PREVENTIVE DETENTION

1. PREVENTIVE DETENTION Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988

2. Need to have the law • The law is not a substitute for normal law or to be used in lieu of the same • meant to strengthen the hands of law enforcement authorities • additional measure to tackle organised drug trafficking and habitual offenders, to prevent continued illegal activities of persons involved in drug trafficking, etc

3. Recommendation of Cabinet Committee constituted for combating drug trafficking and to prevent drug abuse was to have additional legislative measures in the form of preventive detention scheme • PITNDPS Ordinance, 1988, was promulgated on 4th July, 1988, as per recommendation of Cabinet sub-Committee

4. Objective and reasons • The Ordinance was made into law in August, 1988 • The objects and reasons of the Act are spelt out in the Preamble itself • Illicit drug trafficking poses serious threat to the health and welfare of the people • the activities of persons engaged in such crime have deleterious effect on economy

5. the illicit drug trafficking activities are clandestinely organised • certain areas are highly vulnerable to illicit drug trafficking • the persons involved and the manner in which these are carried out are organised • Object is to effectively prevent such activities by providing detention of persons

6. Salient features • Preventive detention is resorted to against persons engaged in illicit trafficking of narcotic drugs and psychotropic substances • Illicit trafficking means activities relating to- • cultivation of opium poppy, cannabis or coca plant

7. engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter-State, export inter-State, import into India, export from India or transhipment, of narcotic drugs or psychotropic substances

8. financing, directly or indirectly any such activities • abetting or conspiring in the furtherance or in support of doing such activities • harbouring persons engaged in such activities • handling or letting premises for the carrying of such activities

9. Power to make order • Central Govt. or any officer of Central Govt. not below the rank of a Joint Secy. • State Govt. or any officer of State Govt. not below the rank of a Secretary • the officer has to be specially empowered for this purpose by Central Govt. or State Govt. as the case may be

10. The authority has to be satisfied that a person, who may be a foreigner, need to be prevented from engaging in illicit trafficking in narcotic drugs and psychotropic substances • the authority may make an order directing that such person may be detained

11. If order has been made by State Govt. or officer of State Govt, then the State Govt. shall send a report in this regard within ten days to the Central Govt. • Grounds of detention shall be communicated to the detenu as soon as may be after detention, ordinarily within five days

12. Only in exceptional situation, the grounds of detention may be served not later than fifteen days • reasons for delay of service need to be recorded in writing • this is for the purposes of Article 22(5) of the Constitution of India

13. Article 22(5) • When a person is detained in pursuance of an order providing for preventive detention • -the authority making the order of detention shall, as soon as may be, communicate the detenu the grounds on which the order has been made • -authority shall afford the detenu the earliest opportunity of making representation

14. Execution • Detention order is to be executed in the same manner as a warrant of arrest is executed as provided under Cr.P.C. (S.4) • Appropriate Govt. may specify by order the place and conditions of detention of detenu. • Detenu may be removed from one place to another place of detention. Consent of State Govt.- if to be removed to that State(S.5)

15. Validity • If order under S.3(1) has been made on two or more grounds, the order is deemed to have been made on each ground separately • if one or some of the grounds is or are vague, non-existent, not relevant, invalid, or not connected or not proximately connected with detenu, the order shall not be invalid or inoperative

16. Subjective satisfaction of detaining authority with respect to the remaining ground or grounds holds good (S.6) • The person to be detained or the place of detention is outside the limits of the territorial jurisdiction of the detaining authority will not make the order invalid or inoperative (S.7)

17. Absconding persons • The appropriate Govt. has reason to believe that the order of detention can not be executed because the person in respect whom it has been made is absconding or concealing himself • it may make a report of the fact to the jurisdictional Metropolitan Magistrate or Magistrate of the first class

18. Provisions of S.82, 83, 84 and 85 of Cr.P.C. relating to proclamation and attachment of property for person absconding apply • The appropriate Govt. may also notify in the official Gazette directing the person to appear before such officer, at such place and within such period. Non compliance is a cognizable offence. (S.8)

19. Advisory Boards • Article 22(4) of the Constitution of India- • No law providing for preventive detention shall authorise detention of a person for a longer period than three months • unless an Advisory Board constituted under the Article reports that there is in its opinion sufficient cause for such detention

20. Advisory Board is constituted in accordance with the recommendation of the Chief Justice of the appropriate High Court • It shall consist of a Chairman, who shall be a sitting judge of the appropriate High Court and not less than two other members, who shall be sitting or retired judges of any High Court

21. No detention shall be authorised beyond the maximum period prescribed by any law made by the Parliament ..Art. 22( 7) • As per S. 9 of PITNDPS Act, appropriate Govts. shall constitute Advisory Boards • appropriate Govt. shall make a reference to the Advisory Board within five weeks from the date of detention of a person

22. The Advisory Board, after considering all material facts and hearing person, prepares its report specifying its opinion as to whether or not there is sufficient cause for the detention of the person concerned • The report must be submitted within eleven weeks from the date of detention of the person concerned

23. The appropriate Govt. may confirm the detention order and continue detention for such period as it thinks fit if the Board opines that there is sufficient cause for detention • if there is no sufficient cause, the appropriate Govt. shall revoke the detention order and cause the person to be released

24. Period of detention • A detenu may be detained beyond three months but not exceeding six months without referring to the Advisory Board, if a declaration has been made (S.10) • The Central Govt. or an officer not below the rank of Additional Secy. to that Govt. makes a declaration within five weeks from the date of detention

25. If it is satisfied that a person in respect of whom an order has been made engages or likely to engage in illicit drug trafficking in areas highly vulnerable to drug trafficking • Areas highly vulnerable are international borders, coastal areas (100km inland), Indian customs waters, customs airports, metropolitan cities, etc.

