The Telegraph
Since 1st March, 1999
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SC clears air on detention

New Delhi, Jan. 19 (PTI): The Supreme Court has ruled that preventive detention of a known smuggler cannot be termed punitive in nature, and the period of such detention could not be discounted from the sentence of imprisonment awarded to him after conviction in a smuggling case.

A bench of Justices Shivaraj V. Patil and Arijit Passayat said: “Detention under the preventive detention laws is not punitive but essentially a precautionary measure intended to prevent and intercept a person before he commits an infra-active act which he had done earlier.”

The ruling came on a petition filed by Maliyakkal Abdul Azeez, who claimed he was entitled to be freed under Section 428 of the Criminal Procedure Code for the period of preventive detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act since the detention was quashed by Delhi High Court.

Quoting the 1917 case of Rex vs Halliday, the bench said preventive detention “is not a punitive but precautionary measure”.

“The object is not to punish a man for having done something but to intercept him before he does it and to prevent him from doing it.”

Though no offence was proved nor any charge formulated against the person under preventive detention, the justification for such detention was suspicion or reasonable probability, the apex court said.

“In this sense, it is an anticipatory action,” the bench said, adding that “preventive justice requires an action to be taken to prevent apprehended objectionable activities”.

“In case of punitive detention, the person concerned is detained by way of punishment after being found guilty of wrong doing where he has the fullest opportunity to defend himself, while preventive detention is not by way of punishment at all, but it is intended to prevent a person from indulging in any conduct injurious to the society,” the bench said, distinguishing the two kinds of detention.

The apex court dismissed Azeez’s appeal and upheld the orders of the trial court which had convicted him in a case of smuggling.

Kerala High Court had rejected Azeez’s appeal against the trial court order. The apex court upheld the high court verdict that stated the period spent under Cofeposa was not to be considered as detention for the purpose of the criminal case.

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