Bewildered by the explanation that a man was arrested because he was drinking tea in a "suspicious manner" at a road side stall near Shivaji University in Kolhapur, India, the Bombay high court directed the police to back off and set aside the preventive detention proceedings against him. Vijay Patil, a 49-year-old restaurant owner from Kolhapur had moved the high court to challenge his detention and sought damages. His lawyer Satyavrat Joshi said the police had no real reason to pluck him off the street at 11am on February 22 while he was merely sipping tea.
The high court said it agreed.
"Beyond saying that the petitioner had no explanation for being at the tea stall, we find nothing in the affidavit in reply, filed by police sub-inspector V T Jadhav," said a bench of Justices C Dharmadhikari and Gautam Patel last week.
The judgment penned by Justice Patel said, "This is bewildering. We were unaware that the law required anyone to give an explanation for having tea, whether in the morning, noon or night. One might take tea in a variety of ways, not all of them always elegant or delicate, some of them perhaps even noisy. But we know of no way to drink tea 'suspiciously'."
He added, "The ingestion of a cup that cheers demands no explanation. And while cutting chai is permissible, now even fashionable, cutting corners with the law is not."
The court said the arrest "presents far more fundamental problems." The provisions of section 151 Code of Criminal Procedure invoked by the police are "preventive, not punitive."
The section allows police to arrest a person without a warrant or a court order, as the only means to prevent a serious crime from taking place.
Such arrests can only be made when a police officer is satisfied that the impending cognizable crime cannot otherwise be prevented. "Otherwise," the high court said, "there is a violation of a person's fundamental right to life and liberty."
In this case, the magistrate too had imposed a bond of Rs 4,000 (£40, $64) on Patil before releasing him under section 107 Code of Criminal Procedure which deals in maintenance of public peace and tranquillity.
The high court said a magistrate must exercise these powers to order execution of bonds "only in an emergent situation."
The prosecutor KV Saste said the arrest was justified as Patil was a repeat offender with over 100 cases against him. In most cases, he was acquitted with not a single conviction and over 90 percent were outside the jurisdiction of Rajarampuri police station which had arrested him.
"His past criminal history is irrelevant as it does not lead to any conclusion of imminent criminal activity," the judges said. Besides, there is a five-step procedure that acts as a safeguard against potential abuse of power, before a magistrate can issue a showcause notice in such arrests, the HC said. The court did not grant Patil any compensation but held that "Previous acquittals cannot be brushed aside like this."