Preventive Detention Illegal If In-Camera Witness Statements Not Verified Before Proposal Under Dangerous Activities Act: Bombay High Court

In a significant judgment, the Bombay High Court held that Preventive Detention is a 'punishment without a trial' and thus, a detention proposal made by a sponsoring authority without prior verification of the in-camera witness statements is materially defective and illegal and such a detention order cannot sustain in law. A division bench of Justice Ajay Gadkari and Justice Ranjitsinha Bhosale noted that the Assistance Commissioner of Police (ACP) acts in dual capacity in processing a proposal for preventive detention - on the administrative side to scrutinise the proposal made by the sponsoring authority and forwarding it further to higher authorities to take a final call; on the investigative side, the ACP has to verify the in-camera statements of witnesses, which are often the foundation of such detention orders. The judges while considering the plea by one Rushikesh @ Monya Shamrao Waghere, noted the argument that the ACP must verify the truthfulness and genuineness of in-camera statements as soon as the sponsoring authority starts making a proposal (collating and collecting evidence, incidents, documents etc). It was argued that verification of statements cannot be done after the ACP receives the entire detention proposal for his scrutiny.The judges noted that under the Preventive Detention laws, the arrest/detention is by a summary procedure and without a trial, which is not the case in other criminal prosecutions. "Preventive Detention is a punishment, without a trial. Under the preventive detention laws it is permissible that, at the first instance, the punishment starts and liberty is curtailed, before an opportunity of being heard is even granted. This is because, the purpose and objective is preventive and based on valid suspicion and/or apprehension. The protection against preventive detention law is more procedural and/or technical than substantive. The safeguards available to a person against whom an order of detention has been passed are limited to procedural safeguards," the judges emphasised in the order passed on October 17, 2025 but made available only on Wednesday (January 21).The strict observance and compliance of the procedural aspects, requirements and safeguards in matters of preventive detention is the essence of the protection afforded to the detenue. Procedural safeguards and protections, are the guarantees and assurances that the authorities will act in accordance with law and not at their own will or prejudices. In our view, therefore the strict compliance of the procedural requirements and safeguards however technical, is a must, the judges said. The bench said that the intention why the ACP is ought to scrutinise a proposal made by the sponsoring authority is that the in-camera statements recorded by the said authority in its proposal are true, correct and genuine. "In our opinion, this scrutiny is a necessary check, and rules out the possibility of false implication and/or harassment. The in-camera statement is one of the important material on which the subjective satisfaction is arrived at. It may at times form the basis and foundation of the subjective satisfaction and thereby the Detention Order. It is a very vital and important procedural and investigative safeguard. It is clearly an investigative exercise which is required to be done independently. A proposal being moved by the sponsoring authority, with an unverified in-camera statement would be a mockery of the procedural laws. A clear eyewash, in the name of procedural compliances. Procedural requirements ought in be followed strictly in all aspects and all stages of the detention process," the bench held. The bend made it clear that when a detention proposal moves out from the hands of Sponsoring Authority, it should contain the verified in-camera statements and it is not proper for the proposal to move out of the hands of the Sponsoring Authority with an unverified in-camera statement."An unverified in camera statement would mean and imply that, one of the important material on which reliance is placed, was not verified for its truthfulness, reliability and genuineness when the proposal left the hands of the Sponsoring Authority. That, reliance is placed by the Sponsoring Authority on unreliable and incomplete material," the judges emphasised. In the judgment authored by Justice Bhonsale, it is clearly held that it would not, be correct in law, for the ACP to verify the in camera statement, after it has been received as a part of the detention proposal by the ACP in his administrative capacity for checking. The verification ought to be done, when the proposal is with the Sponsoring Authority itself and when the ACP acts in his capacity of an officer in his investigative capacity. "To verify the in camera statements, when the detention proposal along with the in-camera statements i.e entire proposal is received as a part of the administrative duty, would imply that the verification of the in-camera is not done with ...

Preventive Detention Illegal If In-Camera Witness Statements Not Verified Before Proposal Under Dangerous Activities Act: Bombay High Court

Narsi Benwal

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