Preventive detention. Order of detention can be passed even if detenue is in custody. Law on the point discussed. Karnataka High Court.

Gayatri vs The Police Commissioner and others. Writ Petition Habeus Corpus 53/2020 decided on 18 November 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/349000/1/WPHC53-20-18-11-2020.pdf

Relevant paragraphs: 2. Learned counsel for the petitioner submitted that grounds referred to in the order of detention are factually incorrect and the order of detention was passed when the detenue was already in judicial custody. Since the detenue was in judicial custody, therefore, the order of detention could not have been passed.

5. The Act* was enacted with an object to ensure that the maintenance of public order in the State is not adversely affected by the activities of known anti-social elements. The legislature also took note of the fact while enacting the Act that the activities of antisocial elements like bootleggers, drug offenders, gamblers, immoral traffic offenders and slum grabbers and also video and audio pirates, have caused a feeling of insecurity among the public and even tempo of life especially in urban areas has frequently been disrupted because of such persons.

6. It is well settled in law that preventive detention is not punitive but is a precautionary measure and its object is not to punish a person but to prevent him from doing any illegal activity which may be prejudicial to maintenance of public order. The power of preventive detention is invoked as an anticipatory measure and the same does not relate to an offence in respect of which criminal proceeding is pending to punish a person.

7. The Supreme Court in Union of India & another vs Dimple Happy Dhakad 2019 SCC Online 875 has held that even if a detenue is in custody, an order of detention can be passed provided the detaining authority is satisfied that if the detenue is released from the custody, he is likely to indulge in activities which are prejudicial to maintenance of public order….Therefore, the contention of the detenue that since he is in custody therefore, order of detention could not have been passed, does not deserve acceptance. PETITION DISMISSED.

Compiled by S. Basavaraj, Advocate, Daksha Legal.