Supreme Court says laws on preventive detention necessarily harsh, procedure must be strictly adhered to

The top court has said this while ordering the release of a man whose detention was extended twice without the authorities considering his representation.

Laws on preventive detention are necessarily harsh, curtail the personal liberty of an individual who is kept behind bars without trial and so the procedure prescribed should be strictly adhered to, the Supreme Court has said while ordering the release of a man whose detention was extended twice without the authorities considering his representation.

A bench of Justices Aniruddha Bose and Sudhanshu Dhulia set aside an order of the Jharkhand High Court upholding the detention of Prakash Chandra Yadav alias Mungeri Yadav, who was declared an 'anti-social element' under the Jharkhand Control of Crimes Act, 2002.

The bench, in its order dated July 10, held the procedure of law was not followed, and ordered Yadav's release from Rajmahal prison in Jharkhand's Sahibganj district.

Also Read | Supreme Court stays Karnataka HC order on govt power to regulate fees

"All laws on preventive detention are necessarily harsh. They curtail personal liberty of an individual, who is kept behind bars without any trial. In such cases, procedure is all a detenue has. Laws of preventive detention must therefore be strictly applied," the bench said.

The Jharkhand Control of Crimes Act, 2002 deals with externment and detention of anti-social elements, subject to the procedure given in the Act. Under the provisions of the Act, the state government can detain an anti-social element in order to prevent him from indulging in undesirable activities.

The bench said the extended period of detention of the appellant beyond the period of three months was unauthorised and illegal.

"The orders dated November 7, 2022 and February 7, 2023 which extended the detention period are hereby quashed. The orders of the Division Bench of Jharkhand High Court dated March 2, 2023 and November 2, 2022 of the Single Judge… are also set aside," it said.

The top court agreed with the submission of Jharkhand's Additional Advocate General Arunabh Chowdhury that there were no grounds for challenging the initial detention order dated August 8, 2022 and said Yadav has only challenged the subsequent orders which extended the period of detention. These orders were dated November 7, 2022 and February 7, 2023 which extended Yadav's detention by three and six months respectively.

Yadav was served with a copy of the initial detention order dated August 8, 2022 passed by the district magistrate of Sahebganj when he was in judicial custody in Rajmahal prison.

The order mentioned the grounds for detaining Yadav and gave the details of 18 pending cases against him which ranged from causing simple hurt to extortion and murder.

The top court noted that Yadav filed a representation against the detention order which was handed over to the jail authorities at Sahibganj on August 18, 2022, a claim which the state disputed.

This representation, according to Yadav, was sent on his behalf through email and post a day later on August 19, 2022 and was received by the state government on August 26, 2022.

In the meantime, the state government had, through the department of Home, Prison and Disaster Management approved the detention order on August 12, 2022.

The bench noted for the continuance of Yadav's detention, the state government sought the opinion of an advisory board constituted for such purposes, and relevant documents were sent to the board within three weeks of the detention order. The board took a decision on it on September 2, 2022.

"The decision of the advisory board was that there were sufficient materials on record for extension of the period of detention beyond the period of three months. Based on the report of the advisory board, the state government subsequently passed an order on September 15, 2022 confirming the initial detention order.

"Subsequently, vide order dated November 7, 2022, the order of detention dated August 8, 2022 was extended for a further period of three months from November 8, 2022 to February 7, 2023 and by order dated February 7, 2023 for a further period of six months from February 7, 2023 upto August 7, 2023," the bench noted.

Senior advocate Neeraj Kishan Kaul, appearing for Yadav, said while the advisory board took its decision under Section 19 of the Act, the representation which Yadav had made on August 18, 2022 was not placed before the board, and therefore the decision of detention is in violation of the law.

According to Section 19 of the Act, within three weeks of detention, the government must present before the advisory board the grounds for detention and the representation of the affected person.

The state government submitted there was no such representation by the detainee till that date.

Kaul relied on the affidavit filed by Sub-Divisional Police Officer (SDPO) before the high court wherein the officer had admitted under oath that such a representation was made by Yadav before the jail authorities on August 18, 2022.

The bench said case records disclose that when the representation was made by Yadav before the jail authorities on August 18, 2022, the latter forwarded it to the officials concerned the same day.

"Therefore, the contention of the respondent-State that there was no representation on record, cannot be accepted. There is sufficient proof before this Court to safely presume that the representation was made by the detenue/appellant on August 18, 2022," the bench said.

It added the division bench of the high court has not accepted this contention of Yadav largely on the ground that in order to verify the fact of the detenue filing a representation on August 18, 2022 the jailor of the concerned jail ought to have been made a party.

"We are, however, not in agreement with this line of thought (of the HC) as we have absolutely no doubt in our mind that as per the given facts and circumstances of the case and considering that the detenue was in jail, he has been able to satisfy this Court that there was a representation placed before the authorities on August 18, 2022," it said.

It said that the decision was taken by the advisory board on September 2, 2022 without considering the representation of the appellant.

"To that extent, the decision of the advisory board and subsequent decision of the state government extending the period of detention vide order dated November 7, 2022 and February 7, 2023, becomes bad, as the statutory procedural requirements have not been complied with," the court said.