Preventive detention not punitive, should abide by procedures, says HC

While passing orders on an habeas corpus petition (HCP) moved by a detenu’s kin, a division bench comprising Justice MM Sundresh and Justice D Krishnakumar said, “Preventive detention is preventive and not punitive. When ordinary law of the land is sufficient, taking recourse to the preventive detention law is illegal.” In one of the cases wherein one Vimal (24) was detained by the Chengalpattu Collector, the petitioner’s counsel contended that while the arrest memo claimed that the family members were intimated of the arrest, there was no material to substantiate it.

When the prosecutor submitted that the intimation was sent to the family through SMS, the bench observed that there were neither material particulars to substantiate it nor that it was sent through post or registered post as per the procedure laid down.

“Therefore, non-furnishing of details to the detenu’s relatives would amount to deprivation of the detenu’s right to make an effective representation and the same would vitiate the order of detention and unsustainable in the eye of law,” the bench held while quashing his detention under Goondas Act.

In another similar HCP moved by one Sangeetha seeking to release her husband Rajkumar detained under Goondas Act for a prohibition offence on violation of procedural safeguards, the bench quashed the detention after finding that there was an inordinate and unexplained delay of six days by the detaining authority in submitting the remarks and another 10 delay by the Minister for Prohibition and Excise Department in considering the detenu’s representation.

Quashing detention orders in more than 10 such cases, the bench cited the Supreme Court order that held that procedural safeguards should be zealously watched and enforced by the courts of law and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities of the detenu.

It also cited another Supreme Court order that held that inordinate and unexplained delay on the part of the government in considering the representation would render the detention illegal.