Topics Covered in this article
Preventive detention, where there is a need for a clear and immediate connection between the reasons for detention and the intent of detention. The delay between the custody order’s date and the arrested person’s apprehension is lengthy and unknown. The court will conclude that the connection has been snapped. But if the cause is due to the recalcitrant nature of the detained in resisting detention, then the relationship is not snapped but reinforced. Preventive detention is an action taken under Section 151 of the Criminal Procedure Code, 1973 (CrPC) based on the fear that the person involved may take such wrong actions. Without orders from a judge and any subpoena, a police officer can apprehend a person if he receives any data showing such an individual can commit any crime. In such situations, Article 22 of the Indian Constitution guarantees immunity from arrest and imprisonment.
Facts of the case
- On July 19th 1989, two vehicles, one belonging to the petitioner-detained and another belonging to his partner, were seized to take the drug from the Customs Service. The drivers’ remarks were registered on the following day according to Article 108 of the Customs Act 1962.
- The chemical analysis results of the confiscated products had confirmed their use as the drug, which is considered illegal under the prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act, 1988.
- The detention authority then released an arrest warrant under Section 3(1) of the Act in December 1989, which is, after some five months of the seizure of the narcotic medication with a view to prohibiting the complainant from engaging in the abetting or shipment of narcotic substances.
- However, in the service of the arrest warrant in February 1990, the petitioner was seized and imprisoned, which is almost six months after the products were confiscated.
On the basis of the arguments presented by the counsels, two issues were created and deliberated upon by the Supreme Court
- The detention was an illegal detention.
As there was inordinate delay in serving the detention order and arresting the detenu, which was almost five months after the narcotic substance was seized by the customs officers. This also led to an excessive delay in issuing the arrest warrant and detaining the suspect.
- Unnecessary delay in non-supply of the relevant document?
Detenu’s right to render meaningful representation pursuant to Article 22(5) of the Constitution was severely prejudiced by the bail application and the order issued to the detainee thereon. It was urged in this connection that the facts in between the passing of the detention order and implementing the detention order have to be taken into account to considering whether the detention order should be served on the detenu even after passing of the order by this court dated January 22nd, 1990 stating that the petitioner shall not be arrested in the meantime. The counsel for the petitioner referred to the case of Binod Singh v. District Magistrate, Dhanbad, Bihar and Ors.
The rule of law
- Under Section 108 of the Customs Act, 1962:
The section of law provides power to summon persons and to give related evidence and to produce documents. The order of detention is, therefore, vitiated by non-application of mind. The learned counsel of the petitioner referred to certain portions of the statements recorded by the Customs Officials under section 108 of the Customs Act and contended with great emphasis that there was nothing to say that the petitioner was implicated in the smuggling or transportation of the heroin which has been seized from the backseat of the two cars.
The Customs Officials under section 108 of the Customs Act suggests explicitly that the petitioner who, well aware that these two vehicles would be used for the transport of banned narcotics, i.e. opium, and for the sale of the same, handed over the keys of the two cars to those two drivers who were sitting at a residence all together were to carry the contraband items.
- Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 Section 3(1) and 8.
The said section of the law under section 3 in The Narcotic Drugs and Psychotropic Substances Act, 1985 states that the power to add to or omit from the list of psychotropic substances. The Central Government may if satisfied that it is necessary or expedient so to do on the basis of (a) the information and evidence which has become available to it with respect to the nature and effects of, and the abuse or the scope for abuse of, any substance (natural or synthetic) or raw material or any salt or preparation of such substance or material.
Section 8 provides us with procedures to provide for detention in some instances for the purpose of preventing illicit traffic in narcotic drugs and psychotropic substances and for matters connected therewith. And the said substances which were found in the car were restricted to trade and are considered to be with illegal possession.
- Constitution of India, 1950: Article 22(5)
As the clause (5) of Article 22 reads, “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.”
Since the detenue intentionally absconded and evaded arrest, it cannot be held that delay was not explained and a link between grounds of detention had been snapped.
On the basis of various arguments and contemplations between the parties the court reached a decision and held that
- A ‘Living and Proximate Link’ must occur between the reasons for detention and the avowed object of arrest. However, where there is a lengthy and unexplained pause between the date of the warrant of custody and the apprehension of the detainee, the court may presume that the link is ‘snapped’ in inappropriate situations. Where the pause is not only sufficiently clarified but is found to be the product of the recalcitrant or refractory action of the detained in resisting arrest, there is a warrant to deem the ‘connection’ not snapped but reinforced.
