Does basing preventive detention solely on apprehension of repeated narcotics offences, after bail has been granted under the NDPS Act, violate the statutory and constitutional safeguards?
Summary
| Category | Data |
|---|---|
| Case Name | WPA(H)/22/2025 of JAHANARA BIBI @ JAHANARA BEGAM @ JAHANARA MONDAL @ JANU Vs UNION OF INDIA AND ORS. |
| CNR | WBCHCA0102832025 |
| Date of Registration | 04-03-2025 |
| Decision Date | 25-08-2025 |
| Disposal Nature | DISPOSED |
| Judgment Author | Hon’ble Justice Reetobroto Kumar Mitra and Hon’ble Justice Tapabrata Chakraborty |
| Court | High Court of Judicature at Calcutta |
| Bench | Two-Judge Bench |
| Precedent Value | Binding on Calcutta High Court and its subordinate courts |
| Overrules / Affirms |
|
| Type of Law | Preventive detention under the PIT-NDPS Act versus bail under the NDPS Act |
| Questions of Law |
|
| Ratio Decidendi | The court held that preventive detention is an exception to personal liberty under Article 21 and must meet strict statutory and constitutional safeguards. A detention order issued after a person has been granted bail in corresponding NDPS prosecutions cannot rest solely on the apprehension of repeat offences. Delay in execution and lack of contemporaneous material to show a real threat breaks the necessary proximate link. The detaining authority’s subjective satisfaction must be based on high-order probative evidence, not conjecture or the mere fact of bail. |
| Judgments Relied Upon |
|
| Logic / Jurisprudence / Authorities Relied Upon | Preventive detention is a “necessary evil” under Article 21; it cannot substitute punitive process and must be confined within strict statutory and constitutional limits. The order must demonstrate subjective satisfaction with contemporaneous, high-value material. Bail granted under the ordinary criminal law (NDPS Act) bars invoking extraordinary preventive detention powers on the same grounds. |
| Facts as Summarised by the Court | The petitioner was arrested in three separate NDPS cases (1.01 kg heroin; 30 kg ganja; 7 kg ganja), granted bail each time, and later served with a preventive detention order dated 5 September 2024 under the PIT-NDPS Act. The order was communicated months later, referred to the Advisory Board (which confirmed it on 6 March 2025), and challenged by the petitioner by way of habeas corpus. |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | All subordinate courts under the Calcutta High Court |
| Persuasive For | Other High Courts; Supreme Court of India |
| Overrules | Advisory Board opinion dated 6 March 2025 confirming the preventive detention order |
| Follows |
|
What’s New / What Lawyers Should Note
- Preventive detention under the PIT-NDPS Act cannot stand when the detenu has been granted bail in corresponding NDPS prosecutions under Section 37 of the NDPS Act.
- Subjective satisfaction for detention must rest on contemporaneous, high-probative-value material showing real risk, not mere apprehension of repeated offences.
- Unexplained delay between passing and execution of the detention order breaks the live and proximate link required for preventive detention.
- Bail orders under the ordinary criminal law cannot be overridden by resorting to preventive detention for the same alleged offences.
- The decision reinforces that preventive detention is an extraordinary intrusion on Article 21 liberties and must satisfy the strict safeguards of Article 22 and statutory requirements.
Summary of Legal Reasoning
- Preventive detention is an exception to Article 21 and must meet strict syntax of Article 22 and the PIT-NDPS Act.
- The detaining authority’s subjective satisfaction was based solely on the apprehension of future crimes, despite bail granted on identical charges, contrary to (2021) 9 SCC 415.
- Delay of nearly five months between passing and execution of the detention order severed the proximate link necessary for preventive action (Sushanta Kumar Banik).
- The detaining authority failed to record contemporaneous reasons with high-order evidence; mere label of “habitual offender” is insufficient.
- Ordinary remedies under the NDPS Act (bail conditions, cancellation proceedings) are adequate; extraordinary preventive detention cannot substitute them (Ameena Begum).
- The Advisory Board’s confirmation is a bare mechanical adoption of the detaining authority’s order and was set aside in judicial review.
Arguments by the Parties
Petitioner
- Not informed of detention order until months after issuance.
- Detaining authority exceeded jurisdiction by adjudicating guilt rather than recording subjective satisfaction.
- No concrete finding that continued liberty would threaten public order.
- Bail grants in all three cases negate any real threat or need for detention.
Respondent (Union of India / NCB)
- Writ petition not maintainable as detention order lapsed with Advisory Board opinion.
- Advisory Board’s confirmation unchallenged outside original petition.
- Petitioner is a kingpin in local narcotics syndicates, proven by her own statements.
- Prior bail releases saw abscondence risk; preventive detention necessary to disrupt her network.
- Judicial review cannot re-weigh subjective satisfaction unless mala fide or procedural breach is shown.
Factual Background
The petitioner was arrested in three separate narcotics cases: possession of 1.01 kg heroin, constructive possession of 30 kg ganja, and 7 kg ganja. She obtained bail in each case. On 5 September 2024, a preventive detention order was passed under the PIT-NDPS Act, communicated months later and executed on 18 January 2025. An Advisory Board of Jharkhand confirmed the order on 6 March 2025. The petitioner filed a writ of habeas corpus challenging the legality of the detention order, and the High Court set it aside and ordered her release.
Statutory Analysis
- PIT-NDPS Act, 1988, Section 3: preventive detention of persons involved in illicit trafficking.
- NDPS Act, 1985, Section 37: bail conditions for offences involving narcotics, requiring strict compliance.
- Constitution of India, Article 21: protection of life and personal liberty; Article 22: safeguards against preventive detention including requirement of grounds and timely communication.
- Judicial standards (Ameena Begum, Sushanta Kumar Banik, (2021) 9 SCC 415) demand contemporaneous objective material and a proximate link between grounds and detention.
Alert Indicators
- ✔ Precedent Followed – Affirms established Supreme Court principles on preventive detention.
Citations
- Sushanta Kumar Banik v. State of Tripura, 2022 SCC OnLine SC 1333
- (2021) 9 SCC 415
- Ameena Begum v. State of Telangana, 2023 SCC OnLine SC 1106