Preventive detention is an exceptional power that must be exercised sparingly: Orissa High Court

Sk.Mabud @ Mamud @ Madud

……. Petitioner

-Versus-

State of Odisha & another

……. Opp. Parties

Case Number: W.P.(CRL.) NO.82 OF 2020

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Facts:

  • The petitioner Sk. Mabud was under judicial custody in District Jail Balasore in connection with PS Case No.319/2019 u/s 395 IPC and 25/27 Arms Act.
  • Superintendent of Police, Balasore in his letter to District Magistrate appealed for petitioner’s detention under NSA Act citing his involvement in 20 criminal cases since 2013.
  • District Magistrate ordered petitioner’s detention on 12.02.2020 and provided grounds of detention on 16.02.2020.
  • The detention order was approved by the State Government and confirmed by the Advisory Board. It was further extended twice.

Court’s Opinions:

  • Preventive detention is to prevent someone from doing something, not to punish for what has already been done.
  • The detaining authority should have disclosed material indicating likelihood of breach of public order. Relying simply on criminal cases without such material is not enough.
  • There should be a live link and nexus between the detention order and the alleged offences.
  • The detaining authority failed to show that the petitioner’s activities posed a threat to public order.
  • The detention order appears to have been passed without due application of mind. The authority relied simply on a list of cases provided by the Superintendent of Police.
  • The detention order violates the safeguards and requirements laid down by the Supreme Court for preventive detention.

Petitioner’s Arguments:

  • The detaining authority did not disclose the basic facts and materials that led it to conclude that the petitioner is a threat to public order.
  • The detention order was passed on 12.02.2020 but grounds provided only on 16.02.2020, indicating non-application of mind.
  • The authority relied on stale and acquitted cases. The cases affect individuals, not public order.
  • Petitioner was not given proper materials to make a representation against the detention.

State’s Arguments:

  • The detention order was passed after due consideration and application of mind.
  • Petitioner’s release on bail could lead to resumption of criminal activities prejudicial to public order.
  • The grounds of detention were provided within the statutory period of 5-15 days.
  • Petitioner’s activities have disrupted public order and peace in the locality.

Referred Laws:

  • Article 22(2) of the Constitution
  • Sections 3(2) and 3(4) of the National Security Act, 1980
  • Relevant Supreme Court judgments on preventive detention

Conclusion:

The High Court allowed the petition and quashed the detention order, holding it to be illegal, improper and without application of mind.