Calcutta High Court
Calcutta High Court: Preventive Detention Unconstitutional Where Real Object Is To Incarcerate For Past Offences Or Continue Custody Despite Grant Of Bail
|The Calcutta High Court reiterated that power of preventive detention is a “necessary evil and must be exercised only within strict statutory and constitutional confines”.
The Calcutta High Court held that the preventive detention becomes unconstitutional where the real object is to incarcerate for past offences, or to continue custody despite a Court granting bail.
The Court held thus in a Writ Petition challenging the Detention Order passed by the Detaining Authority, Joint Secretary under the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act of 1988 (PIT-NDPS).
A Division Bench of Justice Tapabrata Chakraborty and Justice Reetobroto Kumar Mitra observed, “The legal distinction between preventive and punitive detention is well established. The former aims to forestall future prejudicial acts, the latter to punish past ones. Yet from the point of the detenu, the practical reality is the same: loss of liberty, separation from family, and confinement behind prison walls. Indeed, preventive detention, imposed without trial, can be more intrusive to personal liberty than punitive detention. This is why the Constitution and the statute subjects such orders to strict safeguards, and why the Supreme Court has cautioned that preventive detention must not be used as a convenient substitute for punishment under the ordinary criminal process. Where the real object is to incarcerate for past offences, or to continue custody despite a court granting bail, the order loses its preventive character and becomes unconstitutional.”
Advocate Uday Sankar Chattopadhyay represented the Petitioner while Advocate Arun Kumar Maiti (Mohanty) represented the Respondents.
Facts of the Case
In all the three cases registered against the Petitioner-detenue, she was accused of being in possession of heroin and Ganja. In the second case, she was found to be in possession of ganja exceeding 20 kg ceiling, making it of commercial value. She was granted bail in all three matters by the Courts of competent jurisdiction, including an Order by the High Court. The order of detention was communicated to the Petitioner in 2024 and was taken to the prison in Jharkhand but refused admission on the first instance.
Thereafter, she was lodged in the prison. Her son made a representation, seeking cancellation of detention order and he himself also made a representation thereafter. The same was rejected and then she made a representation to the Advisory Board, Jharkhand. In the meanwhile, the Union of India through Narcotics Control Bureau (NCB), KZU, Kolkata, had applied for cancellation of the Petitioner’s bail, which was rejected by the High Court. It was in these circumstances that the Petitioner filed a Writ Petition.
Reasoning
The High Court in view of the facts and circumstances of the case, noted, “The law of preventive detention as espoused through various decisions of the Hon’ble Supreme Court of India and several High Courts of this country are all ad idem on one fundamental issue, that is, preventive detention is an aberration of the right to freedom of an individual’s personal liberties. Thus, to give credence to such an aberration, the probative value of the materials on record must be of a very high order to justify suspending an individual’s right to freedom and liberties.”
The Court reiterated that preventive detention is an extraordinary power in the hands of the State which must be used sparingly as it curtails the liberty of an individual in order to prevent an anticipated commission of an offence which could disrupt public order.
“Needless to say that preventive detention is an exception to Article 21 and therefore must be applied only in rare cases. … Any order of detention, on the basis of allegation, prior to a conviction is nothing but an invasion of personal liberty of an individual and should therefore adhere strictly to the statutory requirement and even stricter procedural and substantive safeguards as envisaged under Article 22 of the Constitution of India”, it added.
The Court further reiterated that power of preventive detention is a “necessary evil and must be exercised only within strict statutory and constitutional confines”.
“The detaining authority must have contemporaneous and relevant material to which an application of mind without relying on conjecture and assumption must be shown. Keeping in mind the limited scope of interference in judicial review, we cannot turn a blind eye to the detaining authority's mechanical adoption of the recommendations given by the police authority”, it said.
The Court remarked that a mere line that the Petitioner’s enlargement into civil society may give rise to threat and harm to the society at large is wholly insufficient and inadequate to suspend her personal liberties.
Conclusion
The Court also noted that preventive detention cannot be exercised as a punitive step, which the detaining authority has sought to do in this matter.
“In view of the aforesaid facts and circumstances, we are unable to uphold the detaining order and respectfully disagree with the opinion of the Advisory Board”, it concluded.
Accordingly, the High Court allowed the Writ Petition, set aside the preventive detention order, and directed to release detenue.
Cause Title- Jahanara Bibi @ Jahanara Begam @ Jahanara Mondal @ Janu v. Union of India & Others (Case Number: W. P. A. (H) NO. 22 OF 2025)
Appearance:
Petitioner: Advocates Uday Sankar Chattopadhyay, Pronay Basak, Rajashree Tah, Trisha Rakshit, Aishwarya Datta, and Sadia Parveen.
Respondents: Advocates Arun Kumar Maiti (Mohanty) and R. R. Mohanty.