Detaining Authority Must Show Likelihood Of Bail To Pass Preventive Detention Order Against Person Already In Custody: Gauhati HC Reiterates

The Gauhati High Court recently set aside detention and confirmation orders under NDPS Act against two detenues in judicial custody, on the ground that the orders lacked cogent materials based on which the Detaining Authority had reasons to believe that the detenues could be released on bail.

The division bench comprising Justice Manish Choudhury and Justice Devashis Baruah observed:

“The Detention Order No.I as well as the Detention Order No.II dated 04.07.2024 as well as 12.07.2024 respectively passed by the Detaining Authority and the grounds of detention so enclosed as Annexure-A to the said Detention Orders do not in any manner mention that there were materials available with the authorities on the basis of which it had reasons to believe that there was a real possibility of the detenues being released on bail. In the grounds of detention in both the cases, though the Detaining Authority acknowledges that the detenues are presently under judicial custody but there is no mention of cogent materials on the basis of which the Detaining Authority had reasons to believe that the detenues in both the cases had a likelihood of being released on bail.”

Quoting verse from the song introduced in the cinematographic version of Joy Adamson's memorable classic “Born Free”, the court said that the same aptly describes the concept of personal liberty and individual freedom.

"The said personal liberty and individual freedom can be curtailed by preventive detention laws, which could be used to consign an individual to the confines of jail without any trial, on the basis of the satisfaction arrived at by the detaining authority on the basis of the material placed before him," the court underscored.

The Court as hearing two writ petitions filed by the relatives of the two detenues who were arrested together on May 11, 2024 in connection with Narcotics Case registered under Sections 18(b) and 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS).

An FIR was lodged by the Narcotic Cell Police Station, PHQ, Kohima on May 11, 2024 stating that on the same day during routine checking of the vehicles between Khuzama and Viswema Village, a vehicle wherein there were two occupants namely Karj Singh (the detenu in the present proceedings) and Naseeb Singh [the detenu in W.P.(Crl.) No.22/2024] were stopped and search was conducted.

It was alleged that while conducting the said search, in the specially built cavity chamber in the running board of the vehicle, drugs suspected to be opium were found inside the chamber. It was further mentioned that 30 packets suspected to be containing opium i.e. 15 packets in each running board of the vehicle were recovered. The suspected narcotic drugs were taken out, weighed separately and total weight approximately 31 Kilo 213 Grams were seized.

On the basis of the said FIR, a case was registered under Sections 18(b) and 60 of the NDPS Act against both the detenues.

The Additional Director General of Police (L&O) and Chairman Screening Board PITNDPS Act, Nagaland issued a communication on June 27, 2024 to the Special Secretary (Home) to the Government of Nagaland, Home Department thereby sending his proposal for detention of Shri Karj Singh under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (Act of 1988).

On the basis of the said proposal dated June 27, 2024, the detention order was passed on July 4, 2024 in the case of Shri Karj Singh herein after for the sake of convenience referred to as the Detention Order No.I. The said Detention Order No.I was served upon the detenu – Karj Singh on July 9, 2024 along with the grounds of detention, the information to the detainee about his rights as well as the other enclosures.

The Advisory Board after hearing the detenu in-person vide an order dated September 17, 2024 opined that there were sufficient causes for the detention of Karj Singh – detenu. Thereupon, on October 7, 2024, the Chief Secretary to the Government of Nagaland had passed the Confirmation Order (Confirmation Order I) in terms with Section 9(f) of the Act of 1988.

The second writ petition, which was filed by the wife of the detenu –Naseeb Singh who was also arrested along with Karj Singh on May 11, 2024 in connection with Narcotic Case No.007/2024 under Sections 18(b) and 60 of the NDPS Act. Naseeb Singh was initially remanded to police custody from May 12, 2024 to May 23, 2024 and since May 23, 2024 he has been in judicial custody.

On July 12, 2024, the Detention Order (Detention Order II) was assed by the Special Secretary to the Government of Nagaland, Department of Home against Naseeb Singh. The Advisory Board vide a report dated September 17, 2024 after hearing the detenu in-person opined that there were sufficient causes for detention of the detenu – Naseeb Singh. Subsequent thereto, on October 08, 2024, the Confirmation Order (Confirmation Order II) was passed by the Chief Secretary to the Government of Nagaland thereby confirming the detention order and further ordering that the detenu – Shri Naseeb Singh be detained for another period of three months w.e.f. October 15, 2024 to January 14, 2025 within which period, his detention would be reviewed as required under the provisions of the Act of 1988.

The Counsel appearing for the petitioners submitted that both the detenues were in judicial custody at the time when both the detention orders were passed and continue to remain till date.

It was further argued that Detention Orders in respect to both the detenues do not in any manner show that the Detaining Authority had duly taken into consideration that the detenues were already in judicial custody since May 23, 2024 and there were cogent materials to support that the detenues were likely to be released on bail.

On the other hand, the Public Prosecutor submitted that the investigation revealed that both the detenues have been in this business for 4-5 years and have transported at least 85 Kgs of opium from Imphal (Manipur) to Tarn Taran (Punjab). It was further submitted that all the procedural requirements have been duly followed and as such the question of interference with the Detention Orders as well as the Confirmation Orders ought not to be made by the Court.

The Court relied upon the judgment of the Supreme Court in Dharmendra SuganChand Chelawat v. Union of India (1990) 1 SCC 746 in which it was observed that an order of detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that:

1. The detaining authority was aware of the fact that the detenue was already in detention; and
2. There were compelling reasons justifying such detention despite the fact that the detenue is already in detention.

The Supreme Court further clarified the expression “compelling reasons” in the context of making an order for detention on a person already in custody to mean that there must be cogent materials before the Detaining Authority on the basis of which it may satisfy that:

1. The detenue is likely to be released from custody in near future; and
2. Taking into account the nature of the antecedent activities of the detenue, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.

The High Court in the present matter noted that the proposals so submitted to the Detaining Authorities in the case of both the detenues do not in any manner state that there were reliable materials on the basis of which one could have reasons to believe that there was a real possibility of the detenues to be released on bail and further on being released they would probably indulge in activities which are prejudicial to public order.

“…….while rejecting the representations by the Chief Secretary to the Government of Nagaland, the Special Secretary to the Government of Nagaland, Department of Home as well as by the Central Government, the said aspect in the representation submitted by the detenues have not been taken into consideration. Further to that, it also surprises us to take note of that the representations submitted by the detenues were also placed before the Advisory Board, Government of Nagaland, PITNDPS Act. However, the Advisory Board did not take into consideration the said aspect though the law has been fairly and squarely settled by the Supreme Court more than a decade ago,” the Court noted.

The Court observed that Section 37(1)(b) of the NDPS Act imposes stringent conditions for a person to be released on bail in respect to offences involving commercial quantity.

“……in absence of any reliable materials before the Detaining Authority on the basis of which the Detaining Authority had reasons to believe that there was a realistic possibility of the detenues herein would be released on bail, it is our opinion that the Detention Orders as well as the Confirmation Orders so assailed in both the writ petitions are based upon mere ipse dixit statements in the grounds of detention and cannot be sustained in law,” the Court said.

Thus, the Court quashed and set aside the impugned Detention as well as the Confirmation Orders as regards to both the detenues.

Citation: 2025 LiveLaw (Gau) 3

Case Title: Shri Gurmej Singh Batth v. The State of Nagaland & 3 Ors.

Case No.: W.P.(Crl.)/20/2024

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