Case BriefsHigh Courts

Jammu and Kashmir High Court: Rashid Ali Dar, J. allowed a habeas corpus petition and quashed detention order of a person who had been under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. (hereinafter “the Act”).

Petitioner herein (detenue) was supplying 50 bottles of fenoerox to retailers as per the order placed with his employer. He was stopped by the police and booked under Section 8 read with Section 22 of Act; and was taken into preventive detention under Section 3 of the Act. He filed the instant petition challenging the detention order on the ground that detaining authority had not applied its mind to the provisions of the Act and particularly Article 22(5) of the Constitution of India. Further, the allegations mentioned in the grounds of detention were vague. Lastly, the detaining authority had not recorded its satisfaction to the effect that ordinary law is not sufficient to prohibit the detenue to repeat the offence. Thus, the order was bad in law and liable to be set aside.

Z.A. Qureshi, learned counsel for the  petitioner contended that the impugned order of detention or the grounds of detention formulated by the detaining authority did not indicate any compelling reason necessitating preventive detention of the petitioner after he had already been taken in custody by police for alleged commission of offence under Sections 8 and 22 of the NDPS Act. Thus, his preventive detention was illegal for the same having been passed at a time when petitioner was in the custody of the authorities of the State. It was also contended that the ground for detention was vaguely stated as “exploiting the young generation making them dependent on drugs and to make them habitual addicts”, which incapacitated the petitioner to make an effective representation in terms of Article 22(5) of the Constitution of India.

Javaid Iqbal, learned counsel for the respondent submitted that the detention order was proper as activities of the petitioner were prejudicial to the State. In this regard, he placed reliance on Sections 6, 9, 10 and 11 of the Jammu and Kashmir Prevention of Illicit Traffic Substance Act, 1988.

The Court opined that normally preventive detention of a person, who is already in custody of the State agencies in connection with the commission of offence under substantive law allegedly committed, must not be ordered. Preventive detention of such a person can be ordered only if the detaining authority has “compelling reasons” to believe that he is likely to be released in the substantive offence either on bail or due to his acquittal or discharge. Reliance in this regard was placed on Dharmendra Suganchand Chelawat v. Union of India, (1990) 1 SCC 746.

It was noted that at the time of passing the detention order, the petitioner was already in custody in connection with offence under Sections 8 and 22 of NDPS Act, which is a non-bailable offence. The detaining authority had not recorded any reason to believe that there was any possibility of immediate release of the petitioner from custody. Normal law, could properly deal with the matter in hand. Further, relying on Chaju Ram v. State of Jammu and Kashmir, (1970) 1 SCC 536 it was opined that the allegations levelled against the petitioner were vague and the same invalidated his detention order.

In view of the above, the petition was allowed.[Manzoor Ahmad Khawaja  v. State of Jammu and Kashmir, 2019 SCC OnLine J&K 579, decided on 01-07-2019]

Case BriefsSupreme Court

Supreme Court: Stating that the subjective satisfaction of the detaining authority under COFEPOSA is not immune from judicial reviewability, the bench of R. Banumathi and AS Bopanna, JJ has held that,

“the court must be conscious that the satisfaction of the detaining authority is “subjective” in nature and the court cannot substitute its opinion for the subjective satisfaction of the detaining authority and interfere with the order of detention.”

The Court dealing with a case where a huge volume of gold had been smuggled into the country unabatedly in the last three years and about 3396 kgs of the gold had been brought into India during the period from July 2018 to March, 2019 camouflaging it with brass metal scrap. The detaining authority recorded finding that this has serious impact on the economy of the nation. Detaining authority also satisfied that the detenues have propensity to indulge in the same act of smuggling and passed the order of preventive detention, which is a preventive measure.

Holding that the High Court erred in interfering with the satisfaction of the detaining authority, the Court refused to accept the contention that the courts should lean in favour of upholding the personal liberty,

“the liberty of an individual has to be subordinated within reasonable bounds to the good of the people. Order of detention is clearly a preventive measure and devised to afford protection to the society. When the preventive detention is aimed to protect the safety and security of the nation, balance has to be struck between liberty of an individual and the needs of the society.”

The Court, hence, upheld the detention of the Gold smuggler.

