'Preventive Detention Must Not Be Used As Added Tool To Curtail Judicial Decisions Allowing Bail': Calcutta High Court

The Calcutta High Court recently set aside an order of preventive detention passed under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988 (PITNDPS Act). Pursuant to the impugned order, the petitioner had been directed to be detained and kept in Malda Correction Home, Kolkata.

Proceedings under the PITNDPS Act had been initiated against the petitioner and other accused persons in connection with recovery of 384.21 kg of ganja on June 29, 2017 from a truck.

A Bench comprising Justices Rabindranath Samanta and Soumen Sen expressed strong reservations against the arbitrary exercise of powers to issue preventive detention orders.

"Preventive detention is an exceptional mechanism compromising on the personal liberty of individuals. Therefore, the legal qualification of preventive detention laws ought to be interpreted strictly and preventive detention should not be permissible unless it absolutely qualifies all the necessary legal facets. The Hon'ble Courts have acknowledged the gravity and repercussions of preventive detention laws. Preventive detention is a tool in isolation which operates to curtail a person's personal liberty. Preventive detention is more excessive than normal measures of arrest, hence preventive detention cannot be misconstrued to be a direct alternative to the normative criminal prosecution", the Bench observed.

The Court further emphasised that preventive detention must not be used as a tool to curtail judicial decisions allowing bail of a person.

"The object behind the order of preventive detention should not be to set at naught or render a judicial decision nugatory or otiose and if one is inclined to accept the contention of the detaining authority that such judicial order would not be relevant for preventive detention and notwithstanding existence of such order merely on suspicion an order of preventive detention could still be passed as it happened in this case, it would be in our view an act of over-reaching a judicial order and would sound a death knell of the sanctity of the judicial order and the very existence of judiciary as a sentinel on the qui vive", the Court opined further.

Background

In the instant case, the petitioner had been apprehended at Guwahati on June 29, 2017 in respect of consignment of 384.210 kg Ganja allegedly recovered from a truck and on the basis of the statement of two persons named Md. Rafe and P. Shyam Singh. Thereafter a non-bailable arrest warrant dated January 7, 2019 had been issued against the petitioner.

Subsequently, the petitioner was arrested in relation to the recovery of 391.4 kg of Ganja on the basis of the statement of one Imtiyas Khan whose statement had been recorded under Section 67 of the NDPS Act.

The NCB Guwahati had initiated the case initially against the co-accused persons- Md. Rafe and P. Shyam Singh on December 19, 2017. Thereafter a supplementary charge sheet had been filed against the petitioner on April 5, 2018 under the NDPS Act. Warrant of arrest was issued against the petitioner on May 2, 2018 and subsequently on June 7, 2019 another case that is the Kamrup Narcotic case was initiated against the petitioner.

On December 13, 2020 the petitioner was arrested in yet another case that is the Malda Narcotic case and was subsequently granted bail on December 21, 2020. Furthermore, on March 30, 2021 the petitioner submitted a bail bond to the Special Court in Malda. But later that day, the NCB Guwahati had prayed for 2 days' police remand for recording of statement and to produce the petitioner before the Kamrup Court.

Accordingly, the Special Court at Malda directed the Superintendent of Malda Correctional Home to take necessary steps for physical production of the petitioner before the Kamrup Court.

On the following day i.e. on March 31, 2021 the Special Court, Kamrup had recorded in its order that the Superintendent of Malda Correctional Home had sent a message stating that the Special Court, Malda had not accorded permission to hand over the accused to Guwahati police. Thereafter on April 1, 2021 the impugned detention order was passed.

Observations:

Pursuant to the perusal of the rival submissions, the Court at the outset opined that preventive detention acts as an anathema to liberty. It was further observed that personal liberty of an individual is 'precious, invaluable and to be jealously secured and protected'.

"The law of preventive detention operate harshly on the accused and, therefore, it should be strictly construed and should not be used merely to clip the wings of the accused who has involved in the criminal prosecution. Freedom from arbitrary arrest is a basic human right recognised over the years. This right has been preserved and respected whenever there has been cases of preventive detention unless there were compelling necessity or reasons", the Court observed further.

The Court further lamented that it is rather 'strange' that framers of our Constitution who were themselves subjected to preventive detention under the British forces were in favour of adopting such a legal provision.

"It may appear to be strange that amongst the loudest critics who were members of the independent movement and might have suffered preventive detention in British India without even being tried or convicted, however, were in favour of inserting preventive detention in the Constitution and thereafter in various legislation authorising detention without trial", the Court remarked.

