The Supreme Court on Wednesday said preventive detention was a "draconian measure" and quashed the detention orders against a duo held in a drugs case for want of prescribed safeguards.
A bench Justices Sanjay Kumar and Augustine George Masih found fault with the "cryptic orders" of detention by the authority without any application of mind.
The bench as a result set aside the Gauhati High Court order dismissing the plea against the detention orders of Ashraf Hussain Choudhary and his wife, Adaliu Chawang, under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances (NDPS) Act of 1988.
"Preventive detention is a draconian measure whereby a person who has not been tried and convicted under a penal law can be detained and confined for a determinate period of time so as to curtail that person's anticipated criminal activities," the bench said.
Preventive detention was, however, sanctioned by Article 22(3)(b) of the Constitution but Article 22 also provides stringent norms to be adhered to while effecting preventive detention, it added.
Article 22, the bench said, spoke of Parliament making a law to prescribe conditions and modalities relating to preventive detention.
"The Act of 1988 is one such law which was promulgated by Parliament authorising preventive detention so as to curb illicit trafficking of narcotic drugs and psychotropic substances," the court said.
The verdict also found it "needless" to state that as preventive detention deprived a person of their individual liberties by detaining them for a length of time without a criminal trial or conviction, the prescribed safeguards "must be strictly observed to ensure due compliance" with constitutional and statutory norms.
"We hold that the Gauhati High Court erred in the application of settled legal norms while testing the validity of the impugned detention orders. The common judgement dated August 29, 2024 passed by the Gauhati High Court dismissing the two writ petitions is accordingly set aside and the appeals are allowed," it held.
The bench quashed the detention orders of May 30, 2024 passed and extended by the special secretary, home department of the Nagaland government.
"The detenus, Ashraf Hussain Choudhary and Adaliu Chawang shall be set at liability forthwith, unless their continued incarceration is warranted in connection with any other case," it said.
The top court observed the investigating officer did not state anything about either of the detenus seeking bail in relation to the case under the NDPS Act after being arrested on April 12, 2024 while seeking their preventive detention.
The bench said it was only on November 28, 2024 that they were granted default bail owing to the failure of the prosecution to do the needful within the prescribed time.
"Therefore, the edicts of this court would squarely apply as there was no material for the detaining authority to have formed an opinion that there was a likelihood of either Choudhary or Chawang being released on bail," it said.
The bench observed the duo was also not informed the grounds of their detention in the language known to them by the investigating officer.
The material placed on record, therefore, reflected to the court that the detaining authority -- special secretary, Nagaland government home department -- did not even make separate grounds of detention and only acted upon the proposals for detention forwarded to her by the additional director general of police (Administration) of Nagaland.
"The cryptic orders of detention passed by her on May 30, 2024 merely recorded that she was satisfied, on careful examination of such proposals and other supporting documents, that sufficient grounds were made out for the detention of Ashraf Hussain Choudhary and Adaliu Chawang. This is not in keeping with the statutory scheme, inasmuch as Section 6 of the Act of 1988 specifically refers to the order of detention ‘being made' on separate grounds," it said.
Under the NDPS Act, the authorised officer, be it from the Centre or state government, must be "satisfied" that the person was required to be detained in order to prevent them from illicit trafficking of narcotic drugs and psychotropic substances.
"Such 'satisfaction' of the detaining authority necessarily has to be spelt out after application of mind by way of separate grounds of detention made by the detaining authority itself and cannot be by inference from a casual reference to the material placed before such detaining authority or a bald recital to the effect that the detaining authority was satisfied on examination of the proposals and supporting documents' that the detention of the individuals concerned was necessary," the bench said.
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