The division judge bench of Justice Uday Umesh Lalit, Justice S. Ravindra Bhat and Justice J.B. Padriwala of the supreme court of India in the case of Sushanta Kumar Banik Vs State of Tripura & Ors held that preventive detention is a serious invasion of personal liberty and the normal methods open to a person charged with the commission of any offense to disprove the charge or to prove his innocence at the trial are not available to the person preventively detained and, therefore, in prevention detention jurisprudence whatever little safeguards the Constitution and the enactments authorizing such detention provide assume utmost importance and must be strictly adhered to.
BRIEF FACTS
The factual matrix of the case is that the order of Preventive detention was passed on the ground that the e FIRs were registered against the accused for the offenses punishable under Sections 22(b)/22(C)/29 and 21(B) reply of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘NDPS Act, 1985’) and is a habitual offender. However, 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. Further, the legality and the validity of the detention were challenged by the appellant.
GROUNDS ON WHICH THE PRESENT APPEAL WAS ALLOWED
- Delay in passing the order of detention from the date of proposal thereby snapping the “live and proximate link” between the prejudicial activities and the purpose of detention & failure on the part of the detaining authority in explaining the such delay in any manner.
- The detaining authority remained oblivious of the fact that in both the criminal cases relied upon by the detaining authority for the purpose of passing the order of detention, the appellant detenu was ordered to be released on bail by the special court. The detaining authority remained oblivious as this material and the vital fact of the appellant detenu being released on bail in both the case was suppressed or rather not brought to the notice of the detaining authority by the sponsoring authority at the time of forwarding the proposal to pass the appropriate order of preventive detention.
COURT’S OBSERVATION
DELAY IN PASSING THE ORDER OF DETENTION
The hon’ble court observed that there is no explanation worth the name why it took almost five months for the detaining authority to pass the order of preventive detention.
The apex court held that it is manifestly clear from a conspectus of the above decisions of this Court, that the underlying principle is that if there is unreasonable delay between the date of the order of detention & actual arrest of the detenu and in the same manner from the date of the proposal and passing of the order of detention, such delay unless satisfactorily explained throws a considerable doubt on the genuineness of the requisite subjective satisfaction of the detaining authority in passing the detention order and consequently render the detention order bad and invalid because the “live and proximate link” between the grounds of detention and the purpose of detention is snapped in arresting the detenu. The question of whether the delay is unreasonable and stands unexplained depends on the facts and circumstances of each case.
The court further relied upon the judgments titled, Ashok Kumar v. Delhi Administration and Ors, Sk. Nizamuddin v. State of West Bengal, Suresh Mahato v. The District Magistrate, Burdwan, and Ors., SK. Serajul v. State of West Bengal, Bhawarlal Ganeshmalji v. State of Tamil Nadu, and Shafiq Ahmed v. District Magistrate, Meerut and Ors.
In 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 yet the High Court has not recorded any finding on the same.
VITAL MATERIAL OR VITAL FACTS WITHHELD AND NOT PLACED BY THE SPONSORING AUTHORITY BEFORE THE DETAINING AUTHORITY
In the two FIRs on which the detaining authority relied for the purpose of preventively detaining the appellant herein, the appellant was already ordered to be released on bail by the concerned Special Court. The reason for laying much stress on this aspect of the matter is the fact that the appellant though arrested in connection with the offense under the NDPS Act, 1985, the Special Court thought fit to release the appellant on bail despite the rigors of Section 37 of the NDPS Act, 1985.
The hon’ble court relied upon the judgment titled, Asha Devi v. Additional Chief Secretary to the Government of Gujarat and Anr.
The hon’ble court held that it emerges that the requisite subjective satisfaction, the formation of which is a condition precedent to passing of a detention order will get vitiated if the material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influence his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. It is clear to our mind that in the case on hand at the time when the detaining authority passed the detention order, this vital fact, namely, that the appellant detenu had been released on bail by the Special Court despite the rigors of Section 37 of the NDPS Act, 1985, had not been brought to the notice and on the other hand, this fact was withheld and the detaining authority was given to understand that the trial of those criminal cases was pending.
Preventive detention is a serious invasion of personal liberty and the normal methods open to a person charged with the commission of any offense to disprove the charge or to prove his innocence at the trial are not available to the person preventively detained and, therefore, in prevention detention jurisprudence whatever little safeguards the Constitution and the enactments authorizing such detention provide assume utmost importance and must be strictly adhered to.
CASE NAME- Sushanta Kumar Banik Vs State of Tripura & Ors
CITATION- CRIMINAL APPEAL NO. 1708 OF 2022
DATED- 30.09.22
CORUM- Justice Uday Umesh Lalit, Justice S. Ravindra Bhat and Justice J.B. Padriwala
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