Calcutta High Court: The Division Bench of Rabindranath Samanta and Soumen Sen, JJ., allowed a writ petition which was filed invoking the “jurisdiction of suspicion” in view of the order of detention passed by the Joint Secretary to the Government of India on 1st April, 2021 under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988 (as amended), (in short PITNDPS Act). The petitioner was directed to be detained and kept in Malda Correction Home, Kolkata.
- A case under Narcotic Drugs and Psychotropic Substance Act, 1985 was initially initiated against the persons including the petitioner in connection with recovery of 384.21 kg of ganja on 29th June, 2017 from a truck. The contraband was claimed to have been concealed behind the cabin of the truck.
- On the basis of the complaint filed on behalf of NCB, a NDPS Case No. 111 of 2017 was initiated by the appropriate Court at Kamrup and thereafter trial commenced before the learned Additional Sessions Judge No.2, Kamrup(M), Guwahati. The record reveals that the petitioner was absconding and non-bailable warrant of arrest was issued against the absconder/petitioner repeatedly since 2nd May, 2018 until he was arrested on 12th December, 2019 in connection with the another NDPS Case, this time at Malda.
- While he was on detention, in relation to the Malda case, the petitioner filed an application for bail before a Coordinate Bench. The prayer for bail was allowed by the Coordinate Bench on 21st December, 2020. The petitioner presumably could not immediately avail the benefits of bail due to financial difficulty and arranging sureties until 30th March, 2021 to furnish his bail bond.
- During pendency of execution of warrant of arrest on 1st April, 2021, the authorities passed an order of preventive detention.
- Based on the documents and the materials placed before the detaining authority and considering the motive of detenu, the detaining authority recorded its satisfaction with regard to the detenu’s continued tendency and inclination to indulge in acts of the illicit traffic and narcotic drugs and psychotropic substance in a planned manner. The modus operandi according to the detaining authority adopted by the detenu with his associate gives rise to the reasonable apprehension that if he is not detained he would indulge in similar activities of illicit traffic and narcotic drugs and psychotropic substance.
Counsel for the petitioner submitted that the order of detaining authority was on a colourable exercise of power and the purpose and motive behind the said order was to set at naught the order passed by the Hon’ble Division Bench in releasing the petitioner on bail. It was further submitted that the apprehension the detenu was likely to be released from the custody and hence a preventive detention order is required to be passed, is completely a misuse of the power and in any event, having regard to the fact that the petitioner was in custody, there was no requirement to pass any preventive detention order.
Additional Solicitor General appearing on behalf of the respondents submitted that the preventive detention is different from criminal prosecution and the two are mutually exclusive. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. The only requirement is that the detaining authority has to come to the satisfaction that there exists a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same.
The Court explained,
Personal liberty of an individual is precious, invaluable and to be jealously secured and protected. The word “preventive” is different from ‘punitive’ as said by Lord Finley in R.V. Haliday reported in 1917 AC 260.
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 perused the order of detention and found that authority did not even issue any detention order during custody. There was no fresh material available to the detaining authority subsequent to his arrest in relation to the Malda case or after the coordinate bench presided over by Justice Bagchi granted bail to the petitioner on 21st December, 2020.
The Court was of the opinion that in the instant case all materials that were available before the Division bench at the time of granting bail were also available with the detaining authority prior and subsequent to the order granting bail to the petitioner. Curiously the detaining authority did not challenge the order of the coordinate bench before a higher forum or apply for cancellation of bail. The detaining authority accepted the order of the coordinate bench dated 21st December, 2020 and the said order is still in force.
The Court was not satisfied with the explanation offered for not being able to produce the detenue before the Kamrup court in execution of the warrant of arrest or the production warrant as the detenue was well within the reach of the detaining authority as he was languishing in the correctional home at Malda. The Court drew support from the judgments of Dharmendra Suganchand Chelawat v. Union of India, (1990) 1 SCC 746 and Khudiram Das v. State of West Bengal, AIR 1975 SC 550.
The Court finally set aside the order of the detaining authority and the opinion of the Central Advisory Board setting the petitioner free.[Heisnam Chaoba Singh v. Union of India, 2021 SCC OnLine Cal 2691, decided on 05-10-2021]
Suchita Shukla, Editorial Assistant has reported this brief.
For the Petitioner: Mr Uday Sankar Chattopadhyay, Mr Dibakar Sardar, Mr Pronay Basak, Mr Santanu Maji, Ms Snigdha Saha, Mr Subhayu Das
For the Union of India: Mr Y.J. Dastoor, Ld. A.S.G,Mr Vipul Kundalia, Ms Anamika Pandey
For the State: Mr Saibal Bapuli, A.P.P., Mr Md. Sabir Ahmed
For the respondents no. 7 to 9: Mr Phiroze Edulji, Mr Arijit Mazumdar
