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Legal News Article by- Raj Ubed, Government law college, Mumbai
Introduction
On 24th February important ruling has come from Hon’ble Orissa High Court on preventive detention. The Orissa High Court stated that violation of Article 22(5) of the Indian constitution is unconstitutional if it does not provide each and every specific ground based on which the judgement of detention was to be passed against the detenu. The judgement was issued against the petitioner under the preventive detention who is the accused of drugs- wedding. This judgement was passed by two judge bench of Justice Sangam Kumar Sahoo and Justice Sibo Sankar Mishra. The petitioner was detained by authorities and subjective satisfaction also basing on those five cases on petitioner not have any questions for documents in such cases to representation. The court said that the conduct of authority in debarring to make effective representation violates the constitution safeguard under Article 22(5) of the constitution of India.
Background
The petitioner was detained on 23.07.2024. in order to prevent him from engaging in Illicit Trafficking of Narcotic and Psychotropic substance under section 3(1) of the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic substance Act,1988. The petitioner is a habitual drug offender. Whose presence in society is threat to the innocent persons. The centre Government by virtue of section 9(f) of the 1988, act, confirmed the detention on 18.10.2024. directing to the detain the petitioner for a period of one year from the date of detention i.e. 31.07.2024.
The petitioner filed Criminal writ petition before the Hon’ble Orissa High Court citing that several procedure of infirmities committed by the detaining authority. Also the Zonal Director, Narcotic control Bureau filed counter affidavit and challenge the writ petition and the is repeated offender not only in NDPS but also accused in other cases under Excise act and two cases under IPC. The Advocate appeared for the petitioner side argued that the detention order is invalid for it being violation of Article 22(5) of the Constitution of India. The petitioner further claimed was enlarged on bail in the 3 NDPS cases which were named as ground for detention. As a result, if the authority has ground to believe that the petitioner was abusing his liberty after being released on bail, it might have pursued this standard criminal law remedy of asking for bail cancellation. It used the draconian clause of the 1988 act to preventive detention of the petitioner for no suitable reason.
The most important questions that arose for consideration were whether the detaining authority took into account the detainee’s involvement in only three NDPS cases, as mentioned in the grounds of detention, or whether it also considered his involvement in f ive other cases under the Excise Act and IPC, and if the latter is found to be the case, whether the partial withdrawal of grounds of detention relied on by the authority will render the detention null and void.
Legal Precedent This judgement relied upon previous legal Precedent of Supreme Court
1) Khudiram Das V. State of West Bengal (1974)
In this case constitution imperative under Article 22 were hold to be two-fold
(1) The detention authority must, as soon as practicable after the detention, communicate to the detenu and the ground on which order of detention has been made
(2) The authority must afford the detenu the earliest opportunity of making a representation against the order of detention.
2) Sana Aruna V. State of Telangana & Ans. (2017) In which court held that detention order which is found on state incidents, must be regarded an order of punishment for a crime, passed without a trial through purporting to be an order of preventive detention. Incidents which are old and in which the detenu has been granted bail.
Conclusion
In this case Hon’ble Orissa High Court demonstrate that every detaining authorities have to give fair and sufficient to petitioner effective representation. The petitioner make an effective representation against the order is compliance to the provisions of Article 22(5) of the constitution of India. The authority fully disclosed all the ground of detention to uphold the constitutional rights of individuals under the preventive detention.
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