'Preventive detention draconian': Supreme Court quashes orders of Nagaland government against duo

The bench quashed the detention orders of May 30, 2024, passed and extended by the special secretary, home department of the Nagaland government.

New Delhi: The Supreme Court on Wednesday said preventive detention is a draconian measure and oral communication disclosing its grounds to the detenues would not be sufficient in terms of Article 22(5) of the Constitution.

A bench of Justices Sanjay Kumar and Augustine George Masih quashed the detention orders of Ashraf Hussain Choudhary and his wife Adaliu Chawang by the authorities in Nagaland on May 30, 2024 under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

The court noted 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.

"Preventive detention deprives a person of his or her individual liberties by detaining him or 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," the bench said.

The court allowed a plea by Mourtaza Hussain Choudhary against Gauhati HC's order which dismissed his writ petition against detention of his brother and his sister-in-law. The couple were already under arrest in an NDPS case and the investigating agency failed to file chargesheet, resulting in default bail.

The court cited the Constitution bench judgment in Harikisan Vs State of Maharashtra and others (2019), which stated that if the detenu is not conversant with the English language, in order to satisfy the requirements of the Constitution, the detenu must be given the grounds in a language which he/she can understand and in a script which he/she can read, if he/she is a literate person.

In the case, the bench noted the authorities claimed that the contents of the orders and the grounds of detention were explained to them in Nagamese, which would suffice.

"This argument must necessarily fail. Such oral communication, even if true, did not amount to adequate communication, in terms of Article 22(5) of the Constitution," the court said.

It said expecting the detenus to remember what was orally explained to them from the voluminous documents on June 03, 2024 over a length of time and to recall the same so as to make effective representations on June 12, 2024 would be practically impossible.

The detaining authority, viz, the Special Secretary, Home Department, Nagaland, did not even make separate grounds of detention but merely acted upon the proposals for detention forwarded to her by the Additional Director General of Police (Administration), Nagaland, the court pointed out.

"The cryptic orders of detention was passed that sufficient grounds were made out for the detention of Ashraf Hussain Choudhary and Adaliu Chawang. This is not in keeping with the statutory scheme," the bench said.

The court pointed out Section 6 of the Act specifically referred to the order of detention ‘being made’ on separate grounds. Further, Section 3(1) also recorded that the authorised officer, be it of the central government or of a state government, must be ‘satisfied’ that the person concerned required to be detained so as to prevent him/her from engaging in illicit trafficking of narcotic drugs and psychotropic substances.

"Such ‘satisfaction’ of the detaining authority necessarily has to be spelt out after application of mind by way of separate grounds of detention made by the detaining authority itself and cannot be by inference from a casual reference to the material placed before such detaining 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," the bench said.