The Supreme Court has directed the authorities not to issue preventive detention orders on the basis of casual reference to the material placed before them, but on independent grounds of detention.
The Bench of Justice PV Sanjay Kumar and Justice Augustine George Masih held that a mere statement that the authority was ‘satisfied’ on examination of the proposals and supporting documents was insufficient and did not meet the constitutional or statutory requirements.
Quashing the detention orders issued against two of the appellants by the Special Secretary, Home Department, Government of Nagaland, the top court of the country ruled that preventive detention orders should not be based on casual reference, rather, they should reflect an independent application of mind.
The Bench found that the detaining authority, instaed of framing independent grounds of detention, merely relied on proposals forwarded by the police.
Calling it a legally unsustainable approach, the top court of the country said that such ‘satisfaction’ of the detaining authority necessarily has to be spelt out after the application of mind by way of separate grounds of detention made by the detaining authority itself.
The same could not come through an inference from a casual reference to the material placed before such authority or a bald recital to the effect that the detaining authority was ‘satisfied’ on examination of the proposals and supporting documents that the detention of the individuals concerned was necessary, it added.
The Bench passed the order on a petition challenging the detention of the appellants under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, on the grounds that the orders lacked clear reasoning and were passed mechanically.
The case originated from a narcotics seizure on April 5, 2024, wherein Nehkhoi Guite (driver), Hoinu alias Vahboi and Chinneilhing Haokip alias Neopi were apprehended at Khuzama village while traveling in a four-wheeler. A search of the vehicle led to the discovery of 239 grams of heroin concealed in 20 soap cases inside the gear lever cover. A case was registered against the accused under Sections 22(b) and 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
During interrogation, Chinneilhing Haokip alias Neopi implicated Adaliu Chawang, stating that she had previously supplied heroin and received payments for the same.
Following this, Ashraf Hussain Choudhary and Adaliu Chawang were arrested on April 12, 2024 in Dimapur and remanded to custody. However, despite their detention, the investigating officer recommended preventive detention, arguing that if released, they might continue engaging in illicit trafficking.
The Additional Director General of Police (Administration), Nagaland, forwarded this proposal to the Special Secretary, Home Department, who then issued detention orders without framing independent reasons.
The accused were eventually enlarged on bail by the trial court owing to a delay in filing of the charge sheet, yet they remained incarcerated because of the detention orders. They challenged the detention orders in the Gauhati High Court, which upheld the detention, leading the accused to approach the Supreme Court.
The Apex Court court noted that the detenus were already in judicial custody when the orders were passed, and there was no material to suggest that they had applied for bail. Despite this, the authorities assumed that they were likely to be released and engage in illicit activities.
Preventive detention orders against persons already in custody must be based on clear material indicating a real possibility of release and future prejudicial activities, noted the Bench.
The top court of the country said there must be cogent material before the officer passing the detention order to infer that the detenu was likely to be released on bail. Such an inference must be drawn from the material on record and must not be the ipse dixit of the officer passing such an order, it added.
The Bench further found serious procedural lapses, including the fact that the detenus were served copies of their detention orders in English, a language they did not understand.
The authorities claimed that the contents were explained orally in Nagamese, however, the Court rejected their arguments on the grounds that oral explanations did not fulfill Article 22(5) of the Constitution, mandating effective communication of detention grounds.
The Bench further observed that the detaining authority had not formulated separate grounds of detention, violating Section 6 of the Act that required detention orders to be based on distinct and self-contained grounds.
The top court of the country said the authority’s failure to record its independent satisfaction rendered the detention unlawful.
Setting aside the Gauhati High Court order, the Supreme Court directed immediate release of the detenus.