Allahabad High Court acquits man detained under PITNDPS Act, says preventive detention laws in India have great potential to be abused

The Allahabad High Court while allowing the petition said that the preventive detention laws in India are a colonial legacy and have a great potential to be abused and misused. Laws that have the ability to confer arbitrary powers to the state, must in all circumstances, be very critically examined, and must be used only in the rarest of care cases.

The Division Bench of Justice Rahul Chaturvedi and Justice Gajendra Kumar passed this order while hearing a Habeas Corpus Writ Petition filed by Shivbodh Kumar Mishra Alias Shiv Bodh Mishra.

The Habeas Corpus Writ Petition filed invoking constitutional remedy under Article 226 of the Constitution of India, whereby the petitioner Shivbodh Kumar Mishra @ Shiv Bodh Mishra has sought the following prayer :-

“issue a Writ of Habeas Corpus commanding all the respondents to release the petitioner from his illegal detention in pursuance of the detention order dated 04.03.2022 passed by respondent no 3 under section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

and to set the petitioner at liberty forthwith, and may further be pleased to quash the impugned order dated 04.03.2022 passed by the respondent no 3 of the writ petition.”

Thus, from the above prayer, it is clear that petitioner has sought a command and direction from this Court to release him from illegal detention pursuant to order passed by the respondent no 3 dated 04.03.2022 u/s 3(1) of “Prevention of Illegal Traffic in Narcotic Drug and Psychotropic Substance Act, 1988” (PITNDPS Act’) and the petitioner may be set at liberty forthwith after quashing the order dated 04.03.2022.

In this case, on 04.01.2016 the Zonal Director, NCB Lucknow after receiving a tip from his sources that 4-5 persons coming from Bihar on a truck, and a Mahindra Scorpio car are likely to deliver a consignment of illegal ‘Ganja’ to the petitioner near Nawabganj Bypass situated at Allahabad Lucknow Road around 01.00 in the day on 04.01.2016. On receiving this information, a team consisting of NCB officials intercepted the aforesaid vehicle and recovered 312.045 kgs of Ganja.

In this operation total 8 persons were nabbed, though the petitioner was sitting in a Mahindra Scorpio Car. Accordingly, a criminal case was filed by NCB Lucknow having Criminal Case under section 8, 20, 29 of N.D.P.S Act before the District & Session Judge, Allahabad on 29.6.2016.

It is contended by counsel for petitioner that after great deal and efforts, the petitioner was eventually let loose on bail by this Court vide order dated 05.03.2020 while allowing his Third Bail Application and thereafter the petitioner was bailed out after completing the necessary formalities, furnishing the bail bonds and sureties.

On 25.10.2020 he was again apprehended along with three other persons while travelling on a Swift Desire car along with Surajpal Soni, Vijay Kesarwani and Sanjay Kesarwani. After being searched out, a total quantity of 170 kgs of Ganja was recovered.

In respect of this incident, an FIR was lodged on 25.10.2020 as Case under section 8 & 20 of NDPS Act, Police Station Mahewaghat, District Kaushambi. It is interesting to mention here that, petitioner again preferred a Bail Application in aforesaid case crime which was allowed by the Additional Sessions Judge (POCSO Act), Kaushambi vide order dated 18.12.2020.

These aforementioned are only two cases in which the petitioner was arrested and later on was bailed out on 05.03.2020 and 18.12.2020 respectively. Except for the above mentioned two cases, there are no other cases to the credit of petitioner.

It has been strenuously argued by counsel for the petitioner that after being released on bail vide order dated 18.12.2020, the petitioner has never indulged into any offence, much less than the cases of NDPS Act, till he was bombarded by impugned detention order dated 04.03.2022, signed by Ravi Pratap Singh, Joint Secretary, Government of India, Ministry of Finance, Department of Revenue (PITNDPS Unit) u/s 3(1) of the PITNDPS Act, 1988.

The Court said that,

In the case, the petitioner has not been provided any document relying upon the sponsoring authority having prepared his report or as to when the sponsoring authorities have started preparing the report for forwarding the same to the detaining authority. All these vital aspects of the issue remain under the carpet of secrecy which is prejudicial to the interest of the petitioner. It is binding and statutory duty to share all documents material of which the sponsoring authority has firmed opinion to proceed against the petitioner under the PITNDPS Act, without which the entire detention order gets vitiated.

In view of above object of the preventive detention, it becomes very imperative on the part of the detaining authority as well as the executing authorities to remain vigilant and keep their eyes skinned but not to turn a blind eye in passing the detention order at the earliest from the date of the proposal and executing the detention order because any indifferent attitude on the part of the detaining authority or executing authority would defeat the very purpose of the preventive action and turn the detention order as a dead letter and frustrate the entire proceedings.

The adverse effect of delay in arresting a detenu has been examined by this Court in a series of decisions and the Court has laid down the rule in clear terms that an unreasonable and unexplained delay in securing a detenu and detaining him vitiates the detention order. In the decisions we shall refer hereinafter, there was a delay in arresting the detenu after the date of passing of the order of detention. However, the same principles would apply even in the case of delay in passing the order of detention from the date of the proposal. The common underlying principle in both situations would be the “live & proximate link” between the grounds of detention & the avowed purpose of detention.

The Court observed that,

Thus, from the above discussion it is abundantly clear that on account of non supply of material by sponsoring authority the petitioner was not in a position to give effective representation. Secondly, there is no direct ‘live and proximate link’ between the action of petitioner and the detention order passed by the detaining authority. In the grounds of detention order, not a single word has been whispered that the petitioner even after being bailed out was regularly in touch with his sources or mobilising them.

The petitioner was bailed out on 18.12.2020 and since then there are no criminal antecedents reported to his credit. He is already attending the proceedings of the court and cooperating with the trial in two cases before the trial court concerned and now whimsically the respondent authorities nabbed the petitioner under Section 3(1) of PITNDPS Act allegedly preventing him from the unknown unheard forthcoming offence which the petitioner is said to have been planning.

The Court further said that the preventive detention laws in India are a colonial legacy and have a great potential to be abused and misused. Laws that have the ability to confer arbitrary powers to the state, must in all circumstances, be very critically examined, and must be used only in the rarest of care cases. In cases of preventive detention, where the detenue is held in arrest not for a crime he has committed, but for a potential crime he may commit, the courts must always give every benefit of doubt in favour of the detenue, and even the slightest of errors in procedural compliances must result in favour of the detenue.

After having gone through the judgments of the Apex Court and having considered the contentions raised by counsel for the respective parties, the Court have no hesitation to say that the impugned detention order dated 4.3.2022 and the grounds are de hors the provisions of law, and therefore, the impugned detention order dated 4.3.2022 and the grounds dated 04.03.2022 on which the detention order was passed, are hereby set aside and consequently the petitioner is set at liberty forthwith, if he is not wanted in any other case.