
to the observations of Lord Finlay in Rex v. Halliday [1917 AC 260]
namely, that 'the court was the least appropriate tribunal to investigate
into circumstances of suspicion on which such anticipatory action
must be largely based'. This being the nature of the proceeding, it is
impossible to conceive how it can possibly be regarded as capable
of objective assessment. The matters which have to be considered
by the detaining authority are whether the person concerned, having
regard to his past conduct judged in the light of the surrounding
circumstances and other relevant material, would be likely to act in a
prejudicial manner as contemplated in any of sub-clauses (i), (ii) and
(iii) of clause (1) of sub-section (1) of Section 3, and if so, whether it is
necessary to detain him with a view to preventing him from so acting.
These are not matters susceptible of objective determination and they
could not be intended to be judged by objective standards. They are
essentially matters which have to be administratively determined for
the purpose of taking administrative action. Their determination is,
therefore, deliberately and advisedly left by the Legislature to the
subjective satisfaction of the detaining authority which by reason of
its special position, experience and expertise would be best fi tted to
decide them. It must in the circumstances be held that the subjective
satisfaction of the detaining authority as regards these matters
constitutes the foundation for the exercise of the power of detention
and the Court cannot be invited to consider the propriety or suffi ciency
of the grounds on which the satisfaction of the detaining authority is
based. The Court cannot, on a review of the grounds, substitute its
own opinion for that of the authority, for what is made a condition
precedent to the exercise of the power of detention is not an objective
determination of the necessity of detention for a specifi ed purpose but
the subjective opinion of the detaining authority, and if a subjective
opinion is formed by the detaining authority as regards the necessity
of detention for a specifi ed purpose, the condition of exercise of the
power of detention would be fulfi lled. This would clearly show that
the power of detention is not a quasi-judicial power.
AMEENA BEGUM v. THE STATE OF TELANGANA
& ORS. [DIPANKAR DATTA, J.]
974
SUPREME COURT REPORTS
[2023] 11 S.C.R.
9. But that does not mean that the subjective satisfaction of the
detaining authority is wholly immune from judicial reviewability. The
courts have by judicial decisions carved out an area, limited though it
be, within which the validity of the subjective satisfaction can yet be
subjected to judicial scrutiny. The basic postulate on which the courts
have proceeded is that the subjective satisfaction being a condition
precedent for the exercise of the power conferred on the Executive,
the Court can always examine whether the requisite satisfaction is
arrived at by the authority : if it is not, the condition precedent to the
exercise of the power would not be fulfi lled and the exercise of the
power would be bad. There are several grounds evolved by judicial
decisions for saying that no subjective satisfaction is arrived at by the
authority as required under the statute. The simplest case is whether
the authority has not applied its mind at all; in such a case the authority
could not possibly be satisfi ed as regards the fact in respect of which
it is required to be satisfi ed. Emperor v. Shibnath Bannerji [AIR 1943
FC 75 : 1944 FCR 1 : 45 Cri LJ 341] is a case in point. Then there may
be a case where the power is exercised dishonestly or for an improper
purpose : such a case would also negative the existence of satisfaction
on the part of the authority. The existence of 'improper purpose', that
is, a purpose not contemplated by the statute, has been recognised
as an independent ground of control in several decided cases. The
satisfaction, moreover, must be a satisfaction of the authority itself,
and therefore, if, in exercising the power, the authority has acted under
the dictation of another body as the Commissioner of Police did in
Commissioner of Police v. Gordhandas Bhanji [1951 SCC 1088 : AIR
1952 SC 16 : 1952 SCR 135] and the offi cer of the Ministry of Labour
and National Service did in Simms Motor Units Ltd. v.