Preventive Detention Becomes Unconstitutional When Used To Incarcerate For Past Offences Despite Grant Of Bail: Calcutta High Court

The Calcutta High Court has held that an order of preventive detention becomes unconstitutional when it is weaponised to punish for earlier crimes, and continue custody of an accused even after bail had been granted by the courts.

A division bench of Justices Tapabrata Chakraborty and Reetobroto Kumar Mitra held:

"The legal distinction between preventive and punitive detention is well established. The former aims to forestall future prejudicial acts, the latter to punish past ones. Yet from the point of the detenu, the practical reality is the same: loss of liberty, separation from family, and confinement behind prison walls. Indeed, preventive detention, imposed without trial, can be more intrusive to personal liberty than punitive detention. This is why the Constitution and the statute subjects such orders to strict safeguards, and why the Supreme Court has cautioned that preventive detention must not be used as a convenient substitute for punishment under the ordinary criminal process. Where the real object is to incarcerate for past offences, or to continue custody despite a court granting bail, the order loses its preventive character and becomes unconstitutional."

These observations came in a writ of habeas corpus seeking the setting aside, cancelling, withdrawing and/or quashing of the detention order dated 5th September, 2024, passed by the Authority, under the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act of 1988 (PIT-NDPS) to prevent the petitioner's participation in any further illicit activity and in public interest.

The petitioner had been arrested on account of three cases for the trafficking of heroin and ganja. The petitioner had been granted bail in all three matters by the Courts of competent jurisdiction, including an order by the High Court at Calcutta.

Court noted that the petitioner was arrested on three separate occasions for three separate cases. The first of such cases was regarding 1.01kg of heroin, the second for being in constructive possession of 30 kg of ganja along with her associates. The third was in respect of 7 kg of ganja seized from her residence.

The court said “constructive possession” since a co-ordinate bench of this Court had held that ganja was recovered from her co-accused and she was arrested on the basis of the statement of the co-accused. The money recovered also could not be traced to the alleged transaction.

Thus, the petitioner on all three occasions was granted bail by the Courts of competent jurisdiction, including the High Court at Calcutta, leading to her challenge against the order of the detaining authority and Advisory Board, which kept her in custody on the following grounds.

I. That the petitioner is a habitual offender.

II. The petitioner has been involved in trafficking of narcotic drugs and psychotropic substances.

III. The petitioner has a propensity to be involved in prejudicial activity in future.

IV. The petitioner is a threat to innocent persons of the locality and her activities are prejudicial to the society.

Court noted that the order of the detaining authority was passed on the basis of allegation of offences committed by the detenu prior to the order of bail granted by the High Court and there is a clear break in the live and proximate link, warranting an order of preventive detention.

It was further held that there is no change in circumstance since 2020 (being the date of arrest for the commission of the first alleged offence) till 2024 (being the date of commission of the last alleged offence) and till 18th January, 2025 (date of arrest of the petitioner). Thus, preventive detention cannot be exercised as a punitive step, which the detaining authority has sought to do in this matter.

Accordingly, the court directed the release of the petitioner from custody.

Case: JAHANARA BIBI @ JAHANARA BEGAM @ JAHANARA MONDAL @ JANU - VERSUS – UNION OF INDIA & OTHERS

Case No: W. P. A. (H) NO. 22 OF 2025

Click here to read order