Preventive detention must be with proper circumspection: Orissa HC

The court while quashing a detention under NSA held that the detaining authorities should exercise the privileges sparingly and "in those cases only where there is full satisfaction”

preventive detention

Orissa High Court quashed a detention order issued under NSA while observing that the same was illegal and bad in law as it failed to show apprehension of disruption of law and order or public threat. The Two-judge bench of Justices SK Panigrahi and Sanju Panda in its judgement dated December 16, 2020 held that preventive detention must be with proper circumspection and due care.

The petition was filed challenging the detention order passed by District Magistrate, Balasore, under the National Security Act. The petitioner was in judicial custody under charges of dacoity and certain sections of the Arms Act. A few days later, a detention order under NSA was issued against him. The petitioner submitted that the report did not disclose basic facts, material particulars which led to passing an order of detention and what is the basis and circumstances which led the District Magistrate to come to a conclusion that the detenue is terrorizing the innocent general public.

The state contended that on the basis of the materials available on record against the petitioner showing his anti-social and criminal activities in different cases for a considerable period which are prejudicial to the interest of the public at large and as the fact remains when the normal law of the land failed to curb the anti-social activities of the petitioner, the detaining authority was compelled to take recourse under the provision contained in NSA. The counsel appearing for the State also contended that the detention has been carried out as per procedure established by law.

Court’s observations

The court observed that “Preventive detention is not to punish a person for something he has done but to prevent him from doing it”. The detention order was passed basis his involvement his cases without disclosing circumstances for likelihood of breach of public order. The court held that for this reason, the detention order cannot be sustained.

The court also threw in a word of caution to be exercised by detaining authority as well as State government when confirming a detention order that the nature of allegations and offences alleged in the grounds of detention relate to public order and the grounds of detention should be prejudicial to maintenance of public order or they only relate to “law and order”.

The court held that the detaining authorities should exercise the privileges sparingly and “in those cases only where there is full satisfaction”. The court stated that “there would have to be a nexus between the detention order and the alleged offence in respect of which he was to be detained and in absence of a live link between the two, the detention order could not be defended”.

Court’s findings

The court held that, “Detaining Authority did not apply its mind before passing the order of detention so as to take the present petitioner to be a dangerous person and that he has become a threat to the public order”. It further stated that the “Detaining Authority has failed to strike a balance between the Constitutional and the legal obligation charged upon him before passing the detention order and the manner in which the power of detention has been exercised in this case”.

The court further observed that “Preventive detention is an exception to the normal procedure and is sanctioned and authorized for very limited purpose under Article 22(3)(b) with good deal of safeguards. The exercise of that power of preventive detention must be with proper circumspection and due care.”

The court stated that “legal obligation in this type of case, need to be discharged with great sense of responsibility even if the satisfaction to be derived is a subjective satisfaction such subjective satisfaction has to be based on objective facts.” The court declared the detention order to be illegal, bad in law and directed that the petitioner should not be kept in custody under this detention order. The court clarified that this order does not affect the criminal trials pending against the petitioner.

The complete order may be read here.



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