"Preventive Detention Is Not A Punishment & Habeas Corpus Petition Is A High Prerogative Writ"- Madras HC Observes In NDPS Case

A Madras High Court Bench of Justice M Sundar and Justice N Anand Venkatesh has allowed a habeas corpus petition while observing that "no bail application has been filed by the detenu and Section 167(2) Cr.PC would not have come to the aid of the detenu even if he had filed a bail petition and hence, the impugned detention order suffers from non-application of mind".

The Court has also stressed that "preventive detention is not a punishment and HCP is a high prerogative writ".

Counsel W Camyles Gandhi appeared for the petitioner while APP R Muniyapparaj, assisted by Counsel N Narkeeran appeared for the respondents.

In this case, a habeas corpus petition was filed by the son of the detenu, assailing a preventive detention order. The detention order had been made under The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Cyber law offenders, Drug-offenders, Forest-offenders, Goondas, Immoral traffic offenders, Sand-offenders, Sexual-offenders, Slum-grabbers and Video Pirates Act, 1982.

The premise formed was that the detenu was a Drug Offender, within the meaning of Section 2(e) of the Act, and had committed offences under Sections 8(c) read with 20(b)(ii)(C) and 29(1) of 'the Narcotic Drugs and Psychotropic Substances Act, 1985.

The main ground canvassed was that the Detaining Authority was aware of the fact that no bail application was filed by the detenu till the impugned detention order was passed, and in spite of the same, the Detaining Authority came to the conclusion that there is a likelihood of the detenu being let out on bail by relying upon an order passed in 2018 in a different case. 

The petitioner submitted that the order did not pertain to a similar case and hence, the impugned detention order suffered from the non-application of mind.

In light of the same, the Court noted that "The Detaining Authority was aware of the fact that no bail application was filed by the detenu or on behalf of detenu. In spite of the same, the Detaining Authority by relying upon the order dated 03.09.2018 passed in C.M.P.No.643 of 2018 came to the conclusion that there is imminent possibility of detenu being enlarged on bail". 

Perusing the bail order that was relied upon, the Court observed that "This order cannot be considered as a similar case since in the present case, no bail application has been filed by the detenu and Section 167(2) Cr.PC would not have come to the aid of the detenu even if he had filed a bail petition and hence, the impugned detention order suffers from non-application of mind".

In light of the same, the Court held that "In view of the fact that the final report has been filed on time, if any bail application is filed by the detenu, the same shall be considered by the trial Court on its own merits and in accordance with law". 

Noting that preventive detention is not a punishment, the petition was allowed and it was directed that the detenu was set at liberty.

Cause Title: Vignesh vs The Secretary to the Government & Ors.

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