26. In such cases the appropriate Govt. shall make reference to the Advisory Board within four months and two weeks from the date of detention • The Advisory Board shall give its report within five months and three weeks • It shall gives its opinion whether there is sufficient cause for continued detention

27. The maximum period of detention, where the detention order has been confirmed, is one year from the date of detention where a declaration has not been made • The maximum period of detention, where detention & continued detention has been confirmed, is two years from the date of detention where a declaration has been made

28. Revocation • Detention order may be revoked or modified at any time • - by the Central Govt., if it has been made by an officer of State Govt. or Central Govt. • - by the State Govt., if it has been made by an officer of the State Govt. • Revocation shall be no bar to make another detention order against the same person

29. Temporary release • Central Govt. may direct the release of a detenu for a specific period of time, or cancel his release with or without condition acceptable to the detenu • State Govt. can do the same in a case where it or its officer has made the order • the detenu may have to enter into a bond with sureties

30. the detenu so released shall surrender himself at the time and place and to the authority specified • failure to surrender without sufficient cause is punishable • No person against whom a detention order has been made, which is in force, shall be released on bail or bail bond or otherwise

31. Protection • Action taken in good faith in pursuance of the Act is protected • No suit or other legal proceedings shall lie against the Central Govt or a State Govt. • No suit, prosecution or other legal proceedings shall lie against any person

32. Forfeiture proceedings • Chapter VA proceedings can be initiated against a person, his relatives and associates • If a detention order has been made against such person under PITNDPS Act • The order has not been revoked on the basis of report of the Advisory board • or by a Court of competent jurisdiction

33. Court Rulings • Syed Farooq Mohammad vs. UOI & anr. (SC)- • -The detaining authority did not consider the bail application order in coming to his subjective satisfaction; non-supply to the detenu of the said document does not affect the detenu’s right to make effective representation

34. -It can not be said that the delay of five months in making the impungned order of detention rendered the detention illegal and bad as it was made on stale ground. The detention order has been made with promptitude considering the relevant and vital facts proximate to the passing of the impungned order of detention.

35. Binod Singh vs. District Magistrate, Dhanbad. (SC) (case under NSA) • -There must be awareness of the facts necessitating preventive custody of a person..If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be excercised.

36. Bhawarlal Ganeshmalji vs. State of Tamil Nadu, (SC) (case under COFEPOSA) • -There must be live and proximate link between grounds of detention and the avowed purpose of detention…the link is snapped if there is a long and unexplained delay between the date of the order of detention and the arrest of detenu.

37. When the delay is not only adequately explained but is found to be the result of the detenu’s recalcitrant or refractory conduct in evading arrest, there is warrant to consider the link not snapped but strengthened.

38. Rama Dhondu Barode vs. V.K.Saraf, Commissioner of Police and ors., (SC) • ...there is a constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of detention order clamped upon him and requesting for his release, to consider

39. the said representation with reasonable dispatch and to dispose of the same as expeditiously as possible. This constitutional requirement must be satisfied with respect… what is reasonable dispatch depends on the facts and circumstances of each case..

40. Gazi Khan @ Chotia vs. State of Rajasthan and anr. (SC) • -The representation made by the detenu was not decided within a reasonable time and hence the delay is fatal to the detention • (here delay of seven days to put up a note could not be explained)

41. Right of the detenu to make effective representation is adversly affected because- • Non-supply of relied upon documents of the grounds of detention in the language known to the detenu • Non-supply of legible copies of the documents

42. There must be credible information or cogent reasons apparent on the record that the detenu if enlarged on bail would act prejudicially to the interest of public order • Merely the possibility of being released on bail will not suffice to make order and hence will not justify subjective satisfaction of the detaining authority

43. Kamlesh Kumar Ishwardas Patel v UOI, SC • The right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the authority who has made the order of detention at the time when he is served with the grounds of detention

44. Court rulings • Kamleshkumar Ishwardas Patel v UOI, SC • Where the detention order…was issued not by the Central Govt. or by the State Govt. but by an officer specially empowered to pass such an order, the grounds of detention must specifically inform the detenu that he would be entitled to represent against the.. order not only to the Advisory Board and

45. the Central Govt or State Govt, as the case may be, but also to the empowered officer, who was the detaining authority. • Akhilesh Kumar Tyagi vs. UOI, Delhi • ..the words used in Art. 22(5) are of wider import and are not restricted to a detention order.. but will also cover an order.. which results in continued detention..

46. ..there is a violation of Art. 22(5) in not informing the detenu that he had an opportunity to represent to the declaring authority.. the order is impliedly declared void from its inception..Held.. declaration.. was illegal when it was issued…report of Advisory Board was issued beyond eleven weeks.. detention beyond 3 months is bad.

47. Mohd Azad @ Avid Perviz vs. State (Govt. of NCT, Delhi Order dtd. 16.5.02 • ..this matter is covered by the decision of this court in Akhilesh Kumar Tyagi v. UOI.. The writ petition is allowed in terms there of. The initial period of detention of three months is sustained

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