Preventive detention can't be to prolong custody: Supreme Court

New Delhi: Observing that preventive detention can't be used just to prolong the custody of stubborn offenders, the SC has said it cannot be invoked because there is apprehension that an accused may not mend ways and commit another crime after getting bail.

SC said if an accused commits fresh offence while on bail, then it can be handled under ordinary law by seeking cancellation of bail or by challenging bail in higher courts, but it cannot be the sole reason for ordering preventive detention.

Quashing the preventive detention of a woman facing 3 cases under NDPS Act, the court held "mere apprehension on the part of the detaining authority that in the event of the detenu being released on bail, she was likely to indulge in similar crimes that would be prejudicial to maintenance of public order would not be a sufficient ground to order her preventive detention". In this case, the accused was in judicial custody but the Hyderabad collector had ordered to detain her if she gets bail to prevent her from committing crime. Detention order lacks proof of public threat: SC he authority, suspecting that she would return to peddling ganja, said, “I strongly believe that you are not amenable to ordinary law, unless you are detained by an appropriate order of detention as a last resort, in the interest of public at large”.

The accused challenged the order in Telangana HC on ground that detention order was passed merely as an alternative to cancellation of bail. HC rejected her plea and was of the view that repeated and well-planned actions of the detenu were sufficient to raise presumption of threat and alarm amongst the public regarding their health. SC quashed the HC order and said, “Detention order ought to indicate the recording of subjective satisfaction by the detaining authority in that regard.

It is well settled that there is a fine distinction between ‘law and order’ and ‘public order’. Mere registration of three offences by itself would not have any bearing on maintenance of public order unless there is material to show that narcotic drug dealt with by detenu was in fact dangerous to public health under the Act of 1986. This material is found to be missing in the order of detention.” The court said detention order does not indicate in what manner the maintenance of public order was either adversely affected or was likely to be adversely affected so as to detain the detenu.

It said that if the detaining authority was of the view that detenu had violated any conditions of bail, steps for cancellation of her liberty could have been taken but noted that it was not done in this case.