Preventive detention orders should be passed with extreme care: Bombay High Court

Mumbai: The Bombay High Court has urged authorities to pass preventive detention orders with extreme care and caution as a casual approach may deprive a person of his "most precious" fundamental right, his freedom and liberty.

A division bench of Justices Bharati Dangre and Manjusha Deshpande on July 2 quashed a preventive detention order passed against a man in October 2023, noting he was not given an opportunity to file a representation against the order, and directed that he be released.

The court said it was incumbent on the authority passing the detention order to act in a responsible manner, as it has an effect of depriving a person of his liberty, the most cherished value.

"The authority is expected to act with care and caution and see that the detention of the person is in larger interest and strictly for the purpose, which the detention law aims to achieve," the HC said.

The bench noted that when a statutory enactment confers an extraordinary power on the executive, such as to detain a person without recourse to the ordinary laws of land, then such a power has to be exercised with extreme care.

"Any casual approach may deprive a citizen of his most precious fundamental right, his freedom and liberty," the court said.

The exercise of the power to detain a person preventively shall be balanced against injustice to the person, who is detained, it said.

Rakesh Jejurkar was detained in October 2023 to prevent him from smuggling goods, abetting smuggling of goods and engaging in transport or concealing smuggled goods in future.

The Government of India's joint secretary passed the order under provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act.

It was alleged that the detenue was a habitual offender and was a key player in the smuggling of Areca nuts from Dubai to India.

The HC said when a person is detained preventively, then the safeguards provided under Articles 22 (4) and (5) (a person cannot be kept in preventive detention for more than three months and when a person is detained then he shall be given the earliest opportunity to make a representation against the order) must necessarily be adhered to.

The petitioner claimed the detaining authority was not clear in the order as to what activity the authorities intended to prevent.

The court set aside the petitioner's detention order and directed for him to be released.