TaxTMI 
TaxTMI 
2022 (10) TMI 51
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....questioning the legality and validity of the detention order passed by the Government of Tripura dated 12.11.2021 and thereby affirming the order of detention. 3. It all started with a proposal dated 28th of June, 2021 submitted by the Superintendent of Police, West Tripura District, Sub-Divisional Police Officer, Amtali, West Tripura to the Superintendent of Police (C/S), West Tripura, Agartala with a request to move the appropriate authority for passing an appropriate order of detention under the provisions of the PIT NDPS Act. 4. The proposal reads thus:- "GOVERNMENT OF TRIPURA OFFICE OF THE SUB DIVISIONAL POLICE OFFICER WEST TRIPURA, AGARTALA No. 1445/SDPO(AMT)/21 To Dated, 28th June, 2021 The Superintendent of Police (C/S), West Tripura, Agartala. Subject: Proposal for Preventive Detention order of accused Susanta Kumar Banik, S/o. Lt. Shanti Ch. Banik of Siddhiashram, Badharghat, Kalimata Sangha, near Railway Station, PS Amtali, West Tripura U/-3 of PIT NDPS Act, 1988. Sir, With reference to the subject cited above, it is to inform that I am submitting a proposal for issuance of preventive detention....
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....gs and psychotropic substances even after his arrest in previous case vide Amtali PS Case No. 208/19 and East Agartala PS Case No. 52/2021. It shows his determination is to continue his illegal NDPS business. It is further mentioned that illicit trafficking in narcotic drugs and psychotropic substances caused a serious threat to the health and welfare of the people and to protect the society from this menace it is required to take stern action against the subject. The appropriate authority may please be moved to issue detention order against Susanta Kumar Banik, S/o. Lt. Shanti Ch. Banik of Siddhiashram, Badharghat, Kalimata Sangha, near Railway Station, PS-Amtali, West Tripura U/s-3 of PIT NDPS Act, 1988 to prevent him from engaging in illicit trafficking of narcotic drugs and psychotropic substances further. Yours sincerely, Enclo: List of relied documents. Sd/- 28/6/21 (Anirban Das) Superintendent of Police, West Tripura District, Sub-Divisional Police Officer Amtali, West Tripura." 5. The Secretary (Home Department), Government of Tripura acting on the proposal dated 14.07.2021 forwarded by the Director General of Police proceeded to pass ....
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....e. He did not stop his illegal activities of narcotics drugs and psychotropic substances even after his arrest in previous case vide Amtali PS Case No. 208/19 and East Agartala PS Case No. 52/2021. It shows his determination is to continue his illegal NDPS business. Illicit trafficking in narcotic drugs and psychotropic substances caused a serious threat to the health and welfare of the people and to protect the society from this menace it is required to take stern action against the person. AND Whereas, Director General of Police, Tripura has proposed to prevent Shri Sushanta Kumar Banik, S/o. Late Shanti Ch. Banik of Siddhiashram, Badharghat, Kalimata Sangha, near Agartala Railway Station, PS-Amtali, West Tripura from continuing his harmful and prejudicial activity by engaging in illicit traffic of narcotic drugs and psychotropic substances in the interest of society. AND Now, therefore, the undersigned, being the specially empowered officer of the State Government in exercise of powers conferred by sub-section (1) of section (3) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 and careful examination....
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....the Central/State Government. Sd/- 12.11.2021 (A. Roy) Secretary to the Government of Tripura" 6. Thus, from the aforesaid, it appears that the order of preventive detention came to be passed essentially on the ground that in the past two First Information Reports (FIR) were registered against the appellant herein for the offences punishable under Sections 22(b)/22(C)/29 and 21(B) resply of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act, 1985') and is a habitual offender. The first FIR is dated 05.11.2019 and the second FIR is dated 25.04.2021. At the end of the investigation of the FIR dated 05.11.2019, the charge sheet came to be filed and the trial is pending as on date. The investigation so far as the FIR dated 25.04.2021 is concerned, the same is shown to have been pending on the date of the proposal. However, what is important to note is that in both the aforesaid cases registered under the NDPS Act, 1985, the appellant herein was ordered to be released on bail by the Special Court, Tripura. 7. The appellant questioned the legality and validity of the detention order by filing the Writ Petition (Civil) No. 6 of 2021 in the Hig....
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....n in express and explicit language. We think that all those decisions of this Court on this aspect need not be recapitulated and recited. But it would suffice to refer to the decision of this Court in Ashok Kumar v. Delhi Administration and Ors., (1982) 2 SCC 403, wherein the following observation is made: "Preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing." 14. In view of the above object of the preventive detention, it becomes very imperative on the part of the detaining authority as well as the executing authorities to remain vigilant and keep their eyes skinned but not to turn a blind eye in passing the detention order at the earliest from the date of the proposal and executing the detention order because any indifferent attitude on the part of the detaining authority or executing authority would defeat the very purpose of the preventive action and turn the detention order as a dead letter and frustrate the entire proceedings. 15. The adverse effect of delay in arresting a detenu has been examined by this Court in a series of....
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....hat the delay of the arrest of the detenu in that case showed that the detaining authority was not really and genuinely satisfied as regards the necessity for detention of the detenu for otherwise he would have tried to secure the arrest of the detenu promptly and not left him free to carry on his nefarious activities. Bhagwati, J. (as the learned Chief Justice then was) while dealing with this submission, made the following observation: "Now, there can be no doubt--and the law on this point must be regarded as well settled by these two decisions--that if there is unreasonable delay between the date of the order of detention and the date of arrest of the detenu, such delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate and it would be a legitimate inference to draw that the District Magistrate was not really and genuinely satisfied as regards the necessity for detaining the petitioner." 18. Chinnappa Reddy, J. speaking for the Bench in Bhawarlal Ganeshmalji v. State of Tamil Nadu, (1979) 1 SCC 465, has explained as follow: "It is further true that there must be a "liv....
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....the present case, the circumstances indicate that the detaining authority after the receipt of the proposal from the sponsoring authority was indifferent in passing the order of detention with greater promptitude. The "live and proximate link" between the grounds of detention and the purpose of detention stood snapped in arresting the detenu. More importantly the delay has not been explained in any manner & though this point of delay was specifically raised & argued before the High Court as evident from Para 14 of the impugned judgment yet the High Court has not recorded any finding on the same. VITAL MATERIAL OR VITAL FACT WITHHELD AND NOT PLACED BY THE SPONSORING AUTHORITY BEFORE THE DETAINING AUTHORITY 22. As noted above, in the case on hand, in both the cases relied upon by the detaining authority for the purpose of preventively detaining the appellant herein, the appellant was already ordered to be released on bail by the concerned Special Court. Indisputably, we do not find any reference of this fact in the proposal forwarded by the Superintendent of Police, West Tripura District while requesting to process the order of detention. The reason for laying much stress on th....
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.... "... if material or vital facts which would influence the minds of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not considered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal." 25. In Sk. Nizamuddin (supra) this Court observed as under: "We should have thought that the fact that a criminal case is pending against the person who is sought to be proceeded against by way of preventive detention is a very material circumstance which ought to be placed before the District Magistrate. The circumstance might quite possible have an impact on his decision whether or not to make an order of detention. It is not altogether unlikely that the District Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be detained, no order of detention should be made for the present, but the criminal case should be allowed to run its full course and only if it fails to result in conviction, then preventive detention should be resorted to. It would be most unfair to the person sought to b....