JAHANARA BIBI @ JAHANARA BEGAM @ JAHANARA MONDAL @ JANU V. UNION OF INDIA & OTHERS W. P. A. (H) NO. 22 OF 2025:

DATE: 25/08/2025

COURT: High Court of Culcutta

BENCH: Justice Tapabrata Chakraborty and Justice Reetobroto Kumar Mitra

FACTS:

The petitioner was implicated in three separate criminal cases registered under the NDPS Act, where she was accused of being in possession of contraband substances, namely heroin and ganja. In the first case (FIR No. 3 of 2020, City Sessions Court, Calcutta), she was arrested for possession of 1.01 kg of heroin and was granted bail on 11 December 2020. In the second case (NCB Case No. 19 of 2023), she was allegedly found in possession of 30 kg of ganja, which exceeded the 20 kg ceiling and was therefore treated as commercial quantity; she was granted bail on 9 May 2024. In the third case (NDPS Case No. 4 of 2024 corresponding to NCB Case No. 2 of 2024), relating to the seizure of 7 kg of ganja, bail was granted by the Additional Sessions Judge, Alipore, on 5 March 2024. Thus, in all three cases, the petitioner had already been enlarged on bail by the competent courts, including the High Court of Calcutta.

Notwithstanding the grant of bail, on 5 September 2024 the Detaining Authority (Joint Secretary, Government of India) passed a preventive detention order under the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act, 1988 (PIT-NDPS Act), branding the petitioner as a habitual offender whose activities were prejudicial to public interest. This detention order was communicated to her only in December 2024, and although she was first refused admission at the Jharkhand prison on 16 December 2024, she was eventually lodged there on 18 January 2025. Her son as well as she herself submitted multiple representations seeking cancellation of the detention order, all of which were rejected. Meanwhile, the NCB moved for cancellation of her bail, but the Calcutta High Court declined the request on 6 March 2025. The petitioner thereafter approached the Court through a writ of habeas corpus, assailing the detention order on various grounds including delay in communication, lack of subjective satisfaction, and the absence of any material to suggest that her liberty on bail posed a threat to public order.

ISSUES:

The central issues before the Court were whether the preventive detention order dated 5th September 2024, passed under the PIT-NDPS Act, 1988, was valid and sustainable in law. Specifically, the Court had to consider: (i) whether the detention order could be justified despite the petitioner already being granted bail in all pending NDPS cases, (ii) whether the delay of nearly five months in executing the detention order broke the live and proximate link between the alleged activities and the need for detention, and (iii) whether the detaining authority’s reliance on apprehension of repetition of offences, rather than genuine preventive grounds, amounted to misuse of preventive detention.

JUDGEMENT WITH REASONING:

The Court allowed the Writ Petition and set aside the detention order dated 5th September 2024, holding it unsustainable. It directed that the petitioner be released forthwith, disagreeing with the Advisory Board’s opinion and emphasizing that preventive detention in this case violated constitutional safeguards under Articles 21 and 22.

The Court held that the detaining authority’s conclusion branding the petitioner a “habitual offender” was flawed, as it was primarily based on pending cases in which the petitioner had already been granted bail and no conviction had been recorded. Reliance on past allegations, without any fresh or contemporaneous material demonstrating a real and imminent likelihood of future prejudicial acts, could not justify preventive detention. The order thus appeared to rest on a mere apprehension of possible repetition of crime, which the Supreme Court has consistently held to be insufficient for preventive detention, as seen in Ameena Begum v. State of Telangana (2023) and Sushanta Kumar Banik v. State of Tripura (2022). Preventive detention, the Court emphasized, cannot be invoked as a punitive measure for past conduct or as a substitute for bail cancellation.

The Court further reasoned that the delay in executing the detention order seriously undermined its validity. Although the order was issued in September 2024, it was executed only in January 2025, with no explanation for the gap. This lapse, in the Court’s view, snapped the “live and proximate link” between the alleged activities and the need for preventive detention, thereby vitiating the order. It reiterated that preventive detention is an extraordinary measure that restricts the right to personal liberty under Article 21 of the Constitution, and therefore requires strict adherence to both procedural and substantive safeguards. Since the petitioner had already faced scrutiny under Section 37 of the NDPS Act and secured bail from competent courts, the State could not resort to preventive detention as a backdoor method to continue custody. The Court underscored that such extraordinary power must be exercised sparingly and with utmost caution, not mechanically or as a tool to override judicial orders granting bail.

ANALYSIS:

The case highlights the judiciary’s insistence that preventive detention under the PIT-NDPS Act must not be misused as a punitive tool to override bail orders. The Supreme Court observed that the detaining authority’s reasoning was legally unsustainable because it merely relied on the pendency of multiple NDPS cases against the petitioner, all of which had already resulted in bail. The absence of any fresh or proximate material showing a genuine threat to public order meant that the detention order was based only on an apprehension of possible future offences. This, the Court reiterated, is contrary to settled principles that preventive detention cannot rest on conjecture or on a person’s past conduct alone. In doing so, the Court reaffirmed the line of precedent set in Ameena Begum v. State of Telangana (2023) and Sushanta Kumar Banik v. State of Tripura (2022), which stress that preventive detention should not become a substitute for punitive measures like bail cancellation.

Equally important was the Court’s finding that the unexplained delay of nearly five months in executing the detention order undermined its validity. Preventive detention, being an extraordinary departure from the right to personal liberty guaranteed under Article 21, requires that the link between the alleged prejudicial acts and the necessity of detention remain live and proximate. The gap between the order and its execution snapped this link, rendering the detention arbitrary. By striking down the order, the Court sent a strong message that the executive cannot rely on stale grounds or procedural lapses to justify curtailing liberty. The judgment thus strengthens constitutional safeguards under Articles 21 and 22, while also cautioning authorities against invoking preventive detention as a convenient device to neutralize judicial bail orders.