1. Preventive detention under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, while the individuals were already in judicial custody. (Para 1 , 3 , 4 , 6 )
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2025 Supreme(SC) 454
SUPREME COURT OF INDIA
SANJAY KUMAR, AUGUSTINE GEORGE MASIH, JJ.
Mortuza Hussain Choudhary – Appellant
Versus
The State of Nagaland and Others – Respondents
Criminal Appeal Nos. 4872-4873 of 2024
Decided On : 05-03-2025
Important Points
IMPORTANT POINTS
Preventive detention – Preventive detention deprives a person of his/her individual liberties by detaining him/her for a length of time without being tried and convicted of a criminal offence and prescribed safeguards must be strictly observed to ensure due compliance with constitutional and statutory norms and requirements.
Preventive detention – Preventive detention deprives a person of his/her individual liberties by detaining him/her for a length of time without being tried and convicted of a criminal offence and prescribed safeguards must be strictly observed to ensure due compliance with constitutional and statutory norms and requirements.
Subject
Criminal Law - Preventive Detention
Act Referred
Headnote
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 – Sections 3(1) and 11 – Constitution of India – Article 22(5) – Preventive detention – As preventive detention deprives a person of his/her individual liberties by detaining him/her for a length of time without being tried and convicted of a criminal offence, prescribed safeguards must be strictly observed to ensure due compliance with constitutional and statutory norms and requirements – Order of detention must be accompanied by ‘grounds of detention’ made by detaining authority itself – Authorities concerned paid mere lip service to mandatory requirements and mechanically went through motions while dealing with cases of these two individuals – Satisfaction of detaining authority necessarily has to be spelt out after application of mind by way of separate grounds of detention made by detaining authority itself and cannot be by inference from a casual reference to material placed before such detaining authority or a bald recital to the effect that detaining authority was ‘satisfied on examination of the proposals and supporting documents’ that detention of individuals concerned was necessary – Detention orders quashed. (Paras 2, 7, 12, 16 and 17)
Facts of the case:
Ashraf Hussain Choudhary and his wife, Adaliu Chawang, were subjected to preventive detention under Section 3(1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.
Findings of Court:
Detention orders dated 30.05.2024 passed by Special Secretary, Home Department, Government of Nagaland, confirmed and continued thereafter by way of extension orders, shall stand quashed. Detenus, Ashraf Hussain Choudhary and Adaliu Chawang, shall be set at liberty forthwith, unless their continued incarceration is warranted in connection with any other case. Challenge thereto by brother of Ashraf Hussain Choudhary, by way of WP (Crl.) Nos. 10 and 11 of 2024 came to naught when Gauhati High Court dismissed both writ petitions.
Result : Appeals allowed.
Legal Category Hierarchy
Advocates appeared:
For the Appellant(s) : Mr. Pranjal Kishore, AOR Ms. Madiya Mushtaq, Adv.
For the Respondent(s): Mr. K N Balgopal,Sr. Adv. Ms. K. Enatoli Sema, AOR Ms. Limayinla Jamir, Adv. Mr. Amit Kumar Singh, Adv. Ms. Chubalemla Chang, Adv. Mr. Prang Newmai, Adv. Mr. Vitso Rio, Adv. Ms. Nitya Nambiar, Adv. Mr. K.M. Nataraj, ASG Mr. Sharath Narayan Nambiar, Adv. Ms. Indira Bhakar, Adv. Mr. Vinayak Sharma, Adv. Mr. Vatsal Joshi, Adv. Mr. Anuj Srinivas Udupa, Adv. Mr. Chitransh Sharma, Adv. Ms. Satvika Thakur, Adv. Ms. Yogya Rajpurohit, Adv. Mr. Aayush Saklani, Adv. Mr. Tanmay Mehta, Adv. Ms. Nikita Capoor, Adv. Mr. Gurmeet Singh Makker, AOR
For the Appellant(s) : Mr. Pranjal Kishore, AOR Ms. Madiya Mushtaq, Adv.
For the Respondent(s): Mr. K N Balgopal,Sr. Adv. Ms. K. Enatoli Sema, AOR Ms. Limayinla Jamir, Adv. Mr. Amit Kumar Singh, Adv. Ms. Chubalemla Chang, Adv. Mr. Prang Newmai, Adv. Mr. Vitso Rio, Adv. Ms. Nitya Nambiar, Adv. Mr. K.M. Nataraj, ASG Mr. Sharath Narayan Nambiar, Adv. Ms. Indira Bhakar, Adv. Mr. Vinayak Sharma, Adv. Mr. Vatsal Joshi, Adv. Mr. Anuj Srinivas Udupa, Adv. Mr. Chitransh Sharma, Adv. Ms. Satvika Thakur, Adv. Ms. Yogya Rajpurohit, Adv. Mr. Aayush Saklani, Adv. Mr. Tanmay Mehta, Adv. Ms. Nikita Capoor, Adv. Mr. Gurmeet Singh Makker, AOR
Table of Contents
2. Challenge to detention orders on grounds of language barriers, lack of application of mind regarding bail likelihood, and mechanical issuance of orders violating Article 21. (Para 4 )
3. Detention orders passed against persons in custody without cogent material regarding bail likelihood, inadequate communication of grounds in an understood language, and lack of independent satisfaction. (Para 12 , 13 , 14 , 15 , 16 )
4. Preventive detention of persons in jail requires cogent material showing likelihood of bail release and prejudicial activity, and grounds must be communicated in a language understood by the detenu. (Para 8 , 9 , 10 , 11 )
5. Appeals allowed; High Court judgment set aside; detention orders quashed; detenus ordered to be set at liberty. (Para 17 )
6. What are the requirements for validly passing a preventive detention order against a person already in judicial custody?
