Calcutta High Court: The present petition was filed seeking a writ of habeas corpus to set aside the detention order passed by the Detaining Authority under the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act, 1988 (‘PIT-NDPS Act’). The petitioner was directed to be detained in Loknayak Jayaprakash Narayan Central Jail, Hazaribagh, Jharkhand, having been found to be a habitual offender and a threat to society. The Division Bench of Tapabrata Chakraborty and Reetobroto Kumar Mitra*, JJ., while allowing the petition held that preventive detention, imposed without trial, could be more intrusive to personal liberty than punitive detention. The Court observed that where the real objective of such detention is to incarcerate an individual for past offences, or to continue custody despite a court having granted bail, the detention order loses its preventive character and becomes unconstitutional.
The Bench further noted that a mere assertionthat the petitioner’s enlargement into civil society might give rise to threat and harm to the society at large was wholly insufficient and inadequate to suspend her personal liberties.
Background:
The petitioner was arrested in three separate cases, one involving 1.01 kg of heroin, another involving 30 kg of ganja, and a third involving 7 kg of ganja. Bail was granted in all three matters by Courts of competent jurisdiction, including the HighCourt. The detention order dated 05-09-2024 was communicated in December 2024. On 16-12-2024, the petitioner was taken to the prison in Jharkhand but refused admission. She was eventually lodged there on 18-01-2025.
Representations against the detention were made on 22-01-2025 by the petitioner’s son and on 10-02-2025 by the petitioner herself. These were rejected on 19-02-2025, 29-4-2025, and 14-05-2025. A reference was made to the Advisory Board, which upheld the detention order on 06-03-2025. Meanwhile, the Narcotics Control Bureau’s (‘NCB’) application to cancel bail was rejected by Court on the same date. A petition was filed in February 2025, and a supplementary affidavit placed on record the rejection orders and the Advisory Board’s opinion.
It was alleged that for a period of four and a half months from September 2024 to December 2024 the petitioner had not been informed of the order of detention. The detaining authority went beyond its jurisdiction in determining that the petitioner was involved in the crimes complained of and committed a jurisdictional error in passing the order dated 5-10-2024. It did not record any subjective satisfaction, which was the sine qua non as stipulated, before finding that detention was essential to prevent further acts prejudicial to society. The petitioner had obtained bail in all three matters and complied with bail conditions, and no reason was shown to justify detaining her in a Jail far from her residence. There was no finding that her presence would result in breach of public order.
The respondent argued that the petition was not maintainable as the Advisory Board’s opinion dated 06-03-2025 had not been challenged, and a fresh petition was required. The petitioner was described as a kingpin of the narcotic trade, who admitted to coordinating drug operations over phone and aides. Her case was considered and rejected multiple times, and it was claimed she could run the syndicate from jail in her locale. The Court’s role in judicial review was limited unless mala fide or procedural violations were shown, which the petitioner had not raised.
Analysis and Decision:
The Court emphasised that preventive detention is an anathema to personal liberty and equal credence must be given to the liberties proposed to be suspended. It was observed that remedies under the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’) were adequate and did not warrant invocation of Section 3 of PIT-NDPS to evade personal liberty. The Court highlighted that the only apprehension of the detaining authority was that the detenu might reoffend, but mere apprehension of repetition of a crime was not a ground for preventive detention.
The Court observed that the petitioner went through the rigours of Section 37 of the NDPS Act and was granted bail on three occasions. For the third alleged crime, possession of 7 kg of Ganja, the application for cancellation of bail was rejected by a bench of this Court. Thus, the rigours of Section 37 of the NDPS Act had been considered while granting bail. The Court further noted that authorities cannot override the grant of bail and detain her on the same grounds.
The Court emphasised that it was a well settled proposition, through years of judicial pronouncements as late as in 2025 by the Supreme Court of India that preventive detention was an extraordinary power in the hands of the State which must be used sparingly as it curtails the liberty of an individual in order to prevent an anticipated commission of an offence which could disrupt public order. The Court further noted that preventive detention was an exception to Article 21 of the Constitution and therefore must be applied only in rare cases.
The Court remarked that preventive detention was an extraordinary power to be used sparingly, as it curtailed individual liberty to prevent anticipated offences disrupting public order. It was further noted that preventive detention was an exception to Article 21 of the Constitution and must be applied only in rare cases. The Court highlighted that detention based on allegation prior to conviction was an invasion of personal liberty and must strictly adhere to statutory requirements and safeguards under Article 22 of the Constitution.
The Court observed that preventive detention was a “necessary evil” to be exercised only within strict confines, and the detaining authority must rely on contemporaneous and relevant material, not conjecture, and its mechanical adoption of police recommendations and vague reasoning was wholly insufficient to suspend personal liberties.
The Court emphasised that while preventive detention forestalls future acts and punitive detention punishes past ones, the detenu faced the same reality: loss of liberty, separation from family and confinement behind prison walls. Preventive detention, imposed without trial, could be more intrusive to personal liberty than punitive detention. The Court observed that preventive detention must not substitute punishment under the ordinary criminal process. If used to incarcerate for past offences or continue custody despite bail, it loses its preventive character and becomes unconstitutional.
The Court, while allowing the petition, found the detention order unsustainable, disagreed with the Advisory Board’s opinion, and directed that the detenue be released forthwith.
[Jahanara Bibi v. Union of India, 2025 SCC OnLine Cal 7003, decided on 25-08-2025]
*Judgment authored by: Justice Reetobroto Kumar Mitra
Advocates who appeared in this case:
For the Petitioner: Uday Sankar Chattopadhyay, Adv., Pronay Basak, Adv., Rajashree Tah, Adv., Trisha Rakshit, Adv., Aishwarya Datta, Adv., Sadia Parveen, Adv.
For the Respondents: Arun Kumar Maiti (Mohanty) Adv., R. R. Mohanty, Adv.
