Calcutta High Court (Appellete Side)
Janu vs Union Of India & Others on 25 August, 2025
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
RESERVED ON: 21.08.2025
DELIVERED ON: 25.08.2025
PRESENT:
THE HON'BLE MR. JUSTICE TAPABRATA CHAKRABORTY
AND
THE HON'BLE MR. JUSTICE REETOBROTO KUMAR MITRA
W. P. A. (H) NO. 22 OF 2025
JAHANARA BIBI @ JAHANARA BEGAM @ JAHANARA MONDAL @
JANU
- VERSUS -
UNION OF INDIA & OTHERS.
Appearance:
Mr. Uday Sankar Chattopadhyay, Adv.
Mr. Pronay Basak, Adv.
Ms. Rajashree Tah, Adv.
Ms. Trisha Rakshit, Adv.
Ms. Aishwarya Datta, Adv.
Ms. Sadia Parveen, Adv. . ... For the Petitioner
Mr. Arun Kumar Maiti (Mohanty) Adv.
Mr. R. R. Mohanty, Adv. ... For the UoI/Respondents
REPORTABLE
Reetobroto Kumar Mitra, J.:
1. This Writ Petition has been filed seeking a Writ of Habeas Corpus upon setting
aside, cancelling, withdrawing and/or quashing the detention order dated 5th
September, 2024 passed by the Detaining Authority, Joint Secretary under the
Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances
Act of 1988 (hereinafter referred to as PIT-NDPS) directing that the petitioner
be detained and kept in Loknayak Jayaprakash Narayan Central Jail,
Hazaribagh, Jharkhand (hereinafter referred to as the said Jail) to prevent the
petitioner’s participation in any further illicit activity and in public interest. The
petitioner has been found to be a habitual offender and threat to innocent
persons such that her activities are prejudicial and detrimental to the society.
2. The facts leading to the order of 5th September, 2024 are clear and
unequivocal. The petitioner had been arrested on account of three cases as
under:-
i. FIR No. 3 of 2020 pending before City Sessions Court, Calcutta, in
which the petitioner was granted bail on 11th December, 2020.
(1.01 Kg of heroin)
ii. NCB Case No. 19 of 2023 whereby petitioner was granted bail on
9th May, 2024. ( seizure of 30 Kg of ganja)
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REPORTABLEiii. NDPS Case No. 4 of 2024 corresponding to NCB Case No. 2 of
2024 pending before the learned Additional Sessions Judge 12th
Court, Alipore in which the petitioner was granted bail on 5th
March, 2024.( seizure of 7 Kg of ganja)
3. In all three cases the petitioner was (allegedly in possession) of heroin and ganja.
In the second case, petitioner was found to be in possession of ganja exceeding
20 kg ceiling, making it of commercial value. The petitioner had been granted
bail in all three matters by the Courts of competent jurisdiction, including an
order by the Hon’ble High Court at Calcutta.
4. The order of detention dated 5th September, 2024 was communicated to the
petitioner sometime in December, 2024. On 16th December, 2024, the
petitioner was taken to the prison in Jharkhand but refused admission on the
first instance. Thereafter, on 18th January, 2025, the petitioner was lodged in
the prison in Jharkhand.
5. The petitioner’s son made a representation on 22nd January, 2025 seeking
cancellation of the order of detention. A second representation, this time by the
petitioner herself, was made on 10th February, 2025.
6. The representation dated 22nd January, 2025 was rejected by an order dated
19th February, 2025, while the representation of 10th February, 2025 was
rejected twice, once on 29th April, 2025 and again on 14th May, 2025. The
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rejection on 14th May, 2025, while the present Writ Petition was filed and
pending.
7. The petitioner thereafter made a representation to the Advisory Board,
Jharkhand against the order of detention, dated 5th September, 2024.
8. In the meanwhile, the Union of India through Narcotics Control Bureau, KZU,
Kolkata, had applied for cancellation of the petitioner’s bail, which was rejected
by the High Court at Calcutta on 6th March 2025.
