‘Preventive detention based on capricious exercise of powers must be nipped in bud’

Observing that preventive detention is a draconian measure and any such move based on a capricious or routine exercise of powers must be nipped in the bud, the Supreme Court has set aside a Telangana High Court order rejecting a detenu’s appeal.

A bench headed by Chief Justice of India D Y Chandrachud on Thursday said the essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it.

“Inability on the part of the state’s police machinery to tackle the law-and-order situation should not be an excuse to invoke the jurisdiction of preventive detention,” the bench also comprising Justice J B Pardiwala and Justice Manoj Misra said.

“Preventive detention being a draconian measure, any order of detention as a result of a capricious or routine exercise of powers must be nipped in the bud. It must be struck down at the first available threshold,” the top court said.

The appellant was arrested under the Telangana Prevention of Dangerous Activities Act of 1986 on the order of the Rachakonda police commissioner in Telangana on September 12 last year. Four days later, the Telangana High Court rejected the man’s petition, assailing the detention order.

The Supreme Court, in its recent order, said the law is well settled that the power under any enactment relating to preventive detention has to be exercised with great care, caution and restraint.

It said that the pendency of prosecution is no bar to an order of preventive detention and an order of preventive detention is also not a bar to prosecution.

“We are of the view that mere registration of the two FIRs for the alleged offences of robbery etc. could not have been made the basis to invoke the provisions of the Act 1986 for the purpose of preventively detaining the appellant herein on the assumption that he is a “GOONDA” as defined under Section 2(g) of the Act 1986.

“What has been alleged against the appellant detenu could be said to have raised the problems relating to law and order but we find it difficult to say that they impinged on public order,” the bench said.

It added the court has time and again reiterated that to bring the activities of a person within the

CJI says the essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it