Preventive detention cannot be invoked to solve ordinary law and order problems: Allahabad HC [Read Judgment]

The Allahabad High Court recently highlighted that orders of preventive detention can only be passed in cases involving a public order problem. Such measures cannot be resorted to for resolving ordinary law and order problems, held the Bench of Justices Shabihul Hasnain and Rekha Dikshit.

While quashing the an order of preventive detention under the National Security Act, 1980, the High Court observed that administrative authorities have, time and again, remained confused as to what would constituted a "law and order problem" and what constitutes a "public order problem. The Court proceeded to clarify that,

"For an act to fall within the category of public order problem it should be of the nature to disrupt the ordinary tempo of public life. Also, it should be beyond the capability of ordinary law to deal with the alleged activities..."

In view of the facts of the case, Court also observed that preventive detention powers cannot be casually invoked since they entail a violation of personal liberty.

The case at hand involved a preventive detention order passed in July this year, against a person accused of having shot an MLA. An FIR had also been registered over the incident under Sections 307, 504 and 506 of the Indian Penal Code and Section 7 of the Criminal Law Amendment Act.

The state argued that the MLA had been shot in view of his efforts to take on mining mafia in the state. The detainee, Prem Narayan, was accused of being part of this mafia.

Narayan, however, argued that the detention order had been passed on extraneous, absurd, false and motivated grounds, and that political pressure by the MLA played into the same. Appearing for the detainee, Advocate Anuj Pandey argued that there were CCTV visuals proving that it was in fact the detainee that was attacked, and not the other way around.

It was also pointed out that in May 2019, the High Court itself had directed that an inquiry first be undertaken under Regulation 107 of the UP Police Regulations into the claims made by Narayan.

However, without complying with this instruction, an order of preventive detention was passed against Narayan in July, prompting him to approach the High Court again by way of a Habeas Corpus plea.

The High Court, in turn, took note that in any case, there was no "public order problem" warranting the issuance of a preventive detention order.

"The facts and circumstances of the present case, especially, the changed version of the detaining authorities fall to establish that the alleged act was one threatening public order."

Further, the Bench also took critical note that the detaining authority appeared to have mechanically passed the order without applying an independent mind, and on the basis of a flawed report by the Sponsoring Authority.

"... in the reports so forwarded by the Sponsoring Authority, the petitioner has been referred as a hardened criminal and a mining mafia having a gang. The petitioner is a businessman and has never been booked under the Gangsters (Anti Social Activities) Act...

... The impugned detention order dated 03.07.2019 shows that there is no application of mind by the detaining authority and there is no subjective satisfaction and the detaining authority has merely acted on the basis of the reports of the Sponsoring Authority which admittedly contains false, irrelevant and non-existent facts."

Moreover, the Court also took note that the possibility that the detention order has been driven by political influence has also not been ruled out.

"...the possibility of the political influence leading to the passing of the detention order cannot be ruled out. Admittedly, the injured of the Case Crime No.334/2019 is a Member of Legislative Assembly."

In view of these observations, the Court proceeded to order the release of the detainee.

[Read the Judgment]