First of all, the word detention implies that when due to some criminal charges, a state or private citizen lawfully hold a person by removing his freedom for that time.
Detention is of two types:
1.Punitive detention: in this type of detention, the person is arrested by the police after committing the any offence. And in this type of detention, trials will be held in the court.
2. Preventive detention: if police has any suspicion on any person that he or she can cause threat to public order then the police can arrest such person under preventive detention.
So under section 151 of criminal procedure code, 1973, the police can arrest an individual without orders from a magistrate and without warrant if he gets any information that such person can commit any offence which is against the public order.
Protection against detention
Article 22 of the constitution deals with the protection against detention in certain cases:
According to 22(1), no person who is arrested shall be detained in custody without being informed and with 22(2) every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty for hours of such arrest.
22(3) Nothing in clauses (1) and (2) shall apply to any person who for the time being is an enemy alien and to any person who arrested or detained under any law providing for preventive detention.
22(4) no law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless an advisory board consisting of judges of high court opine so.
Current case of prevention detention
Supreme court was dealing with a petition filed by one banka sneha sheela, wife of banka ravikanth, who has been in detention under the telengna prevention of dangerous activities act 1986. In this cs, banka was charge sheeted by police in multiple cases of cheating, criminal breach of trust and criminal intimidation under sections 420, 406 and 506 of the Indian penal code. However, banka was able to get anticipatory bails in these cases. After that on orders of the cyberabad police commissioner in September in September 2020 he was detained under preventive detention. And also he was in preventive detention since last 10 months. Telangana high court had earlier upheld the detention order.
On this, supreme court held that preventive detention, the dreaded power of the state to restrain a person without trial “ could be used only to prevent public disorder”. The state should not arbitrarily resort to “preventive detention” to deal with all and sundry “law and order” problems, which could be dealt with by the ordinary laws of the country.
Taking cue from famous madhu limaye case 1970, the SC said that public order is defined as “harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave widespread danger to life or public health.” Judges categorically ruled that “ law and order, public order, security of state are different from one another”.
Preventive detention mist fall within the four corners of article 21(protection of life and liberty) read with article 22 and the statute in question for public order to be disturbed, there must in turn be public disorder, mere contravention of law before it can be said to affect the community or the public at large.
Preventive detention a necessary evil only to prevent public disorder: supreme court
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