[Union of India v. Dimple Happy Dhakad, 2019 SCC OnLine SC 875, decided on 18.07.2019]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Rashid Ali Dar, J., allowed a petition filed against the order of respondent authorities, whereby petitioner was taken into preventive custody and lodged in Central Jail, Kotebhalwal, Jammu.

The main issue that arose before the Court was whether an order of preventive detention can be passed while the accused is already in police custody.

The Court observed that as per the judgment of Sama Aruna v. State of Telangana, (2018) 12 SCC 150, it is a settled proposition of law that a person cannot be taken into preventive detention while he is already in police custody. In that case, the Supreme Court had held that an order of preventive detention cannot be passed against an accused while considering a stale incident which took place a long time ago. The Court further observed that it was incumbent on the part of the person, who did the exercise of handing over the documents and conveying the contents thereof to the detenu, to file an affidavit in order to attach a semblance of fairness to his actions.

The Court held that the respondents in the instant matter had placed the petitioner under preventive detention while he was already in police custody; this action on the part of respondents is unjustified. Further, the respondents did not even supply the material to the petitioner, which formed the basis of the order of preventive detention. Resultantly, the petition was allowed and the order of preventive detention was quashed.[Farooq Ahmad Bhat v. State of J&K,2018 SCC OnLine J&K 924, order dated 01-12-2018]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Rashid Ali Dar, J., allowed a petition filed against the order of District Magistrate, Anantnag, under Section 8 of the J&K Public Safety Act, whereby the petitioner was placed under preventive detention.

The main issue that arose before the Court was whether the order passed by the detaining authority was good in law.

The Court observed that even though the petitioner was granted bail in the concerned criminal case, he was not released, rather he was taken into custody vide the impugned detention order. In the detention order there is no mention of bail which was granted to the petitioner and hence it can be fairly concluded that there was non-application of mind on the part of detaining authorities. The Court further observed that the materials which formed the basis of detention order were not supplied to the petitioner. The Court then referred to the Supreme Court judgment of Thahira Haris v. Government of Karnataka, (2009) 11 SCC 438, wherein it was held that in cases where documents forming ground for detention are not supplied to the detenue, the order of detention becomes illegal.

The Court held that the order of detention passed by the detaining authorities was illegal since there was non-application of mind while passing the order and the materials that formed the very basis of such an order were not supplied to the petitioner. Non-supply of materials rendered the petitioner helpless in filing an appropriate representation against such an order and it also violated the fundamental right of petitioner guaranteed to him under Article 22(5) and (6) of the Constitution of India. Resultantly, the order of detention was quashed and the petition was allowed. [Subeel Javid v. State of J&K,2018 SCC OnLine J&K 758, order dated 23-10-2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: In the judgment delivered by the Bench of Tashi Rabstan, J., in the appeal against the order of District Magistratre, Baramulla, the Court allowed the petition and quashed the detention order against the detenu. The appellant was implicated in case FIR No. 266/2016 but was later granted bail. The detenu in compliance with the bail condition went to the police station when called again, where he was detained in case FIR No. 259/2016 and put in jail by the impugned detention order. Both the FIR’s related to detenu being responsible for organising anti-government protests and instigating the youth in Baramulla. He was also categorically said to be involved in voluntary stone pelting incidents in various areas of Baramulla.

The Court held that Article 22(3)(b) of the Constitution of India is only an exception to Article 21, further observing that fundamental rights are meant to protect the civil liberties of people and to prevent the misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and complied along with procedural safeguards, which is mandatory and vital. The respondents have not tendered explanation whatsoever as to why the order of detention has been issued after such a long delay of more than ten months from the date of the alleged criminal activity, which has been made edifice for satisfaction to pass the impugned order of detention and during the period of delay no fresh activity has been attributed to the detenu. The unexplained delay has snapped proximity of the detention order with the time its alleged requirement arose and also the detaining authority has not given any explanation for the delay in passing the impugned order of detention.

The Court relying on V. Shantha v. State of Telangana2017 SCC OnLine SC 623 held that preventive detention cannot be resorted to when sufficient remedies are available under the general laws of the land for any omission or commission under such laws and to classify the detenu as a notorious stone pelter it is not sufficient to invoke statutory powers of preventive detention. [Ishfaq Ahmad Kumar v. State of J.K.,  2017 SCC OnLine J&K 724, decided on 29.11.2017]

Case BriefsHigh Courts

Allahabad High Court: The High Court dismissed a habeas corpus petition brought before it in a case of cow slaughter in front of a temple. The apprehension of disturbance of public order due to hurting of religious sentiments led to the arrest of the petitioner.

