Prevention detention is a “draconian measure” and the “prescribed safeguards must be strictly observed” when it is used, the Supreme Court has held.
Under the preventive detention law, invoked usually in smuggling and drug-related cases with international ramifications, a person can be held without trial or conviction — even if they have secured bail — to prevent them committing a crime. However, the detention comes up every three months before an advisory committee headed by a sitting or former high court judge.
The bench of Justice Sanjay Kumar and Justice Augustine George Masih passed the verdict while quashing the detention of Ashraf Hussain Choudhary and his wife Adaliu Chawang, held preventively in Nagaland since May in a drug smuggling case.
The apex court underscored that several constitutional and statutory safeguards had been ignored while detaining the couple. Among these were the stipulations not to detain without furnishing the grounds in a language understood by the detainee, or without sufficient material to justify the detention.
“Preventive detention is a draconian measure whereby a person who has not been tried and convicted under a penal law can be detained and confined for a determinate period of time so as to curtail that person’s anticipated
criminal activities,” the judgment, authored by Justice Kumar, said.
“This extreme mechanism is, however, sanctioned by Article 22(3)(b) of the Constitution of India. Significantly, Article 22 also provides stringent norms to be adhered to while effecting preventive detention.... The prescribed safeguards must be strictly
observed to ensure due compliance with constitutional and statutory norms and
requirements.”
The apex court noted that “neither Ashraf Hussain Choudhary nor Adaliu Chawang knew English, the language in the orders of detention and the supporting documents”.
“The proposals for their detention also recorded that the only languages known to Adaliu Chawang were Nagamese, Manipuri and Hindi, while Ashraf Hussain Choudhary knew Nagamese, Bengali and Hindi,” it said.
Justice Kumar noted that there was no material for the detaining authority to have formed an opinion that there was a likelihood of either Ashraf or Adaliu being released on bail.
“Further, Section 3(1) (of the Narcotic Drugs and Psychotropic Substances Act, 1988) also records that the authorised officer, be it of the Central Government or of a State Government, must be ‘satisfied’ that the person concerned is required to be detained so as to prevent him/ her from engaging in illicit trafficking of narcotic drugs and psychotropic substances,” the judgment said.
Ashraf’s brother Mortuza Hussain Choudhary had filed the petition challenging a Gauhati High Court judgment of August 2024 that dismissed the couple’s pleas against their detention.