The detaining authority must be aware of the custody and possess cogent material showing a real possibility of the person being released on bail and a likelihood that they would engage in prejudicial activities upon such release. (Para 8 , 9 , 10 , 13 )
7. How must grounds of preventive detention be communicated to satisfy the requirements of Article 22(5) of the Constitution?
Grounds must be communicated in a language the detenu understands and, if literate, in a script they can read. Mere oral translation or explanation by police is insufficient to enable an effective representation. (Para 11 , 14 , 15 )
8. Is a detaining authority's general satisfaction based on proposals sufficient to justify a detention order?
No. The authority must apply its mind and spell out separate grounds of detention. A bald recital of satisfaction based on proposals without independent application of mind is insufficient under the statutory scheme. (Para 16 )
JUDGMENT :
SANJAY KUMAR, J.
1. Ashraf Hussain Choudhary and his wife, Adaliu Chawang, were subjected to preventive detention under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for brevity ‘the Act of 1988’) vide separate orders dated 30.05.2024 passed by the Special Secretary, Home Department, Government of Nagaland. Challenge thereto by Mortuza Hussain Choudhary, the brother of Ashraf Hussain Choudhary, by way of WP (Crl.) Nos. 10 and 11 of 2024 came to naught when the Gauhati High Court dismissed both the writ petitions on 29.08.2024. Hence, these appeals.
2. Preventive detention is a draconian measure whereby a person who has not been tried and convicted under a penal law can be detained and confined for a determinate period of time so as to curtail that person’s anticipated criminal activities. This extreme mechanism is, however, sanctioned by Article 22(3)(b) of the Constitution of India. Significantly, Article 22 also provides stringent norms to be adhered to while effecting preventive detention. Further, Article 22 speaks of the Parliament making law prescribing the conditions and modalities relating to preventive detention. The Act of 1988 is one such law which was promulgated by the Parliament authorizing preventive detention so as to curb illicit trafficking of narcotic drugs and psychotropic substances. Needless to state, as preventive detention deprives a person of his/her individual liberties by detaining him/her for a length of time without being tried and convicted of a criminal offence, the prescribed safeguards must be strictly observed to ensure due compliance with constitutional and statutory norms and requirements.
3. We may briefly note the admitted facts in the cases on hand: Three individuals, viz. Nehkhoi Guite (the driver of the vehicle) and two ladies, Hoinu @ Vahboi and Chinneilhing Haokip @ Neopi, were apprehended by the police on the night of 05.04.2024 in Khuzama village area while travelling in a Mahindra TUV Vehicle. Upon search of the vehicle, 20 soap cases of Heroin were found concealed in the gear lever cover. The seized Heroin weighed 239 grams. Thereupon, Suo Motu FIR No. 005/2024 was registered on 06.04.2024 on the file of the Narcotics PS under Sections 22(b) and 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Upon interrogation, Chinneilhing Haokip @ Neopi implicated Adaliu Chawang and stated that she had supplied Heroin earlier also to Adaliu Chawang and received money. Ashraf Hussain Choudhary and Adaliu Chawang were arrested at Dimapur on 12.04.2024 and were remanded to custody.
4. While so, the Investigating Officer of the case submitted proposals for the preventive detention of Ashraf Hussain Choudhary and Adaliu Chawang. These proposals were forwarded to the Special Secretary, Home Department, Government of Nagaland, by the Additional Director General of Police (Administration), Nagaland, under letters dated 14.05.2024 and 17.05.2024. Acting thereupon, the Special Secretary, Home Department, Government of Nagaland, issued separate orders dated 30.05.2024, in exercise of power under Section 3(1) of the Act of 1988, directing that Ashraf Hussain Choudhary and Adaliu Chawang be detained and kept in the District Jail, Dimapur, for an initial period of 3 months. Both the detenus submitted individual representations dated 12.06.2024 seeking revocation of their detention. Therein, both of them asserted that they had been served copies of the detention orders in a language they were not familiar with and that no copy of the detention order was served to them in a language that they understood. They also pointed out that they were already in custody after their arrest on 12.04.2024 and that there was no mention in the orders that their detention was required under the Act of 1988 as they were likely to be released on bail. They contended that the detention orders were passed mechanically and without application of mind
