TaxTMI 
TaxTMI 
2022 (6) TMI 1311
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.... issued by the Secretary to the Government of Tripura in the Home Department. Grounds of his detention are stated to be as under: "(i) Shri Sushanta Kumar Banik S/O Late Shanti Ch. Banik of Siddhiashram, Badharghat, Kalimata Sangha, Near Agartala Railway Station, P.S.-Amtali, West Tripura has association with the smugglers of NDPS articles and illicit drug traffickers in connection with Amtali P.S. Case No.2019/AMT/208 dated 05.11.2019 U/A 22(b)/22(c)/29 of NDPS Act, 1985 and East Agartala PS Case No.2021 EAG 052 dated 25.04.2021 U/S 21(B)/29 of NDPS Act. (ii) He was charge sheeted in Amtali PS Case No.2019/AMT/208 dated 05.11.2019 U/S 22(b)/22(c)/29 of NDPS Act, 1985 which was registered following seizure of 92 gm brown sugar (Heroin) and 7600 nos yaba tablets. Investigation of the case has revealed that he is involved in running in illegal business of narcotic drugs throughout the State and outside the State. (iii) He again got involved in East Agartala PS Case No.2021EAG052 dated 25.04.2021 U/S 21(B)/29 of NDPS wherein on 25.04.2021 the said Sushanta Kumar Banik was again caught red handed while dealing NDPS substances near Badharghat Railway Station. ....
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....documents. Detenue also acknowledged the receipt of the same. The detenue did not submit any representation against the detention order. On appreciation of the materials placed before it, the Advisory Board in its report dated 20.01.2022 viewed as under: "19.In view of the discussions made here-in-above, we are fully convinced that the detenue should not be equated with other criminal offenders in particular criminal case, but is involved in consistent and continuous criminal activities and thereby he has kept the society around him under threat. Therefore, we are of the considered opinion that the detention order is sustainable and as such we are inclined to hold that the detention order was made consciously in all fitness of mind in consideration of the materials placed before the appropriate authority of the Government." [5] Pursuant to the report received from the advisory board, the State Government by order dated 28.01.2022 confirmed the detention order in terms of clause (f) of Section 9 of the PIT NDPS Act for a period of 01 year from the date of his detention i.e from 19.11.2021. The said confirmation order was also served on the detenue at Kendriya Samsodhanag....
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....ware as to whether the detention order was communicated to the Central Government in terms of the mandatory provision of law. (ix) Under Section 3 of the PIT NDPS Act, in case of State Government only an officer not below the rank of Secretary who is specially empowered by the government for the purpose of Section 3 of the Act can pass the detention order. The State respondent could not produce any material to show that the officer who issued the detention order was specially empowered by the State Government in terms of the provision of Section 3 of the PIT NDPS Act. (x) Till the date of filing of the writ petition petitioner was not made aware as to whether the advisory board approved the detention order. [10] Mr. Somik Deb, learned counsel appearing for the petitioner has relied on the following decisions to nourish his contentions against the impugned detention order: [i] HARIKISAN Versus STATE OF MAHARASHTRA AND OTHERS reported in AIR 1962 SC 911 [ii] STATE OF U.P Versus KAMAL KISHORE SAINI reported in (1988) 1 SCC 287 [iii] ASHOK KUMAR Versus UNION OF INDIA AND OTEHRS reported in (1988) 1 SCC 541 [iv] M.AHAMEDKUTTY Vers....
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....tion, learned counsel also relied on the decision of the apex court in the case of Ashok Kumar (supra). [14] Learned counsel argued that 02 criminal cases were instituted against the petitioner under NDPS Act. One is Amtali PS Case No.2019/AMT/208 which has culminated into charge sheet for offence punishable under Sections 22(b), 22(c) and 29 NDPS Act. The other case in which accused has been implicated for similar offence is East Agartala P.S. Case No.2021 EAG 052 which is pending at the investigation stage. Learned counsel contends that in both the cases accused was released on bail. But the detention order would demonstrate that the bail orders were never considered by the detaining authority to apprise himself about the need of preventive detention. Counsel contends that such non consideration of bail orders by the detaining authority amounted to non application of mind. Due to non- consideration of these bail orders, the detaining authority, according to learned counsel of the petitioner, could not reach a subjective satisfaction about the necessity of the detention order. Counsel has argued that had the bail orders been considered by the detaining authority, the same could....
