Preventive Detentions: Gauhati High Court Seeks Report From Prisons To Check If Anyone Detained Beyond Period Of 3 Months Without Confirmation Order

The Gauhati High Court recently directed the Assam State Legal Services Authority to seek a report from all prisons and take remedial measures regarding the status of detenues who are detained under the preventive detention laws beyond the period of three months from the date of initial order of detention without the order of confirmation passed by the Advisory Board.

The division bench of the Chief Justice Sandeep Mehta and Justice Mitali Thakuria sought a compliance report on the directions, while declaring illegal the custody of a detainee who was kept behind bars for a period of more than eight months without the initial detention order being confirmed. 

“Section 10 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (1988 Act) prescribes the situations in which a person/persons may be detained for a period longer than three months without obtaining the opinion of the Advisory Board. This section too, does not authorize detention of a person for a period beyond six months from the date of detention. Section 11 of the 1988 Act stipulates that the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of Section 10 do not apply and which has been confirmed under Section 9(f) shall be one year from the date of detention. Thus, under the scheme of the 1988 Act, the detaining authority is under an obligation to call for the report of the Advisory Board within the prescribed time frame (eleven weeks) and to issue an order of confirmation, within the period of three months as provided under Article 22(4) of the Constitution of India, failing which, the further detention of the detenu would be rendered totally illegal,” said the court.

The court was hearing a habeas corpus petition filed by the sister of the detenu against the detention order dated August 24, 2022 issued by the Commissioner & Secretary to the Government of Assam, Home & Political Department, by exercising powers under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 ( PITNDPS Act, 1988). The petitioner challenged the impugned detention order on various grounds, amongst others, including non-application of mind, non-supply of relevant documents and delay in disposal of the representations, etc.

It was submitted that no order of confirmation of the detention order was served to the detenu. The communication dated May 10, 2023 issued by the Under Secretary to the Government of Assam, Political (A) Department stated that the confirmation of detention order dated August 24, 2022 is under process in the Department.

The court said that Article 22(4) of the Constitution of India mandates that no law providing for preventive detention shall authorize the detention of a person for a longer period than three months, unless the Advisory Board has reported that there is sufficient cause for such detention.

It observed that once the report of the Advisory Board is received, the State Government is under an obligation to pass an order of confirmation or revocation, as the case may be, of the initial detention order and the said order must be issued within the period of three months.

“The situation in the case at hand is alarming to say the least because the detenu has been kept behind bars for a period of more than eight months without the initial detention order being confirmed. Every moment of custody of the detenu beyond the period of three months from the date of the initial order of detention without the order of confirmation being passed, amounts to illegal detention pure and simple,” the court said.

Thus, the court held that further detention of the detenu is illegal as being in gross contravention of the mandate of Article 22(4) of the Constitution of India.

Accordingly, the court directed to release the detenu from custody forthwith.

The Court further directed the State to pay a compensation of Rs. 50,000/- to the detenu for his grossly illegal detention for a period of more than nearly four and half months, after completion of the three months initial period.

Case Title: Mondira Das and Anr. v. The Union of India & 5 Ors

Click Here to Read/Download Judgment