Preventive Detention Power Must Be Exercised With Extreme Care; Casual Approach May Deprive Citizen Of Most Precious Fundamental Right: Bombay HC

The Bombay High Court remarked that the power of prevention detention must be exercised with extreme care and any casual approach may deprive a citizen of his most precious fundamental right.

The Court remarked thus in a criminal writ petition filed by the detenu through his brother, seeking a writ of habeas corpus or any other appropriate writ for quashing and setting aside the preventive detention order.

A Division Bench of Justice Bharati Dangre and Justice Manjusha Deshpande said, “It is a settled position of law that if a statutory enactment confers an extraordinary power on the executive, to detain a person without recourse to the ordinary laws of land and by surpassing the stage of trial, exercise of such power places the personal liberty of such a person in extreme peril, as he has very limited right to raise a challenge to such an order and, therefore, it is necessary that such a law has to be strictly construed and the power to be exercised with extreme care, scrupulously within the bounds laid down by the statute. … Any casual approach may deprive a citizen of his most precious fundamental right, his freedom and liberty”

The Bench added that the exercise of the power to detain a person preventively shall be balanced against the injustice to a person, who is detained, and hence, the necessary safeguards contemplated under Article 22 must therefore be ensured to a detenu, one of which include a right to make representation.

Advocate A.M.Z. Ansari appeared for the petitioner while APP J.P. Yagnik and Advocate Sandesh Patil appeared for the respondents.

In this case, the petitioner’s brother (detenu) was detained by the Joint Secretary to the Government of India (detaining authority) under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) in October 2023. The Detaining Authority directed the detention of the detenu since it was satisfied that it was necessary to detain him, with a view to prevent him from smuggling of goods, abetting the smuggling, and engaging in transporting or concealing or keeping the smuggled goods in future.

Pursuant to the order of detention being passed, the detenu was communicated the grounds for detention, which comprised of the report forwarded by the Sponsoring Authority i.e. the Directorate of Revenue Intelligence, Mumbai Zonal Unit. By referring to the material, the Detaining Authority arrived at the conclusion that the detenu was a habitual offender and the material put forth by DRI, including seizure made and the confessional and corroborative statement, brought about sufficient material about his role as a key player in and being an organiser of smuggling of Areca nuts from Dubai in India. In a systematic manner, he was co-ordinating and arranging in conjunction with an overseas entity.

The High Court after hearing the contentions of the counsel observed, “It is trite position of law the subjective satisfaction reached by the detaining authority must be based upon the material placed before him and burden is cast upon the authority to pass an order, after taking into consideration the relevant material, which is also furnished to the detenu. It is incumbent upon the authority passing an order to act in a responsible manner, as it has an effect of depriving a person of his liberty, the most cherished value and, therefore, he is expected to act with care and caution and see that the detention of the person is in the larger interest, and strictly for the purpose, which the detention law aim to achieve.”

The Court said that the authority is expected to act with a sense of responsibility necessarily, when a citizen is deprived of his liberty, by short-circuiting the process of trial by applying its mind to the material placed before him and exercising the power conferred upon him, by keeping in mind the safeguards available to the detenu under Article 22 of the Constitution.

“For making effective representation, it is necessary that the detenu is able to understand the grounds on which he has been detained and it is imperative for the detaining authority to communicate him such grounds”, it also noted.

Furthermore, the Court elucidated that if statute permits detention on the specific grounds and as under the COFEPOSA Act, to prevent a detenu from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from smuggling goods, or abetting the smuggling of goods, or engaging in transporting or concealing or keeping smuggled goods etc., all the acts being separated and distinct must receive its connotation and the detenu must be tested against the prevented acts, as specified in the COFEPOSA Act.

“Upon being satisfied that a person is either engaged in transporting or concealing or keeping the smuggled goods in future, each act described therein indicative of a distinct activity and it is not clear to the detenu as to what act of his is attempted to be prevented by detaining him and whether it is his act of engaging in transporting or concealing or keeping the smuggled goods. … In absence of such a clarity being offered to the detenu, who had a right to prefer a representation, being aggrieved thereof and had a right to get a decision thereon, the detention order is vitiated by non-application of mind and, hence, it cannot be sustained”, it concluded.

Accordingly, the High Court set aside the detention order.

Cause Title- Mahesh Ramdas Jejurkar v. The Union of India & Ors. (Neutral Citation: 2024:BHC-AS:27802-DB)

Appearance:

Petitioner: Advocates A.M.Z. Ansari and Nasreen Ayushi.

Respondents: APP J.P. Yagnik, Advocates Sandesh Patil, Chintan Shah, Krishnakant Deshmukh, Shubhankar Kulkarni, Anusha Amin, Advait M. Sethna, Poushali Roychoudhary, and Raju R. Thakker.

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