9. The Writ Petition was filed sometime in February, 2025 and obviously does
not, as it could not have, challenged the order/opinion of the advisory board,
made subsequently on 26th March, 2025. A supplementary affidavit has been
filed by the petitioner bringing on record the order dated 19th February, 2025
rejecting the representation dated 22nd January, 2025 as well as the advisory
board’s opinion dated 6th March, 2025 as well as the order passed by the
Hon’ble High Court at Calcutta dated 6th March 2025 refusing to cancel the
bail subsisting in favour of the petitioner herein.
10. It is in this factual conspectus that the Writ Petition has been filed before us
challenging inter alia the order dated 5th September, 2024. A reference was
made at the behest of the petitioner of the detention order to the Advisory
Board. The Advisory Board rendered its opinion on 6th March, 2025, that the
detention order had been made validly.
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11. We have heard counsel appearing for the parties at great length and also noted
the judgments relied upon by both parties. The petitioner’s grievance may be
summarised as under:-
I. For a period of four and a half months from September, 2024 to
December 2024 the petitioner had not been informed of the order
of detention.
II. The detaining authority has gone beyond its jurisdiction in
determining and coming to the finding that the petitioner is indeed
involved in the crimes complained of. Thus, the detaining authority
has committed a jurisdictional error in passing the order dated 5th
September, 2024.
III. The detaining authority has not recorded any subjective satisfaction,
which is the sine qua non as stipulated, before coming to a finding
that the detention of the accused person is essential to stop and
prevent any further act which may be prejudicial to the society at
large.
IV. The petitioner, having obtained bail in all three matters as well as
complied with the conditions of bail, could not be construed as a
threat to the public at large and no reason has been shown by the
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REPORTABLEdetaining authority to take such a drastic step as detaining her in a
Jail, far away from her place of residence.
V. There is no finding that the petitioner’s presence will result in
breach of public order.
VI. The petitioner has relied upon the following decisions 2022 SCC
Online SC 1333, (2021) 9 SCC 415, 1970 Cri.L.J. 852, AIR Online
2024 SC 915., AIR 2025 SC 1685, AIR Online 2021 Cal 867, 2024
Cri.L.J. 173 and 2024 SCC Online Del 5471 as well as the decision
of the Hon’ble Supreme Court of India in Criminal Appeal No.
2897 of 2025 Dhanya M vs. State of Kerala &Ors.
12. Counsel for the respondents has sought to justify the detention on following the
conspectus of facts:-
i. The Writ Petition is not maintainable, in as much as the efficacy of
the order dated 5th September, 2024 has expired with the passing of
the opinion of the advisory board on 6th March, 2025.
ii. This order/opinion of the advisory board has not been assailed in
the Writ Petition and therefore a fresh Writ Petition ought to be
filed on the basis of such new cause of action (being the
order/opinion of the advisory board dated 6th March, 2025).
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iii. The scope of the Writ Petition could not have been enlarged by way
of a supplementary affidavit and the case has to be within the four
corners of the pleadings in the petition.
iv. All documents at all material times had been made over to the
petitioner and explained to her in a language that she understands.
v. The petitioner is neither a rustic lady nor a person remotely
concerned with the crimes as sought to be made out in the petition.
In fact, the petitioner is a kingpin of the narcotic supply business in
the locality.
vi. The petitioner has in the statement made by her voluntarily
admitted that she engages other persons from other states to acquire
narcotic substances for her, which she would deal with over a phone
call and through her aides and assistants.
vii. The petitioner’s case has been considered and rejected by the
detaining authority, upon considering several documents on at least
three occasions, upon furnishing adequate reasons.
viii. The detaining authority has considered all documents, past records
and the conduct of the petitioner, who has on earlier occasions been
untraceable once released on bail.
