Courts must keep a check on abuse of preventive detention law: SC

ByAbraham Thomas
Apr 12, 2023 09:01 AM IST

The Supreme Court has said that laws that have the ability to confer arbitrary powers to the State, must in all circumstances, be very critically examined

Preventive detention laws in India are a colonial legacy that have great potential to be abused and misused by the State and any slightest error in compliance of procedure by authorities should result in favour of the detenue, the Supreme Court has said.

The Supreme Court of India. (File Photo)
The Supreme Court of India. (File Photo)

Setting aside a detention order against a person under Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act, a bench of justices Krishna Murari and V Ramasubramanian on Monday said: “Preventive detention laws in India are a colonial legacy, and as such, are extremely powerful laws that have the ability to confer arbitrary power to the State. In such a circumstance, where there is a possibility of an unfettered discretion of power by the government, this court must analyse cases arising from such laws with extreme caution and excruciating detail, to ensure that there are checks and balances on the power of the government.”

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A month after he was detained at the instance of Directorate of Revenue Intelligence in February last year, Pramod Singla sent a representation to the Centre and in April, shot another representation to the Advisory Board, challenging his detention. On May 9, the Centre rejected his representation. The detenue complained that the grounds of his detention supplied to him were illegible. On November 3, the Delhi high court refused to quash the detention order against Singla, prompting him to approach the top court. On January 5, the SC released Singla from custody.

The bench said, “In cases of preventive detention, every procedural irregularity, keeping in mind the principles of Article 21 and Article 22(5) of the Constitution of India, must be accrued in favour of the detenue. In the present case at hand, the appellant detenue herein has been supplied with illegible documents in a foreign language. These are the very same documents that the authorities have relied upon to detain the appellant herein.”

Article 21 assures the protection of life and personal liberty while Article 22(5) says when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

Deciding finally on his petition, the bench said, “The courts, in circumstances of preventive detention, are conferred with the duty that has been given the utmost importance by the Constitution, which is the protection of individual and civil liberties. This act of protecting civil liberties, is not just the saving of rights of individuals in person and the society at large, but is also an act of preserving our Constitutional ethos, which is a product of a series of struggles against the arbitrary power of the British State.”

Laws that have the ability to confer arbitrary powers to the State, must in all circumstances, be very critically examined, and must be used only in the rarest of rare cases, the court said while setting aside the detention order. Since in preventive detention, the detenue is held in arrest not for a crime he has committed, but for a potential crime he may commit, the courts must always give every benefit of doubt in favour of the detenue, and even the slightest of errors in procedural compliances must result in favour of the detenue, the bench added.

It was the case of DRI that the petitioner was part of a syndicate comprising of Chinese, Taiwanese, and South Korean nationals who were in the practice of smuggling gold into India through Air Cargo by concealing gold in transformers of electroplating/ reworking machines etc.

In November 2021, the DRI officials seized a purported consignment and 80.126 kg of 24 carat foreign-origin gold was recovered from the said consignment. Singla being a suspect, his shop was checked by DRI officials and 7 pieces of gold weighing 5.409 Kg with a market value of over 2 crore was recovered from his premises. He was arrested in November 2021 but granted bail in December 2021. Subsequently, the DRI sent a proposal for his detention under the COFEPOSA Act following which the detention order was passed on February 1, 2022.

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