Personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law.
|Case name:||Rekha V/s State Of T. Nadu Tr. Sec. To Govt.& Anr.|
|Case number/Citation:||Criminal Appeal No(S). 755 Of 2011|
|Court:||Supreme Court of India|
|Bench:||Hon’ble Justice Markandey Katju; Hon’ble Surinder Singh Nijjar, Hon’ble Justice Gyan Sudha Misra|
|Decided on:||5th April, 2011|
|Relevant Act/Sections:||Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, and Slum Grabbers and Video Pirates Act, 1982; Article 22, 21 of Constitution of India|
- BRIEF FACTS AND PROCEDURAL HISTORY:
- The detenu in this case, Ramakrishnan had been kept by a detainment order dated 08.04.2010 passed as per the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Medicate- wrongdoers, Timberland Wrongdoers, Goondas, Shameless Activity Wrongdoers, Sand Guilty parties, and Ghetto Grabbers and Video Privateers Act, 1982, on the affirmation that he was offering terminated drugs after altering with the names and printing new names appearing them as non-expired drugs.
- The habeas corpus appeal recorded by the spouse of the detenu before the Madras High Court challenging the said detainment order had been rejected by the reviled order dated 23.12.2010. Consequently, this appeal.
- The police officer who registered the FIR mentioned about how the relatives of the detenu had been looking for ways for his bail and how in various similar cases bails were granted by the Courts after a lapse of time.
- Finding the submission of the police officer incomplete and unjustified the court decided to take up the appeal as the police officers made no mention of the similar cases as mentioned above. Neither the date of the alleged bail orders nor the bail application number, nor whether the bail orders were passed in respect of the co-accused on the same case, nor whether the bail orders were passed in respect of other co- accused in cases on the same footing as the case of the accused.
- Therefore, the appeal was taken up.
- ISSUE BEFORE THE COURT:
- Was the detention order as passed by the police officer justified or not?
- Whether the Madras High Court was right in rejecting the appeal or not?
- RATIO OF THE COURT:
- Making kind perusal of the statement as provided to the court, the court referred to para 4 of the same and alleged that no details had been mentioned by the police officer about the alleged similar cases in which bail was allegedly granted by the concerned court. On this particular ground, the court felt that this shall be sufficient enough to declare the detention order as impaired.
- Making reference to the following cases- T.V. Sravanan alias S.A.R. Prasana Venkatachaariar Chaturvedi Vs. State through Secretary and Anr. ; A. Shanthi (Smt.) Vs. Govt. of T.N. and Ors. And Rajesh Gulati Vs. Govt. of NCT of Delhi and Anr. , the court observed that, if no bail application was pending and the detenue was already, in fact, in jail in a criminal case, the detention order under the preventive detention law is illegal.
- However, pointing out the flaws in the submission of the respondent authority about the missing details about the alleged bail orders in similar cases mentioning the date of the orders, the bail application number, whether the bail order was passed, the court went on stating that the detention order in question only contains ipse dixit regarding the alleged imminent possibility of the accused coming out on bail and there was no reliable material tothis effect. Hence, the detention order in question cannot be sustained.
- Further bringing attention to the constitutional provisions, the court stated that even if the detenu was already serving a criminal sentence, the detention order in question could still have been challenged on various grounds. Giving out examples of the same, the court stated that the act in question related to law and order and not public order, and there were not sufficient material facts on which the detention was passed or that it was mala fide or maybe that it wasn’t passed by government or any concerned authority.
- Stating the constitutional provisions, the court said Article 22(3)(b) of the Constitution of India which permits preventive detention is only an exception to Article 21 of the Constitution. Fundamental rights are meant for protecting the civil liberties of the people,and not to put them in jail for a long period without recourse to a lawyer and without a trial.
- Further pointing out that Article 22(1) of the Constitution makes it a fundamental right of a person detained to consult and be defended by a lawyer of his choice. However, Article 22(3) specifically excludes the applicability of clause (1) of Article 22to cases of preventive detention. Therefore, powers of preventive detention shall be applicable undervery narrow limits, else the liberty that is guaranteed to any citizen under Article 21 can becurbed.
- Referring to A.K. Roy Vs. Union of India (para 70), the court said Article 22(3)(b) cannot be read in isolation, but must be read along with Articles 19 and 21 .It is all very well to say that preventive detention is preventive not punitive. Further the court opined that the detention of Ramakrishnan was illegal and the ordinary law of the land was sufficient to deal with this situation in the light of charges against him.
- Very critically, the court further went on to state that there was nothing on the record to indicate whether the detaining authority was aware of the fact that the bail application of the accused was pending on the date when the detention order was passed on 08.04.2010. Thus, the detaining authority was not even aware whether a bail application of the accused was pending when he passed the detention order. Also, making it clear that no details of the alleged similar cases have been given. Hence, the detention order in question cannot be sustained.
- After this, Mr. Altaf Ahmed, learned senior counsel, further submitted that we are taking an over technical view of the matter, and we should not interfere with the preventive detention orders passed in cases where serious crimes have been committed. And thus, they do not agree.
- To this, the court stated that to prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical it may be it is, mandatory and vital as observed by Mr. Justice Douglas of the United States Supreme Court in Joint Anti-Fascist Refugee Committee Vs. McGrath, 341 US 123 at 179, “It is procedure that spells much of the difference between rule of law and rule of whim or caprice. Steadfast adherence to strict procedural safeguards is the main assurances that there will be equal justice under law.”
- Ending the entire justification for the judgement so passed, the court went on to state that “Personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law.”
- DECISION HELD BY COURT:
- Based on the above mentioned grounds, the appeal was allowed, the impugned order was set aside and the impugned detention order was quashed.
- However, it was cleared that this will not affect the criminal cases pending against the alleged accused.
- The concerned detenu in this appeal was released immediately, on the condition that he is not required in any other case.