Calcutta High Court Quashes Detention Under PIT-NDPS Act | Preventive Detention Held Unconstitutional Where Bail Already Granted in Multiple NDPS Cases
Isabella Mariam
The High Court of Calcutta Division Bench of Justice Tapabrata Chakraborty and Justice Reetobroto Kumar Mitra has allowed a writ petition challenging a preventive detention order issued under the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act, 1988. The Court directed that the detenue be set at liberty forthwith, holding that the detention order was unsustainable in law. The Bench disagreed with the Advisory Board’s confirmation of the detention and held that preventive detention could not be invoked merely because the detenue had been granted bail in criminal cases. The Court further recorded that there had been a break in the live and proximate link between the grounds of detention and its purpose due to delay in execution.
The writ petition sought a writ of habeas corpus challenging a detention order dated 5 September 2024 issued under Section 3 of the PIT-NDPS Act, directing detention in Loknayak Jayaprakash Narayan Central Jail, Hazaribagh, Jharkhand. The detenue was alleged to be a habitual offender engaged in illicit trafficking of narcotic drugs and psychotropic substances.
The detention order was premised on three criminal cases. First, FIR No. 3 of 2020 pending before the City Sessions Court, Calcutta, involving 1.01 kg of heroin, in which the detenue was granted bail on 11 December 2020. Second, NCB Case No. 19 of 2023, involving seizure of 30 kg of ganja, in which bail was granted on 9 May 2024. Third, NDPS Case No. 4 of 2024 (corresponding to NCB Case No. 2 of 2024), involving seizure of 7 kg of ganja, in which bail was granted on 5 March 2024. The detenue had been enlarged on bail by competent courts, including the High Court at Calcutta.
The detention order of 5 September 2024 was communicated to the detenue in December 2024. On 16 December 2024, the detenue was taken to the prison in Jharkhand but initially refused admission. Subsequently, on 18 January 2025, the detenue was lodged in the jail. The detenue’s son submitted a representation on 22 January 2025 seeking cancellation of the detention, which was rejected on 19 February 2025. The detenue filed another representation on 10 February 2025, which was rejected on 29 April 2025 and again on 14 May 2025, even while the writ petition remained pending.
The detenue also made a representation before the Advisory Board, Jharkhand, which, by order dated 6 March 2025, opined that the detention order was valid. Meanwhile, the Narcotics Control Bureau, Kolkata Zonal Unit, applied for cancellation of the detenue’s bail, which the High Court at Calcutta rejected on 6 March 2025. The writ petition, filed in February 2025, was supplemented by affidavit bringing on record the rejection orders and the Advisory Board’s opinion.
The petitioner argued that the detention order was vitiated for several reasons: first, that there was delay of over four months in communicating the order to the detenue; second, that the detaining authority exceeded jurisdiction by determining guilt; third, that no proper subjective satisfaction was recorded; fourth, that the grant of bail and compliance with bail conditions negated any apprehension of threat; and fifth, that there was no finding of breach of public order. The petitioner relied on several Supreme Court and High Court decisions, including 2022 SCC OnLine SC 1333, (2021) 9 SCC 415, and 2023 SCC OnLine SC 1106.
The respondents raised objections to maintainability, contending that the writ petition could not survive after the Advisory Board’s opinion dated 6 March 2025. It was argued that the writ petition required a fresh cause of action and that supplementary affidavits could not enlarge pleadings. The respondents submitted that all documents had been furnished to the detenue, who was not a rustic woman but a kingpin of the narcotic trade, capable of managing operations even from jail. The respondents maintained that the detaining authority’s opinion was valid, based on records and repeated assessments, and that judicial review could not substitute the subjective satisfaction of the detaining authority. Reliance was placed on 1974 AIR 2154, (2003) 4 COMPLJ 333 (CAL), and Delhi High Court decision in Monu @ Sandeep v. Union of India.
The Bench noted that the detenue had been arrested in three cases and granted bail by competent courts. It recorded: “The finding of the detaining authority is more on the petitioner’s alleged crime than on its satisfaction that the petitioner needs to be detained.” The Court observed that the detaining authority had concluded that the petitioner was a habitual offender, but this conclusion was drawn prior to any conviction: “The conclusion of the detaining authority that the petitioner is a ‘habitual offender’, tends to put the cart before the horse, as the petitioner has not been held guilty in any of the crimes that she has been charged.”
The Court examined the scope of preventive detention, stating: “The Hon’ble Supreme Court in the judgment reported in (2021) 9 SCC 415 has clearly held that the apprehension of a repetition of the crime cannot be a ground for preventive detention.” It further held: “The order of the detaining authority of 5th September, 2024 has been passed on the basis of allegation of offences committed by the detenu prior to the said order being passed in respect whereof the Hon’ble Jurisdictional Courts had granted her bail.”
On the aspect of delay, the Court stated: “There is a clear break in the live and proximate link, warranting an order of preventive detention. The respondent was unable to provide the date when the sponsoring authority had proposed preventive detention of the detenu to the detaining authority, inspite of our repeated query.” The Bench reiterated that preventive detention being an anathema to personal liberty, equal credence must be given to constitutional safeguards.
The Court applied precedents such as Sushanta Kumar Banik v. State of Tripura (2022 SCC OnLine SC 1333) and Ameena Begum v. State of Telangana (2023 SCC OnLine SC 1106), observing that facts were strikingly similar. It recorded: “The mere apprehension of repetition of a crime is not a ground for preventive detention.” The Bench further stated: “The law of preventive detention as espoused through various decisions of the Hon’ble Supreme Court of India and several High Courts of this country are all ad idem on one fundamental issue, that is, preventive detention is an aberration of the right to freedom of an individual’s personal liberties.”
The Court also recorded: “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.” In conclusion, the Bench disagreed with the Advisory Board’s confirmation of the detention.
The Court held: “In view of the aforesaid facts and circumstances, we are unable to uphold the detaining order and respectfully disagree with the opinion of the Advisory Board.” The Bench allowed the writ petition and stated: “For the reasons aforestated, we allow the Writ Petition setting aside the order of preventive detention of 5th September, 2024. The detenue shall be set at liberty forthwith.”
The Bench further ordered: “With this observation and direction, we allow the writ petition. The appeal and the connected applications are disposed of without any order as to costs. An urgent photostat-certified copy of this order, if applied for, should be made available to the parties upon compliance with the requisite formalities.”
Later, after pronouncement of the judgment, a prayer for stay of operation was made by the respondents. The Court recorded: “Such prayer is considered and refused.”
Advocates Representing the Parties
For the Petitioner: Mr. Uday Sankar Chattopadhyay, Advocate; Mr. Pronay Basak, Advocate; Ms. Rajashree Tah, Advocate; Ms. Trisha Rakshit, Advocate; Ms. Aishwarya Datta, Advocate; Ms. Sadia Parveen, Advocate.
For the Respondents: Mr. Arun Kumar Maiti (Mohanty), Advocate; Mr. R. R. Mohanty, Advocate.
Case Title: Jahanara Bibi @ Jahanara Begam @ Jahanara Mondal @ Janu v. Union of India & Others
Case Number: W.P.A. (H) No. 22 of 2025
Bench: Justice Tapabrata Chakraborty, Justice Reetobroto Kumar Mitra
