Preventive Detention On Mere Suspicion 'Draconian', Power Not Meant To Arbitrarily Enforce 'Police Rule': Punjab & Haryana High Court

The Punjab and Haryana High has made it clear that the preventive detention order should not be passed to enforce 'Police Rule' on mere suspicion and credible likelihood of the detenu's involvement in crimes must be established.

The observation was made while examining the legality of preventive detention orders passed under Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 on the ground that the petitioners are involved in other cases registered under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

Justice Vinod S. Bhardwaj said,

"the power of preventive detention is not just an empowering provision with no responsibility or checks. When the power is immense, invocation of the power needs to be justified as per the exceptional circumstances and to establish as to how only the mode of preventive detention is the only way forward. It is not a mode of enforcing Police rule on suspicion or heightened probabilities but for reasons beyond that and on credible likelihood of his involvement in another crime."

Such credibility may be required to be supported by some proximate and live link to an imminent involvement in another crime lack of such credible input and the proximate live link is likely to label the exercise of such power as excessive, arbitrary, draconian and liable to be set aside, the Court added.

Justice Bhardwaj highlighted even though the grounds for which preventive detention may be invoked may vary in statutes, however, the safeguards prescribed under the Constitution are in addition to the safeguards that may be provided under the respective statute.

The Court was hearing a batch of nine writ petition challenging the preventive detention order passed by the Haryana Government.

After hearing the submissions, the Court considered the question, "whether an order of preventive detention could have been passed solely on the basis of past involvement of the accused in the cases under the NDPS Act and formation of an opinion about the likelihood of the involvement of the suspect in further offences as well on the basis of the antecedents."

Reliance was placed on Apex Court's decision in Sushanta Kumar Banik Vs. State of Tripura & Ors, 2023 wherein it was held that unreasonable and unexplained delay in passing the order of detention from the date of the proposal can vitiate the detention order.

"The preventive detention is a serious invasion of personal liberty and the normal methods open to a person charged with commission of any offence to disprove the charge or to prove his innocence at the trial are not available to the person preventively detained and, therefore, in prevention detention jurisprudence whatever little safeguards the Constitution and the enactments authorizing such detention provide assume utmost importance and must be strictly adhered to,” said the Supreme Court.

Justice Bhardwaj said the satisfaction of the competent authority has to be seen on the basis of credible evidence and not just a mere apprehension and must be propelled by public interest.

"Besides, the proportionality of preventive detention also needs to be kept in mind along with the fact as to whether there is an effective alternate measure with the authority to seek the desired result but for adopting the course of preventive detention," the Court added.

For examining as to whether the satisfaction of an authority is formed on reasonable grounds, the Court is also required to see the relevant factors which may be essential for giving rise to reasonable grounds and it usually refers to a standard suggesting rational basis or credible evidence to believe that the detenue is likely to engage in such activity, the judge said.

The Court highlighted that the fact which may be crucial for propelling a satisfaction include the prior criminal record/past involvement, the credibility of the witness/informant, the existence of physical evidence in the form of seizure of any narcotic etc. "The assessment of the flight risk, public safety and tampering with evidence as also input from the intelligence and surveillance."

Perusing Section 3 of the 1988 Act, the Court said, "the competent authority should be satisfied with respect to the involvement of the person and with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, deem it necessary to direct detention."

The subsequent part necessitates that as and when an order of detention is made, the same shall be forwarded to the Central Government within a period of ten days and that communication of the grounds of detention to the detenue shall be made within a period of five days from the date of detention, the judge added.

It explained further that the appropriate Government is required to make a reference to the Advisory Board within a period of five weeks of the detention and the Advisory Board thereafter has a period of six weeks (a total of 11 weeks from the date of order of detention) to prepare its report specifying its opinion as to whether there is a sufficient cause for detention or not.

Preventive Detention Not Mode Of Punishment 

 The Court said, the power of preventive detention is not a mode of infliction of punishment and that the proximity of the cause to the past conduct and the imperative need to detain a person has attained vital significance.

Where the satisfaction of the authority is not based upon a live and proximate link between the past conduct of a person and the imperative need to detain, such detention is deemed as based on a stale cause and the orders of preventive detention held to be bad, it added.

"Similarly, where there has been an inordinate delay in passing the order of preventive detention from the date when the proposal was mooted, such order of detention has also been held to be bad," it observed.

The Court opined a Court of law thus is required to see whether the necessary tests, parameters and circumstances justifying need for preventive detention exist or not.

It concluded that where any of the safeguards are found lacking, the fundamental rights guaranteed to a citizen would over-ride such order being in violation of the safeguards and not fulfilling the cardinal test of authority in law.

 Mr. Parminder Singh Sekhon, Advocate and Mr. Rajdeep Singh Gill, Advocate for the petitioner in CWP-22223-2023.

Mr. Akshit Mehta, Advocate for the petitioner in CWP-28451-2023.

Mr. Vansh Malhotra, Advocate for the petitioner(s) in CWP-2418-2024 and CWP-2450-2024.

Mr. Naveen, Advocate for Mr. Sanjiv Gupta, Advocate for the petitioner in CWP-6139-2024.

Mr. Manish Verma, Advocate for the petitioner in CWP-28656-2023.

Mr. Sahir Singh Virk, Advocate and Mr. V.B. Godara, Advocate for the petitioner in CWP-6841-2024 

Mr. Kartar Singh, Advocate for the petitioner in CWP-4936-2024.

Mr. Vivek Saini, Addl. A.G., Haryana.

Ms. Alisha Soni, Advocate for Mr. Vishal Garg, Advocate for respondent No.2.

Case Title: Sadha Ram @ Bhajna Ram v. State of Haryana and Others

Citation: 2024 LiveLaw (PH) 245

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