Preventive detention ‘draconian’ measure, needs safeguards: SC

The Supreme Court on Wednesday underscored the necessity of strict adherence to constitutional and statutory safeguards in cases of preventive detention, pointing out that such a “draconian measure” cannot override fundamental rights without strict adherence to procedural protections.

“Needless to state, as preventive detention deprives a person of his/her individual liberties by detaining him/her for a length of time without being tried and convicted of a criminal offence, the prescribed safeguards must be strictly observed to ensure due compliance with constitutional and statutory norms and requirements,” stressed a bench of justices Sanjay Kumar and AG Masih.

“Preventive detention is a draconian measure whereby a person who has not been tried and convicted under a penal law can be detained and confined for a determinate period of time to curtail anticipated criminal activities,” the bench noted, adding that such extreme measures must strictly conform to the prescribed safeguards under the Constitution and statutory law.

Quashing the detention orders against a couple accused in a narcotics case, the court held that procedural lapses in the detention process, including failure to serve the detention orders in a language known to the detainees, rendered the orders unsustainable.

The issue of preventive detention has been a subject of intense debate, particularly in the context of Jammu and Kashmir following the abrogation of Article 370 in August 2019. In one of the most notable instances of recent years, several political leaders, including former chief ministers Farooq Abdullah, Omar Abdullah and Mehbooba Mufti, were placed under preventive detention for months under the Public Safety Act. Many of them challenged their detention in constitutional courts, but judicial intervention remained limited.

The current case pertained to Ashraf Hussain Choudhary and his wife, Adaliu Chawang, who were placed under preventive detention by the Nagaland government under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act). The couple’s detention orders, issued on May 30, 2024, followed an incident in which police seized 239 grams of heroin from a vehicle in Khuzama village on April 5, 2024. Based on statements from one of the accused in the case, the authorities arrested Choudhary and Chawang on April 12, 2024.

Following their arrest, the investigating officer proposed their preventive detention, citing concerns that they might resume illicit trafficking if released. The special secretary (home department) subsequently passed orders directing their detention in Dimapur District Jail for an initial period of three months, later extended to March 2, 2025. Advocate Pranjal Kishore argued the matter for the detenues in the Supreme Court.

The Supreme Court took exception to the fact that the detention orders and supporting documents were not provided to the detainees in a language they could understand. While the authorities claimed that the orders were orally explained in Nagamese, the bench referred to the Constitution bench ruling in Harikisan vs State of Maharashtra (1962), which held that mere oral communication of detention grounds is insufficient.

“It is an admitted fact that neither Ashraf Hussain Choudhary nor Adaliu Chawang knew English, the language in the orders of detention and the supporting documents,” said the bench, holding that detainees must receive the grounds of detention in a language and script they can comprehend.

The court also pointed out that the authorities acted mechanically without due application of mind. It noted that at the time of the detention orders, neither Choudhary nor Chawang had applied for bail.

“There was no material for the detaining authority to form an opinion that there was a likelihood of their release on bail.. The authorities concerned paid mere lip service to the mandatory requirements and mechanically went through the motions while dealing with the cases of these two individuals,” stated the bench, adding that their eventual grant of default bail in November 2024 due to procedural lapses by the prosecution further weakened the case for preventive detention.

Ashraf’s brother had challenged the detention orders before the Gauhati high court, which dismissed the petitions on August 29, 2024. However, the Supreme Court found the high court’s reasoning flawed, holding that it failed to correctly apply settled legal principles on preventive detention.

Setting aside the high court ruling, the Supreme Court ordered the immediate release of Choudhary and Chawang.