TaxTMI 
TaxTMI 
TaxTMI 
2022 (6) TMI 1311
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.... 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. One pouch filled with suspected heroin was recovered from the p....
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....ubmit 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 Samsodhanagar, Bishalgarh on 01.02.2022 in presence of witnesses. [6] Aggrieved by his detention, the ....
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....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 Versus UNION OF INDIA AND ANOTHER reported in (1990) 2 SCC 1 [v] KAMALESHKUMAR ISHWARDAS PATEL Versus UNION OF INDIA AND OTHERS reported in (1995) 4 SCC 51 [vi] UNION OF INDIA Versus RANU BHANDARI rep....
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.... 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 have persuaded the detaining authority to desist from passing the order of detention. In support of his contention, counsel has relied on the judgment of the Hon'ble apex court in the case of M.AHAMEDKUTTY (supra) paragraph 25 of which reads as unde....
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.... 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 exchange and Prevention of smuggling Activities Act,1974, held that vital documents which have a direct bearing on the detention order having not been placed before the detaining authority and copies of such vital documents having not been supplied to the det....
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....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 of Ankit Ashok Jalan(supra), learned counsel argued that article 22(5) must be construed to mean that the detenue has a right to make representation not only to the advisory board but also to the detaining authority who made the order of detention and the detaining authority s....
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....n 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. Learned counsel contends that on similar ground the impugned detention order of the petitioner is liable to be quashed. [21] At the end of his submissions, Mr. Somik Deb learned Sr. Advocate has argued that there can be no freedom higher than personal freedom and court's writ is the ultimate in....
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....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 detention order was issued by an officer specially empowered under Section 3(1) of the PIT NDPS Act and from the detention order itself it was clear that the appellant was communicated by the detaining authority his right of making representation to the appropriate authority including the Advisory Board, ....
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....e 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 in (1980) 4 SCC 544, the apex court while dwelling on Article 22(5) of the Constitution observed that the said Article has two facets; i) communication of the grounds on which the order of detention has been made ii) opportunity of making a representation against the order of detention. The observation of the apex court....
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....tion 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 the grounds on which the order has been made, that is to say, the grounds on which the subjective satisfaction has been formed by the detaining authority and (ii) the right to be afforded the earliest opportunity of making a representation against the order of detention. By judicial craftsmanship certain ancillary and concomitant right....
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..........................................." [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 ground for setting aside the detention order. It is for the detenu to establish that the non-supply of copies of the documents has impaired the detenu's right to make an effective and purposeful representation. The demand made by the detenu for the document merely on the ground that there is a reference in the grounds of detention, cannot vitiate the otherwise legal ....
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....ections 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 drugs and psychotropic substances even after his arrest in 01 (one) previous case. And after being allowed bail in the previous case he was again found involved in East Agartala PS case No.2021EAG052, dated 25/04/2021, U/s 21(B)/29 of NDPS Act which shows his determination to continue his illegal NDPS business. It is further mentioned that, as illicit trafficking in narcotic drugs and psychotropic....
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.... 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 counsel of the petitioner that the proposal received from the DGP was not served on the detenue does not gain ground. [40] Learned counsel of the petitioner also assailed the impugned preventive detention order on the ground that neither the detention order nor any copy of the documents furnished to the detenue were intelligible to him because those were in English and the detenue was not conversant with the English langu....
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....er 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 the grounds of his detention. Copy of the detention order and other documents were also given to him and he was made aware that he could file representation against the detention order. A list of lawyers was also provided to the detenue. Detenue handed over the detention order and the documents supplied to him to his family members to contact his lawyer. The Advisory Board opined that the detention order was founded on adequate mate....