The Andhra Pradesh High Court has held that non-consideration of bail orders, being vital material for arriving at proper satisfaction on the necessity of preventive detention, vitiates the detention order.

Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, empowers specified authorities to order preventive detention to prevent illicit drug trafficking.

A Division Bench of Justice Ravi Nath Tilhari and Justice Purushottam Kumar Chintalapudi accordingly set aside the detention of a man who had been granted bail in two cases under the NDPS Act observing:

“Since, we have set aside the order on the ground of nonconsideration of the relevant material the bail orders, which was not brought to the notice of the detaining authority, the Principal Secretary to the Government, we provide that the respondent No.2- Principal Secretary to the Government shall be at liberty to pass fresh order but in accordance with law and in case any order of detention is so passed afresh, the period of detention shall not exceed in total 12 months, including the period already served under the impugned detention orders.”

The proceedings arose after the State Government ordered the preventive detention of a man under the PIT NDPS Act on the basis of two criminal cases registered under the Narcotic Drugs and Psychotropic Substances Act, 1985, at two police stations in Visakhapatnam.

The accused had been granted bail in both cases before the detention order was passed. The detention order was subsequently confirmed by the State Government.

Challenging the detention and its confirmation, the petitioner approached the High Court by filing a habeas corpus petition under Article 226 of the Constitution.

The petitioner contended that the bail orders had not been placed before the detaining authority, resulting in non-consideration of relevant material and vitiating the detention order.

The Assistant Government Pleader submitted that the first bail order was not included in the detention proposal, while the second was granted after the proposal had been submitted.

Upon examining the record, the High Court noted that neither bail order had been considered. Although the second bail order was granted after the proposal was submitted, it preceded the detention order but was not forwarded to the detaining authority.

Referring to the Supreme Court's decision in Rushikesh Tanaji Bhoite v. State of Maharashtra (2012), the High Court held that when a person has been released on bail and is enjoying liberty under a court order, the bail order must be placed before the detaining authority to enable it to arrive at proper satisfaction. Failure to place and consider such vital material vitiates the subjective satisfaction underlying preventive detention.

Accordingly, the High Court allowed the writ petition, set aside the detention and confirmation orders, and directed that the detenu be released immediately if he was not required in any other case.

The Court clarified that a fresh detention order could be passed in accordance with law, subject to the overall detention period not exceeding 12 months, inclusive of the period already served.

Counsel for the Petitioner: D. Purnachandra Reddy.

Counsel for the Respondents: Akula Venkata Sai Jagadeesh, Assistant Government Pleader.