'Preventive Detention Must Not Be Used As Added Tool To Curtail Judicial Decisions Allowing Bail': Calcutta High Court

The Calcutta High Court recently set aside an order of preventive detention passed under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988 (PITNDPS Act). Pursuant to the impugned order, the petitioner had been directed to be detained and kept in Malda Correction Home, Kolkata. Proceedings under the PITNDPS Act had been initiated against the petitioner and other accused persons in connection with recovery of 384.21 kg of ganja on June 29, 2017 from a truck. A Bench comprising Justices Rabindranath Samanta and Soumen Sen expressed strong reservations against the arbitrary exercise of powers to issue preventive detention orders. "Preventive detention is an exceptional mechanism compromising on the personal liberty of individuals. Therefore, the legal qualification of preventive detention laws ought to be interpreted strictly and preventive detention should not be permissible unless it absolutely qualifies all the necessary legal facets. The Hon'ble Courts have acknowledged the gravity and repercussions of preventive detention laws. Preventive detention is a tool in isolation which operates to curtail a person's personal liberty. Preventive detention is more excessive than normal measures of arrest, hence preventive detention cannot be misconstrued to be a direct alternative to the normative criminal prosecution", the Bench observed. The Court further emphasised that preventive detention must not be used as a tool to curtail judicial decisions allowing bail of a person. "The object behind the order of preventive detention should not be to set at naught or render a judicial decision nugatory or otiose and if one is inclined to accept the contention of the detaining authority that such judicial order would not be relevant for preventive detention and notwithstanding existence of such order merely on suspicion an order of preventive detention could still be passed as it happened in this case, it would be in our view an act of over-reaching a judicial order and would sound a death knell of the sanctity of the judicial order and the very existence of judiciary as a sentinel on the qui vive", the Court opined further. Background In the instant case, the petitioner had been apprehended at Guwahati on June 29, 2017 in respect of consignment of 384.210 kg Ganja allegedly recovered from a truck and on the basis of the statement of two persons named Md. Rafe and P. Shyam Singh. Thereafter a non-bailable arrest warrant dated January 7, 2019 had been issued against the petitioner. Subsequently, the petitioner was arrested in relation to the recovery of 391.4 kg of Ganja on the basis of the statement of one Imtiyas Khan whose statement had been recorded under Section 67 of the NDPS Act. The NCB Guwahati had initiated the case initially against the co-accused persons- Md. Rafe and P. Shyam Singh on December 19, 2017. Thereafter a supplementary charge sheet had been filed against the petitioner on April 5, 2018 under the NDPS Act. Warrant of arrest was issued against the petitioner on May 2, 2018 and subsequently on June 7, 2019 another case that is the Kamrup Narcotic case was initiated against the petitioner. On December 13, 2020 the petitioner was arrested in yet another case that is the Malda Narcotic case and was subsequently granted bail on December 21, 2020. Furthermore, on March 30, 2021 the petitioner submitted a bail bond to the Special Court in Malda. But later that day, the NCB Guwahati had prayed for 2 days' police remand for recording of statement and to produce the petitioner before the Kamrup Court. Accordingly, the Special Court at Malda directed the Superintendent of Malda Correctional Home to take necessary steps for physical production of the petitioner before the Kamrup Court. On the following day i.e. on March 31, 2021 the Special Court, Kamrup had recorded in its order that the Superintendent of Malda Correctional Home had sent a message stating that the Special Court, Malda had not accorded permission to hand over the accused to Guwahati police. Thereafter on April 1, 2021 the impugned detention order was passed. Observations: Pursuant to the perusal of the rival submissions, the Court at the outset opined that preventive detention acts as an anathema to liberty. It was further observed that personal liberty of an individual is 'precious, invaluable and to be jealously secured and protected'. "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 observed further. The Court further lamented that it is rather 'strange' that framers of...

'Preventive Detention Must Not Be Used As Added Tool To Curtail Judicial Decisions Allowing Bail': Calcutta High Court

Aaratrika Bhaumik

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'Preventive Detention Must Not Be Used As Added Tool To Curtail Judicial Decisions Allowing Bail': Calcutta High Court

Aaratrika Bhaumik

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Aaratrika Bhaumik

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