However, it was acknowledged that such a 'sweeping power given to the Executive to arrest and detain a person for months together without even seeking the confirmation of the advisory board' has been diluted through subsequent judicial pronouncements upholding the constitutional rights of the detenue.

The Court further referred to the words of Sardar Ballavbhai Patel, the first Home Minister of independent India who had introduced the Bill which had culminated into the preventive detention Act 1950. It had been stated in the Parliament that such a law was 'directed against persons "whose avowed object is to create disruption, dislocation and tamper(ing) with communication, to suborn loyalty and make it impossible for normal Government based on law to function.'

It was further noted that Section 3 of the PITNDPS Act requires the detaining authority to record to its satisfaction as to why it is necessary to detain such a person. It must be shown that the detained person possesses serious threat to the health and welfare of the people.

Furthermore, the Court noted that the aggrieved person can make a representation to the advisory board and if the advisory board is of the opinion that there is sufficient case for the detention of the person then it has to submit a report to the appropriate government for confirmation of the detention order.

It was observed further that in the instant case, the order of preventive detention was passed after the coordinate bench of the High Court had released the petitioner on bail which he availed only on 30th March, 2021 almost 3 months after the order was passed in his favour.

Opining that in a judicial view, the Court must peruse the record to ascertain where sufficient cause exists for detention of a person, the Bench observed,

"The legislature has used the word "satisfy" in Section 3 and "opinion" in Section 9(c) of the Act which goes to show that in a judicial review the courts are entitled to look into the materials to ascertain whether sufficient cause exists for detention of a person. The record must show that circumstances do exists and are such that it is possible for the authority concerned to form an opinion therefrom suggestive of the persons engaged in such illicit traffic. The court would not ordinarily interfere with the said formation of opinion and the subjective satisfaction regarded by the detaining authority unless it appears to the court on the basis of the available record that formation of such opinion was tainted with malafide, bad faith, improper, unreasonable and in colourable exercise of power. The test of reasonable person may be applied to ascertain if the exercise of power was proper and not arbitrary."

The Bench noted further that the Indian legal jurisprudence already has a set of pre-existing criminal law legislations that cater to the culpability of various offences. Thus, preventive detention as a measure ideally should be utilised when the other existing criminal laws are inadequate and the preventive detention is squarely falling within the intention of the legislature to implement preventive detention.

"The Hon'ble Courts have looked down upon the practice of detaining a person under preventive detention when such person has been enlarged on bail in the same case. The intention with which courts have made such an observation is to ensure that preventive detention is not used as an added tool to curtail judicial decisions allowing bail of a person", the Court further underscored.

Referring to the facts of the case, the Court noted that it was only after the petitioner furnished the bail bond on March 30, 2021 that the detaining authority issued the purported order of detention on April 1, 2021. The Court emphasised that no detention order had been passed during custody. Furthermore, no new materials had been relied upon by the detaining authority while passing the order of detention.

"The detaining authority after 31st March, 2021 suddenly resurrected and relying on materials which they earlier considered and were of the opinion that such materials did not make out a case for preventive detention now found it to be relevant for an order of preventive detention. This would be clearly evident from the fact that all the materials on which the subjective satisfaction for preventive detention is based were available on record and there has been no fresh material available on record against the petitioner", the Court remarked further.

The Court further observed that the detaining authority could have very easily produced the petitioner before the Kamrup Court in execution of the arrest warrant as the petitioner 'was well within the reach of the detaining authority as he was languishing in the correctional home at Malda'.

"There could not be any apprehension in the mind of the detaining authority that the petitioner could be released on bail as warrant of arrest and production warrant were pending against the petitioner at the time when the petitioner furnished the bail bond. Accordingly, there was no immediate threat of the petitioner fleeing from justice", the Court highlighted further.

Accordingly the Court held that the impugned order of detention had been issued in 'colourable exercise of power' and that the subjective satisfaction recorded by the detaining authority was in complete remiss of settled principles of law.

"Liberty of an individual is of paramount consideration and discretion should not be used as a ruthless master and any discretionary power exercised to curtail such fundamental rights must not be arbitrary or without any justiciable grounds. On such consideration, we set aside the order of the detaining authority and the opinion of the Central Advisory Board. The petitioner is set free forthwith", the Court directed.

However, the Court made it clear that the instant order would not have a bearing on the trials pending before Malda and Kamrup Court and any order of custody passed in such proceedings.

Case Title: Heisnam Chaoba Singh v. Union of India & Ors.

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