Preventive detention, serious invasion of personal liberty, says SC

'It becomes very imperative on the part of the detaining authority as well as the executing authorities to remain vigilant,' the SC bench said

The Supreme Court on Friday said preventive detention is a serious invasion of personal liberty, so the authorities concerned must strictly adhere to whatever little safeguards provided under it.

A bench of Chief Justice U U Lalit and Justices S Ravindra Bhat and J B Pardiwala said the normal methods open to a person charged with commission of any offence to disprove the charge or to prove his innocence at the trial are not available to the person preventively detained.

“The preventive detention is a serious invasion of personal liberty and the normal methods open to a person charged with commission of any offence to disprove the charge or to prove his innocence at the trial are not available to the person preventively detained," the bench said in a judgement.

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The bench said in cases of preventive detention, it becomes very imperative on the part of the detaining authority as well as the executing authorities to remain vigilant in passing the detention order.

The top court allowed a petition by Sushanta Kumar Banik against the Tripura High Court order of June 1, 2022, which rejected his application questioning the legality of the detention order.

The bench pointed out that it appears the order of preventive detention came to be passed essentially on the ground that he is a habitual offender as in the past, two FIRs were registered against him for the offences punishable under various sections of NDPS Act.

“However, what is important to note is that in both the cases registered under the NDPS Act, 1985, the appellant herein was ordered to be released on bail by the special court, Tripura,” the court said.

If the appellant was ordered to be released on bail despite the rigours of Section 37 of the NDPS Act, 1985, then the same is suggestive that the court concerned might not have found any prima facie case against him, the bench said.

“Had this fact been brought to the notice of the detaining authority, then it would have influenced the mind of the detaining authority one way or the other on the question whether or not to make an order of detention. The State never thought to even challenge the bail orders passed by the special court releasing the appellant on bail," the bench said.