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.... 22(5) of the Constitution. Learned counsel contends that the detenue should have been apprised of his right to make a representation to the detaining authority and the detaining authority was under a constitutional obligation to independently consider such representation and take a decision thereon. Learned counsel contends that in the case of Kamaleshkumar Ishwardas Patel(supra), the apex court upheld the order of the high court quashing the detention order mainly on the ground that the officer who was specially empowered to make an order of detention did not consider the representation of the detenue which amounted to denial of the constitutional safeguard provided under article 22(5) of the Constitution. Learned counsel argues that the same violation has taken place in this case which has rendered the detention order of the petitioner completely illegal. [16] Relying on the decision of the Supreme Court in the case of Union of India vs. Ranu Bhandari (supra), learned counsel of the petitioner has argued that in the said case the apex court, while examining the order of preventive detention of the petitioner issued under Section 3(1) of the Conservation of Foreign excha....
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....the apex court on the ground that the bail order of the petitioner was neither placed before the detaining authority at the time of passing of order of detention nor the detaining authority was aware of the order of bail which vitiated the subjective satisfaction of the detaining authority. According to Mr.Deb, learned senior counsel, the detention order in the present case stands vitiated for the same reason. Learned counsel has relied on paragraph 10 of the judgment which reads as under: "10. In the present case, since the order of bail dated 15-8-2010 was neither placed before the detaining authority at the time of passing the order of detention nor the detaining authority was aware of the order of bail, in our view, the detention order is rendered invalid. We cannot attempt to assess in what manner and to what extent consideration of the order granting bail to the detenu would have effected the satisfaction of the detaining authority but suffice it to say that non-placing and non-consideration of the material as vital as the bail order has vitiated the subjective decision of the detaining authority." [19] Having relied on the judgment of the apex court in the case o....
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....bound to consider the representation of the detenu on its own and keeping in view all the facts and circumstances relating to the case, come to its own decision whether to confirm the order of detention or to release the detenu." [20] In the case of Shyamal Das@ Simul(supra) which has been relied on by the counsel of the petitioner, detention order was issued under Section 3(3) of the National Security Act. Gauhati High Court set aside and quashed the detention order on the ground that there was no iota of material to show that alleged activities of the detenue genuinely gave rise to the apprehension of threat to the security of the state. The High Court, therefore, held that the detention order was suffering from non application of mind which could not be upheld in the eye of law. Learned counsel relied on the observation of the High Court where the high court held that application of mind is in fact sine qua non for passing of an order of detention. In the said case the High Court had also observed that the detenue was never informed by the detaining authority that he had a right to make representation to the State and/or Central Government and also to the advisory board. Lear....
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....ch the order of detention would be passed would, in such a case, be proximate in point of time and would have rational connection with the conclusion drawn by the authority that the detention of the person after his release is necessary. Learned counsel contends that in the present context 02 cases are pending against the petitioner under the NDPS Act and in both the cases he has been released on bail by the trial court and in 01 case he has been charge sheeted. Learned counsel argues that even thereafter, the petitioner was carrying out smuggling in narcotic drugs and psychotropic substances and his past conduct was so proximate in point of time to the detention order that there is no scope to question the rational connection between his past conduct and the detention order. [24] In the case of RAJAN WORLIKAR VERSUS STATE OF KARNATAKA AND OTHERS reported in (2001) 5 SCC 295 relied upon by the learned Advocate General the appellant challenged his detention order under PIT NDPS Act mainly on the ground of non communication to the detune his right of making representation to the State Government. The apex court discarded the contention of the petitioner on the ground that the dete....
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....rom carrying out such activities and such order would also help police in initiating financial investigation against the detenue in terms of the NDPS Act. Learned counsel contends that huge quantity of narcotic drugs and psychotropic substances were recovered from the physical possession of the detenue which were also mentioned in the detention order. [27] Learned counsel contended that in the case of Sayed Abul Ala(supra), the apex court had succinctly held that the antecedents of the detenue would be relevant factor for issuing preventive detention order under PIT NDPS Act. Learned Advocate General contended that detention order in the given case was issued under compulsion of the primordial need to maintain order in the society. Counsel urged the court to uphold the detention order of the petitioner. Our Views: [28] The law of preventive detention has been examined by the apex court in a catena of decisions. Apart from the decision, relied upon by the counsel of the parties, we may profitably refer to the following decisions of the apex court in order to adjudicate the issue from the right perspective. [29] In the case of Shalini Soni versus Union of India, reported ....
