Preventive Detention Cannot Be a Substitute for Criminal Trial, but Habitual Offenders Cannot Claim Immunity: Delhi High Court Upholds NDPS Detention

Mere Pendency of Cases Does Not Make Detention Illegal—Real Threat Perception Justifies Action - In a significant ruling Delhi High Court dismissed the plea of Monu @ Sandeep @ Rickey challenging his detention under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act). The Court upheld the government’s power to detain individuals involved in habitual drug trafficking and ruled that preventive detention is justified when the likelihood of release on bail poses a serious risk to public order.

Rejecting the contention that preventive detention should not be used when a person is already in judicial custody, the Court observed, “Preventive detention is not a parallel punishment, but when the past conduct of a person indicates a strong potential for future criminal activity, the law permits preventive action to safeguard society.”

“A Person in Custody Can Still Be a Threat—Preventive Detention Is Based on Future Risk”

The petitioner argued that he had already been in judicial custody since 2022, and that a preventive detention order was unnecessary. His counsel contended, “Preventive detention is meant to stop future crimes, not punish past conduct. The authorities must show an immediate and real apprehension of future illegal activities.”

The High Court, however, reaffirmed the settled principle that a person already in custody can still be detained under preventive laws if there exists a strong probability of release and re-engagement in criminal activities. The Court quoted from Union of India v. Ankit Ashok Jalan (2020) 16 SCC 185, stating, “The real test is whether there is a likelihood of release on bail, and whether the person, if released, is likely to engage in activities prejudicial to public order.”

Examining the facts of the case, the Court noted that the petitioner had been consistently filing bail applications, including one that was dismissed just three days before the detention order was issued. Holding that this demonstrated a real possibility of release, the Court observed, “The detaining authority was justified in its apprehension that the petitioner, upon release, would revert to illicit drug trafficking.”

“A History of Criminal Conduct Can Justify Preventive Detention—It’s Not Just About One Case”

The petitioner challenged the reliance on past cases, particularly FIR No. 111/2003, in which he had already served a six-month sentence. He argued that “stale cases cannot form the basis of preventive detention” and that past conduct alone cannot determine future risk.

Rejecting this argument, the Court noted that the petitioner had been implicated in multiple NDPS cases, including FIR No. 14/2022, which involved the alleged recovery of 500 grams of heroin from his residence. The Court held, “Preventive detention is not imposed as a penalty for past offenses but as a precautionary measure to prevent future harm. A history of repeated involvement in illicit drug trafficking indicates a pattern of conduct that cannot be ignored.”

The judgment relied on G. Reddeiah v. Govt. of A.P. (2012) 2 SCC 389, where the Supreme Court ruled, “Preventive detention is based on a reasonable prognosis of future behavior, derived from past conduct. If a person has shown a continued propensity for criminal activities, detention can be justified.”

“Delay in Passing the Detention Order—Does It Break the Link?”
The petitioner argued that the detention order was issued too late to be valid, as the case against him had been pending since 2022. He claimed that there was no immediate or proximate link between past offenses and the detention order, making it arbitrary and unjustified.

Rejecting this argument, the Court observed, “The passage of time does not automatically invalidate a detention order. What matters is whether the detaining authority has considered all material facts and formed a reasonable belief that the person poses an ongoing threat.”

Citing Haradhan Saha v. State of West Bengal (1975) 3 SCC 198, the Court reiterated, “A detention order is not a measure of punishment for past acts but a step to prevent future crimes. The delay in passing the order does not invalidate it, so long as there is a rational and live-link between past conduct and future apprehension.”

The Court found that the petitioner’s repeated bail applications, including one filed just before the detention order, kept the risk of release alive and justified the detention. It ruled, “The fear that the petitioner could be released and resume his drug trafficking activities was not imaginary but based on his history and conduct.”

“Violation of Article 22(5)? Language Barrier Argument Rejected”
The petitioner further argued that the grounds of detention and documents were provided to him in English, whereas he was only conversant in Hindi, thus violating his constitutional right under Article 22(5), which guarantees a detenu the right to make an effective representation against the detention order.

Rejecting this challenge, the Court found that the detaining authority had provided Hindi translations and explained the documents to the petitioner on March 4, 2024. The Court ruled, “Article 22(5) does not require the detaining authority to assume a detenu’s ignorance of language, but only to ensure that he is adequately informed. Since the petitioner was provided with translations, there is no violation of his rights.”

 “When Public Interest Is at Stake, Individual Liberty Cannot Be Absolute”

Dismissing the writ petition, the Delhi High Court upheld the detention order, ruling that it was based on “a well-reasoned apprehension of future criminal conduct.” The Court concluded:

“While individual liberty is a constitutional guarantee, it cannot be absolute when public safety is at stake. The petitioner’s history of drug trafficking, his repeated attempts to secure bail, and the likelihood of his release justified preventive detention in the larger interest of society.”

The Court reaffirmed that “preventive detention is an extraordinary measure, but in cases of habitual offenders engaging in illicit trafficking, it becomes a necessary tool to protect public interest.”

Date of Decision: 12 March 2025