V. Shantha v. State of Telangana and Ors. - (Supreme Court) (24 May 2017)

Power to detain being statutory in nature, its exercise has to be within limitations of statute

MANU/SC/0659/2017

Criminal

Appellant assails order of preventive detention of her husband, passed by Respondent No. 2, under Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (Act). Appellant submits that, an order of preventive detention is a serious matter affecting liberty of citizen. It cannot be resorted to when sufficient remedies are available under general laws of land for any omission or commission under such laws. Detenu was already being prosecuted under penal code and Seeds Act.

Order of preventive detention has been made under Section 3 (1) and (2) read with Section 2 (a) and (b) of Act. Section 3 of Act, empowers Government if satisfied, with respect to a "Goonda" to detain such person with view to preventing him from acting in any manner prejudicial to maintenance of public order. Section 13 of Act, provides for a maximum period of detention for twelve months. If order of preventive detention is sustainable, detenu will continue in custody, without opportunity to move for bail, till 17th October, 2017.

An order of preventive detention, though based on subjective satisfaction of detaining authority, is nonetheless a serious matter, affecting life and liberty of citizen under Articles 14, 19, 21 and 22 of Constitution of India. Power being statutory in nature, its exercise has to be within limitations of statute, and must be exercised for purpose power is conferred. If power is misused, or abused for collateral purposes, and is based on grounds beyond statute, takes into consideration extraneous or irrelevant materials, it will stand vitiated as being in colourable exercise of power.

Detenu was owner of Laxmi Bhargavi Seeds, District distributor of Jeeva Aggri Genetic Seeds. Three FIRs were lodged against detenu and Ors. under Sections 420, 120-B, 34 of Indian Penal Code, 1860 and Sections 19, 21 of Seeds Act, 1966. It was alleged that, chilli seeds sold were spurious, as they did not yield sufficient crops, thus causing wrongful loss to farmers, and illegal gains to accused. Whether seeds were genuine or not extent of yield, are matters to be investigated in FIRs. Section 19 of Seeds Act, provides for penalty by conviction and sentence also. Likewise, Section 20 of Seeds Act, provides for forfeiture. Sufficient remedies for offence alleged were, therefore, available and had been invoked also under ordinary laws of land for the offence alleged.

Order of preventive detention passed against detenu states that, his illegal activities were causing danger to poor and small farmers and their safety and financial well-being. Recourse to normal legal procedure would be time consuming, and would not be an effective deterrent to prevent detenu from indulging in further prejudicial activities in business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke provisions of preventive detention Act as an extreme measure to insulate the society from his evil deeds. Rhetorical incantation of words "goonda" or "prejudicial to maintenance of public order" cannot be sufficient justification to invoke draconian powers of preventive detention. To classify detenu as a "goonda" affecting public order, because of inadequate yield from chilli seed sold by him and prevent him from moving for bail even is a gross abuse of statutory power of preventive detention. Grounds of detention are ex-facie extraneous to Act. Order of preventive detention is held to be unsustainable and is set aside appeal is allowed.

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