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....into account against him in arriving at the decision to detain him. It means that the detenu is to be informed not merely, as we said, of the inferences of fact but of all the factual material which have led to the inferences of fact. If the detenu is not to be so informed the opportunity so solemnly guaranteed by the Constitution becomes reduced to an exercise in futility. Whatever angle from which the question is looked at, it is clear that "grounds" in Art. 22(5) do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences. The 'grounds' must be self-sufficient and selfexplanatory. In our view copies of documents to which reference is made in the `grounds' must be supplied to the detenu as part of the `grounds'." [Emphasis added] [30] In A.C.RAZIA Versus GOVERNMENT OF KERALA reported in (2004) 2 SCC 621, the apex court further dwelt on the constitutional safeguards provided under Article 22(5) of the Constitution and enunciated the law as under: "10. We are concerned here with clause (5) of Article 22. The dual rights under clause (5) are : (i) the right to be informed as soon as may be of ....
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....there is no legal requirement that a copy of every document mentioned in the or- der shall invariably be supplied to the detenu. What is important is that copies of only such of those documents as have been relied on by the detaining authority for reaching the satisfaction that preventive detention of the detenu is necessary shall be supplied to him. .................................................." [33] The law laid down in the case of Radhakrishnan Prabhakaran(supra) was reiterated by the apex court in latter decision in J.ABDUL HAKEEM VERSUS STATE OF TAMILNADU reported in (2005) 7 SCC 70 and it was held as under: "7. In the latter decision of this Court , in the matter of Kamarunnissa Vs. Union of India and Others (1991) 1 S.C.C. 128, this Court reaffirmed the right of the detenu to receive the document which was taken into consideration by the detaining authority while formulating the grounds of detention. The Court further said that a duty and obligation is cast on the detaining authority to supply copies of those documents in the language known to the detenu; having said, the Court put a rider; but it is not that non-supply of each and every document provides a ....
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....olice conducted raid in his dwelling house and recovered 7600 yaba tablets in 38 packets and 92 gms of brown sugar from his possession. Pursuant to the recovery and seizure of the said contraband, Amtali P.S case No.2019 AMT 208 dated 05.11.2019 was registered against him and he was arrested. On completion of the investigation the investigating agency laid charge sheet against him under Sections 22(b), 22(c) and 29, NDPS Act. Within few months, he also got involved in East Agartala P.S case No.2021 EAG 052 which was registered under Sections 21(b) and 29, NDPS Act pursuant to recovery and seizure of 121.69 gms Heroin from his possession. In both the cases detenue was granted bail by the trial court. [36] In order to justify the detention order the state respondents in paragraph 17 of their counter affidavit have asserted as under: "17........it can be stated that Sri Sushanta kumar Banik S/o Lt. Shanti Ch. Banik of Siddhi Ashram, Badharghat, Kalimata Sangha Near Agartala Railway Station, PS Amtali, West Tripura District is a kingpin in illegal trafficking of narcotic drugs inside the state as well as outside the state. He did not stop his illegal activities of narcotic ....
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.... of NDPS Act." [39] As stated, we have been taken through the official records. The communication dated 14.07.2021, whereby a proposal on behalf of the Director General of Police, Tripura was sent to the Secretary, Home Department, Government of Tripura, was actually signed by the Assistant Inspector General of Police (crime) on behalf of the Director General of Police. The said communication contains the proposal of the Director General of Police for issuing preventive detention order against the detenue under PIT NDPS Act. It emerges from the record that the detenue put his signature on the said document in acknowledgment of the receipt of the letter. Communication dated 28.06.2021 of SDPO, Amtali which was forwarded by the SP, West to the Director General of Police has also been referred to in the said communication dated 14.07.2021. Apparently the said communication dated 28.06.2021 was also received by the detenue. In acknowledgement of the receipt of the documents he also put his signature on the said document. The record also goes to show that all papers in connection with the pending criminal cases were also served on the detenue. Therefore, the contention of the learned....
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....eriod of 10 days by communication dated 15.11.2021. In the affidavit dated 25.03.2022 sworn by the Under Secretary, Ministry of Finance (Department of Revenue), Government of India, it has been asserted that the detention order was also received by the Central Government. [42] The State Advisory Board on the reference made to it under Section 9 of the PIT NDPS Act passed an order on 08.12.2021 indicating that the detention order along with the grounds of detention were duly served on the detenue. But the detenue did not submit any representation. The advisory board observed that since the detenue had a right to be heard in person, if he so desires, the appropriate government should produce the detenue before the board on 16.12.2021 at 11.00 AM. Pursuant to the order of the advisory board detenue was produced before the advisory board on 16.12.2021. [43] The State Advisory Board in paragraph 11 of its report dated 20.01.2022 has reproduced the statement of the detenue recorded before the advisory board. The detenue stated before the advisory board that after the detention order was served on him he was put to Kendriya Samsodhanagar at Bishalgarh where he was made aware about t....