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Breaking: Preventive Detention cannot be resorted to when sufficient remedies are available: Supreme Court

Case;

V. Shantha v. State of Telangana and Ors 2017 SCC OnLine SC 623

Fact;

The appellant assails the order of preventive detention of her husband dated 17.10.2016, passed by Respondent No. 2, under the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (Act No. 1 of 1986) (Telangana Adaptation) Order, 2015, (G.O.Ms. No. 124, Dated17.03.2015) (hereinafter referred to as the ‘Act’).

http://intolegalworld.com/2017/01/21/check-reasonableness-fundamental-right-subjective-satisfaction-executive/

Arguments

Ms. Prerna Singh, learned counsel for the appellant, submits that an order of preventive detention is a serious matter affecting the liberty of the citizen. It cannot be resorted to when sufficient remedies are available under the general laws of the land for any omission or commission under such laws. The detenu was already being prosecuted under the penal code and the Seeds Act. Reliance was placed on Rekha v. State of Tamil Nadu, (2011) 5 SCC 244.

It was next submitted that the detenu was already in custody in two other cases. The order of detention does not consider the same, setting out special reasons for an order of preventive detention, with regard to a person already in custody. The reasoning that there was every likelihood of his being released on bail, in view of an earlier bail order in a similar case, is flawed, as the detenu has not even filed any application for bail in these two cases.

Ms. Bina Madhavan, learned counsel for the respondents, opposing the application, submits that the grounds of detention cannot be seen simpliciter as individual wrongs amenable to ordinary laws. It has the potential to disturb maintenance of public order. More than one farmer had lodged complaints with regard to the spurious seeds sold to them. Wrongful loss had been caused to the poor farmers, and the detenu had acquired illegal gains at their expense.

The Judgment of the Court was delivered by

Navin Sinha, J.— Leave granted.

The Apex Court observed that the offences alleged to have been committed by the appellant are such as to attract punishment under the Andhra Pradesh Prohibition Act, but that in our view has to be done under the said laws and taking recourse to preventive detention laws would not be warranted. Preventive detention involves detaining of a person without trial in order to prevent him/her from committing certain types of offences. But such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes which the detenu may have committed. After all, preventive detention in most cases is for a year only and cannot be used as an instrument to keep a person in perpetual custody without trial.

In view of the aforesaid discussion, it is not necessary to consider the second submission on behalf of the petitioner with regard to the lack of justification for an order of preventive detention with regard to a detenu already in custody.

The appeal is allowed, and the order of preventive detention dated 17.10.2016 is held to be unsustainable and is set aside. The detenu is ordered to be set at liberty forthwith unless wanted in any other case. This order shall be without prejudice to the prosecution of the detenu under the ordinary laws of the land.

 

 

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