- Looking at the Shafiq Ahmad v. District Magistrate, Meerut and Ors judgment which held that “….. We are, however, unable to accept this contention. If in a situation the person concerned is not available or cannot be served then the mere fact that the action under Section 7 of the Act has not been taken, would not be a ground to say that the detention order was bad.”
Also relying upon the judgment held in Bhawarlal Ganeshmalji v. State of Tamil Nadu & Anr. An order of detention was released in December 1974 against Appellant under section 3(1) of the COFEPOSA Act. It could not be executed because, despite a proclamation made under Section 7 of the Act, the detainee was getting away and could not be arrested.
The arguments that two notices were issued by the Department one which was issued on the mother of the petitioner and another on his brother ordering him to appear before the detention authority— have not been refuted by the petitioner. Instead, he absconded purposefully and thereby evaded capture. Consequently, it cannot be said that the delay was not clarified and that the connection between the reasons for the detention and the avowed intent of the arrest was breached. The similar reference was also made in this connection to the decision held in T.A. Abdul Rahman v. State of Kerala and Ors.
- They were received on September and October 13th, 1989, and in November 1989. The customs officers screened all these things, and the detention authority passed the order of detention on December 20th 1989, after considering all these things. However, it cannot be held that the five-month delay in rendering the impugned detention order made the detention unlawful and immoral as it was made on the stale ground. The detention order was released immediately, taking into account the necessary and critical information close to the passing of the order of detention threatened.
- Article 22(5) of the Constitution allows the detained person to be presented with all the necessary records referred to in the reasons for detention and deemed by the detaining authority to be subjectively comfortable with the order of detention.
- In the absence of a personal allegation of mala fide or prejudice rendered by the detainee against the detaining authority in person, there is no basis for the allegation of mala fides or non-application of mind to omit to file the affidavit-in-reply for itself. In the absence of a detaining authority, an affidavit must be sworn by a competent officer who has directly handled or processed the case in the Secretariat or presented it to the Minister.
Therefore the detention was held valid.
- Power to make orders detaining certain persons.
Where satisfied, a central government, or a State government officer not under the rank of a Joint Secretary to that government, approved directly by that government or by any State Government officer not under that government’s secretary specially authorised for this provision, may, if he is satisfied with the requirement, be licensed by that government.
If a State government or an order of arrest is released the State Government, Officer empowered by a State Government shall file an order report within ten days.
For Article 22 (5), the correspondence shall, in an extraordinary situation and for grounds to be registered in writing not later than fifteen days from the date, be made to any person detained according to an order of detention on the grounds for which the order has been made as soon as possible but not typically no later than five (5) days. The question of prejudice does not arise for non-supply of the documents to detenu. The bail application and order thereon were not considered by detaining authority in coming to his subjective satisfaction and impugned demand.
- Counter-affidavit because of mala fide considerations.
The counter-affidavit is an affidavit presented in response to a petition by the complainant. The respondent files a reply in the form of a testimony to the petition. A reaction is filed in the state of a Counter Affidavit in most Writ Petitions.
The counter-affidavit was lodged by the officer who dealt with the documentation about the specific detention order and forwarded those documents to the Minister concerned. Therefore, the counter-affidavit lodged on behalf of the respondents cannot but be taken into account. There is no accusation of mala fide or malice or extraneous consideration in rendering the impugned detention order directly against the detaining authority.
There has been a spike in the trade of illegal drugs in India, similar to abuse and dependency issues. It created illegal drug demand in the world and contributed to illegal crops and the development of narcotics. Inadequate regulation of illicit drug transit trafficking is noticed by the declining legal provisions in the Narcotic and Psychotropic Substances Act, 1985 and other legislative and administrative steps.
The petitioner filed a writ petition challenging the validity of the customs officers’ detention under the points as mentioned.
- It was unconstitutional because 241(a) there was an unreasonable pause in serving the warrant of detention and arresting the detained person;
- it has been spread to stale soil, i.e. five months after the seizure of narcotic drugs; and
- there was a lengthy pause in the disposal of the image of the detainee;
- The inability to include appropriate records, i.e. the application for bail and the decision rendered thereon, severely prejudiced the detained person’s right to adequate representation according to Article 22(5) of the Constitution;
- The claims contained in the counter-affidavit cannot be taken into account because the detention authority itself did not swear it and
- for non-application of mind, the detention order was vitiated.
The enforced warrant of arrest is thus very in keeping with the rules, and the same is correct. Therefore the detention was considered to be valid. Therefore, in light of the observations mentioned above, the Legislature’s emphasis on the requirement of the parties’ consent during the phase of being subjected to arbitration is perspicuous.
  3 SCR 905
  4 SCC 556
  2 SCR 633
  4 SCC 741