The Sub-Inspector of the area received information that the petitioner, along with a group of people, is slaughtering a cow or its progeny near a temple. On apprehension of communal riots, the police arrested three persons including the petitioner. The FIR was lodged under Sections 147, 148, 149 and 307 IPC and the order of detention was passed under Section 3(2) of the National Security Act.

It was stated by the Court that the question of application of mind in the detention order is to be decided by comparison of detention of detention order with the dossier of the sponsoring body. The various changes in the order at multiple places indicate application of mind. Regarding the question of discriminatory approach of the authority it has been stated that there is no parity amongst all the accused and detention depends on the satisfaction of subjective matter by the authority. These are individual cases and parity or lack thereof is not a determining factor to claim discrimination. The final question in the case was whether the act affected public order or law and order. It was conclusively determined that when the cow was slaughtered in a public place and in full public view, it leads to hurting of religious sentiments and incites communal tension. Hence it cannot be treated as a case of law and order only but also that of public order.

The Court further observed that the purpose of preventive detention is not to punish but to prevent. The main aim of this is to protect the public and the society at large and prevent the person from committing a crime which would disrupt public life. On all these grounds the petition was dismissed. [Wasi thru. Mohd. Rafi v. State of U.P., 2017 SCC OnLine All 1880, decided on 03.07.2017]


Case BriefsHigh Courts

High Court of Andhra Pradesh and Telangana: The detention of one Chirraboina Krishna Yadav under the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 was questioned by his wife in a writ petition before a Division Bench comprising of C.V. Nagarjuna Reddy and J. Uma Devi, JJ. The writ petition was allowed and the detention order was quashed.

The contention of the respondent State was that the detenu had been involved in as many as 26 offences between 1989 and 2012; externed from Hyderabad for six months; and detained for a period of one year. However, he had been accused of five more offences since his release and in order to protect the family of one of the complainants in the two criminal cases that the respondents relied on and also to maintain public order, it was necessary to detain the detenu.

Accepting the arguments forwarded by the petitioner, the Court relying on a plethora of landmark judgments of the Supreme Court and on various decisions of High Courts, discussed the difference between ‘law and order’ and ‘public order’. Since the accusations against the detenu centred on only one family and did not involve the public at large, the concern was regarding disturbing law and order and not public order.

It was held that “preventive detention of a person is an extreme measure resorted to by the State when ordinary criminal law is found not adequate to control his activities which cause disturbance to public order.” The Court also noted that the prosecution had failed to show as to out of the 31 cases the detenu had been accused in, how many resulted in a conviction and in how many he was acquitted. The Court also observed that the law enforcement, investigation and prosecution agencies needed to “overhaul the whole criminal law enforcement system by plugging the huge gaping holes.” [C. Neela v. State of Telangana, 2017 SCC OnLine Hyd 224, decided on  27.06.2017]

Case BriefsSupreme Court

Supreme Court: In the case where the detenu was detained under the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 for selling the spurious seeds to poor farmers and acquiring illegal gains at their expense his illegal activities, the Court said that classifying the detenu as a “goonda” affecting public order, because of inadequate yield from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of preventive detention.

The appellant, the detenu’s wife, had contended that the detenu was already in custody in two other cases. The order of detention does not consider the same, setting out special reasons for an order of preventive detention, with regard to a person already in custody.

The order of preventive detention mentioned that the illegal activities of the detenu were causing danger to poor and small farmers and their safety and financial well-being and that recourse to normal legal procedure would be time consuming, and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the preventive detention Act as an extreme measure to insulate the society from his evil deeds.

Setting aside the abovementioned order, the bench of L. Nageswara Rao and Navin Sinha, JJ said that the rhetorical incantation of the words “goonda” or “prejudicial to maintenance of public order” under the Act cannot be sufficient justification to invoke the draconian powers of preventive detention. The grounds of detention are ex-facie extraneous to the Act. The Court, however, clarified that there will not be any prejudice to the prosecution of the detenu under the ordinary laws of the land. [V. Shantha v. State of Telangana, 2017 SCC OnLine SC 623, decided on 24.05.2017]