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ix. The petitioner being the kingpin of the narcotic trade, it is
imperative that she be removed to a Jail in a place, away from her
locale, as on earlier occasions and prior experience reveal that the
petitioner is equipped to run the syndicate remaining inside the jail
of her locale.
x. The respondent has also argued that in judicial review, this Hon’ble
Court would not get into the intricacies of the crime nor would it
intervene and interject in the subjective opinion rendered by the
detaining authority or the advisory board, unless it is shown that
such opinion was opaque, contrary to the established procedure or
that there was mala fide in reaching the conclusion as reached.
None of such issues have been raised by the petitioner and hence
the Writ Petition should be dismissed.
xi. The respondent has relied upon the following decisions: 1974 AIR
2154, (2003) 4 COMPLJ 333 (CAL) and a judgment of Delhi High
Court in Monu @ Sandeepvs Union of India through its Secretary
and Ors. in the case of W.P. (CRL) 2743 of 2024.
13. We have heard both parties at length and considered the arguments and the
decisions relied upon by them.
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14. 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. We say “constructive
possession” since a co-ordinate bench of this Hon’ble Court has held that ganja
was recovered from her co-accused and she was arrested on the basis of the
statement of the co-accused before the IO. The money recovered also could not
be traced to the alleged transaction. These findings in the order dated 9th May,
2024, leading to the grant of bail have not been challenged.
15. Thus, the petitioner on all three occasions was granted bail by the Courts of
competent jurisdiction, including the Hon’ble High Court at Calcutta.
16. The petitioner has challenged the order of the detaining authority of 5th
September, 2024. This order was referred to the Advisory Board. Mr. Maity
appearing for the respondent produced the original order of the Advisory
Board, which we perused and returned to Mr. Maity, keeping a copy on record.
The opinion rendered by the advisory board of the state of Jharkhand is a bare
confirmation of the order of the detaining authority.
17. The findings of detaining authority which led to the order of 5th September,
2024 are enumerated hereunder:-
I. That the petitioner is a habitual offender.
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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.
18. The detaining authority came to the conclusion that the petitioner, being a
habitual offender, could probably indulge in such activities of trafficking if not
kept in preventive detention. Subjective satisfaction relates not so much to why
the petitioner should be kept in preventive detention but more on the factum
that the petitioner has been involved in trafficking over a period of time. The
detaining authority has come to this finding even after the petitioner was granted
bail in the three criminal cases. 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, which is a bare observation regarding her propensity to be
involved in such trafficking. 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 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. A close reading of the detaining
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order makes it clear that the reasons for the said order are not any apprehension
of any public harm, danger, or alarm but merely because the detenu was
successful in obtaining bail from the courts of competent jurisdiction in each of
the three FIRs
19. 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. The order was executed only on 18th January, 2025, almost 5
months after the order was passed. 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.
20. It will also not be out of place here to mention that since preventive detention, is
an anathema to personal liberty, one has to give equal credence and weightage
to the personal liberties of a person which are proposed to be suspended by way
of the order of preventive detention.
21. The ordinary remedies available to the enforcement authorities are adequate as
stipulated under the NDPS Act which clearly do not warrant invocation of
Section 3 of PIT-NDPS as an evasion of the personal liberties of an individual.
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22. It is also of great concern that once the appropriate Courts had already enlarged
the concerned person, the petitioner herein, on bail on three separate occasions,
the detaining authority proceeded to pass the order of 5th September, 2024
without considering the factum of bail being granted to her.
23. It will not be out of context to mention that the detaining authority’s subjective
satisfaction is geared towards the findings of the guilt of the detenu. The only
apprehension of the detaining authority and hence his subjective satisfaction in
respect thereof, is that the detenu might once again indulge in her illegal
activities if she is not detained. The mere apprehension of repetition of a crime
is not a ground for preventive detention.
24. To apply the test of legality of the detention order, it is absolutely imperative
that we test such order on the basis of the parameters set forth by the Hon’ble
Apex Court in Ameena Begum v. State of Telangana and Ors. reported in 2023
SCCOnLine SC 1106. Clearly the detention order fails to meet the mark as set
forth in Ameena Begum (supra).
