Preventive detention extraordinary measure, not routine power: HC

The Punjab and Haryana High Court has ruled that preventive detention is an extraordinary measure that must be invoked in rare circumstances and justified with cogent, objective material. The court made it clear that the State has the power to detain individuals suspected of activities that threaten public order or security as a preventive measure, but the power cannot override the fundamental rights of individuals without adequate justification.

In a significant reiteration of legal principles, Justice Vinod S Bhardwaj further made it clear that preventive detention curtailed personal liberty even before an individual was formally accused of an offence. Such detention rested on suspicion, not proven guilt, and was as such required to be exercised cautiously to ensure a balance between individual freedom and societal safety.

“While acknowledging the powers conferred on the State in seeking preventive detention of a person, who is suspected of being involved in a drug trade and has a huge probability and likelihood of continued involvement in such a trade, it is also required to be kept in mind that the preventive detention is an extraordinary power and has to be exercised in rare circumstances. The persons whose liberties are being sought to be curtailed is not yet accused of commission of any offence but is being detained only on a suspicion,” he asserted.

Referring to its earlier judgment in the case of Sadha Ram, alias Bhajna Ram, versus State of Haryana, Justice Bhardwaj said subjective satisfaction of the detaining authority was not immune from judicial scrutiny. “The courts are required to show their concern and solitude in upholding and safeguarding the fundamental rights and liberties of a citizen, while being conscious that the court cannot substitute its opinion from the subjective satisfaction of the detaining authority. However, the same does not mean that the subjective satisfaction of the detaining authority is immune from judicial review,” the court observed.

He further made it clear that allegations must be supported by concrete evidence before being used as grounds for preventive detention. The observations came as the court set aside the preventive detention order issued against a person under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

The petitioner was detained for a year in 2023. The court observed that the detention was primarily based on a recovery of 2 kg of poppy husk from a co-accused, with only one instance of recovery linked to the petitioner. The judge said such allegations, without sufficient evidence, could not form an objective foundation for preventive detention.