25. The petitioner went through the rigours of Section 37 of the NDPS Act, 1985
and even thereafter was granted bail on three separate occasions. In fact, for the
third alleged crime, possession of 7 kg of ganja, the application for cancellation
of bail was also rejected by a bench of this Hon’ble Court. Thus, there is no
reason to construe that the rigours of Section 37 of the NDPS Act, 1985 had not
been taken into consideration while the petitioner was granted bail. The
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authorities presently cannot override the grant of bail, and make the present
order detaining her on the self-same grounds on which the petitioner had been
granted bail.
26. It is also of relevance to note here that in the decision of Sushanta Kumar Banik
v. State of Tripura reported in 2022 SCCOnLine SC 1333 the Hon’ble Apex
Court had refused to keep a person in preventive detention, who had earlier
been charged with two cases of possession of narcotics and was also involved in
running the illegal business of narcotic drugs throughout the state of Tripura and
was caught red-handed while dealing with such substance near a railway station.
Facts of the case are very similar to the facts of the instant case. A period of four
months lapsed before the order of preventive detention was executed. The
delay in effecting the order of detention was unexplained, in spite of repeated
queries from the Court. Such delay breaks the live and proximate link between
the grounds of detention and the avowed purpose of detention.
27. In the decision of the Hon’ble Apex Court in Ameena Begum vs. State of
Telangana and Ors. reported in 2023 SCCOnLine SC 1106, the facts were
surprisingly similar, in as much as in the said case there were three criminal
proceedings, in all of which the detenu had been released on bail. The Hon’ble
Apex Court held that in view of the enlargement on bail in three criminal cases,
the provision of the Act, which is an extraordinary statute, could not have been
resorted to when ordinary criminal law (NDPS Act 1985) provides sufficient
means to address the apprehension leading to the impugned detention order. In
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fact, in the present case, the application seeking cancellation of bail was also
dismissed by a Division Bench of this Hon’ble Court.
28. 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. Thus, to give
credence to such an aberration, the probative value of the materials on record
must be of a very high order to justify suspending an individual’s right to
freedom and liberties.
29. It is a well settled proposition, through years of judicial pronouncements as late
as in 2025 by the Hon’ble Supreme Court of India that preventive detention is
an extraordinary power in the hands of the State which must be used sparingly
as it curtails the liberty of an individual in order to prevent an anticipated
commission of an offence which could disrupt public order. Needless to say that
preventive detention is an exception to Article 21 and therefore must be applied
only in rare cases.
30. Any order of detention, on the basis of allegation, prior to a conviction is
nothing but an invasion of personal liberty of an individual and should therefore
adhere strictly to the statutory requirement and even stricter procedural and
substantive safeguards as envisaged under Article 22 of the Constitution of
India. The Hon’ble Apex Court in several of its decisions has reiterated that the
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power of preventive detention is a “necessary evil and must be exercised only
within strict statutory and constitutional confines”. The detaining authority must
have contemporaneous and relevant material to which an application of mind
without relying on conjecture and assumption must be shown. Keeping in mind
the limited scope of interference in judicial review, we cannot turn a blind eye to
the detaining authority’s mechanical adoption of the recommendations given by
the police authority. A mere line that the petitioner’s enlargement into civil
society may give rise to threat and harm to the society at large is wholly
insufficient and inadequate to suspend her personal liberties.
31. 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.
32. 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
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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.
33. 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.
34. 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.
35. With this observation and direction, we allow the writ petition.
36. The appeal and the connected applications are disposed of without any order as
to costs.
37. An urgent photostat-certified copy of this order, if applied for, should be made
available to the parties upon compliance with the requisite formalities.
(Reetobroto Kumar Mitra, J.) (Tapabrata Chakraborty, J.)
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Later:
After pronouncement of the judgment, Mr. Maiti learned advocate appearing
for the respondents prays for stay of operation of the judgement.
Such prayer is considered and refused.
(Reetobroto Kumar Mitra, J.) (Tapabrata Chakraborty, J.)
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