Miss Rejina Begum vs The Union Of India And 6 Ors
2021 Latest Caselaw 2809 Gua

                                                               Page No.# 1/16

GAHC010131482021




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                       Case No. : W.P.(Crl.)/15/2021

         MISS REJINA BEGUM
         D/O LATE RAJU ALI, R/O F.A. ROAD, KUMARPARA NEAR RAILWAY GATE
         NO-6, GUWAHATI, P.S.-BHARALUMUKH, DIST-KAMRUP(M), ASSAM

         VERSUS

         THE UNION OF INDIA AND 6 ORS
         REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY
         OF HOME, NEW DELHI

         2:THE STATE OF ASSAM
          REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
         OF ASSAM
          HOME AND POLITICAL DEPARTMENT
          DISPUR
          GUWAHATI-781006

         3:THE SECRETARY TO THE GOVT. OF ASSAM
          HOME AND POLITICAL DEPARTMENT
          DISPUR
          GUWAHATI-781006

         4:THE DIRECTOR GEENRAL OF POLICE
         ASSAM
          ULUBARI
          GUWAHATI

         5:THE COMMISSIONER OF POLICE
          GUWAHATI CITY
          GUWAHATI
          KAMRUP(M)
         ASSAM

         6:THE SUPERINTENDENT (OPS) NARCOTICS CONTROL BUREAU
                                                                        Page No.# 2/16

          HEAD QUARTERS
          GUWAHATI ZONAL UNIT
          VIP ROAD CHACHAL GUWAHATI-781022
          KAMRUP(M)
          ASSAM

          7:THE ADVISORY BOARD
           PITNDPS ACT
           C/O THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
           HOME AND POLITICAL DEPARTMENT
           DISPUR
           GUWAHATI-78100

                          BEFORE
            Hon'ble Mr. Justice Hitesh Kumar Sarma

     Advocates for the Petitioner::    Mr. YS Mannan, Advocate
                                       Mr. CK Nath, Advocate
                                       Mr. S Munir, Advocate

     Advocate for Respondent No. 1::        Ms. S Baruah, Central
                                            Government, Standing Counsel

     Advocate for Respondent Nos. 2 to 5 & 7:: Mr. D Nath, Senior
                                               Government Advocate

     Advocate for Respondent No. 6::       Mr SC Keyal, Standing Counsel,
                                           NCB.


     Date of hearing::                   25.10.2021.

     Date of Judgment::                 11th November, 2021.


                              JUDGMENT (cav)

Heard Mr. YS Mannan, learned counsel for the petitioner. Also heard Ms. S Baruah, learned Central Government, Standing Counsel, appearing for respondent No. 1, Mr. D Nath, learned Senior Government Advocate, appearing for respondent Nos. 2 to 5 and 7 as well as Mr. SC Keyal, learned Standing Page No.# 3/16

Counsel, NCB appearing for respondent No. 6.

[2] By filing this writ petition under Article 226 of the Constitution of India, the daughter of the detenu/petitioner has assailed the order of detention dated 16.07.2021 in respect of the detenu, issued by the Secretary to the Government of Assam, Home and Political Department (respondent No. 3), which was passed in exercise of power under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (herein after referred to as "PIT NDPS Act" for short).

[3] The detenu was detained on 19.07.2021 as she had appeared in the Bharalumukh Police Station in compliance to a notice, dated 17.07.2021 issued by the respondent No. 6, vide Annexure-3, under Section 67(c) of the NDPS Act (as amended), 1985 and was supplied with the grounds of detention issued by the respondent No. 3, dated 16.07.2021.

[4] The relevant part of the detention order reads as follows:- "Whereas on perusal of the Police report and the connected records, it appears that the said accused has involved herself with the crime of illegal business of narcotics drugs and she was arrested with regard to the following cases which prime facie proves that she is a repeated offender and indulged in carrying out illegal activities regarding transportation of NDPS articles.

1. Latasil PS Case No. 124/2016 U/S 21(C)/28 NDPS Act, 1985.

2. Bharalumukh PS Case No. 366/2020 U/S 21(b)/27A/29 NDPS Act, 1985.

3. Panbazar PS Case No. 656/2020 U/S 22(b)/25/27/27(a)/29 NDPS Act, 1985.

4. Bharalumukh PS Case No. 435/2021 U/S 22(b) NDPS Act. Whereas it also appears from the police report that during investigation Page No.# 4/16

the seized particulars suspected to be heroin in respect of Latasil PS Case No. 124/2016 U/S 21(C)/28 NDPS Act, 1985 and Bharalumukh PS Case No. 366/2020 U/S 21(b)/27A/29 NDPS Act, 1985 were sent to FSL for examination and FSL report gave positive result for narcotic drugs and psychotropic substances."

[5] Vide the said detention order, the detaining authority, i.e., the respondent No. 3 directed the respondent No. 5 to serve the detention order upon the detenu which was accordingly served. Thereafter, as directed by the respondent No. 3, vide letter dated 16.07.2021 (Annexure-2) the grounds for detention was communicated to the detenu by letter dated 19.07.2021 vide Annexure-4 (the date of receipt of the detention order is 19.07.2021 as mentioned in Annexure-4 itself). In the grounds of detention, it has been mentioned that four cases under the NDPS Act have been registered against the detenu being,

1. Latasil PS Case No. 124/2016 U/S 21(C)/28 NDPS Act, 1985.

2. Bharalumukh PS Case No. 366/2020 U/S 21(b)/27A/29 NDPS Act, 1985.

3. Panbazar PS Case No. 656/2020 U/S 22(b)/25/27/27(a)/29 NDPS Act, 1985.

4. Bharalumukh PS Case No. 435/2021 U/S 22(b) NDPS Act. [6] Other specific grounds mentioned in the detention order are quoted below:-

"4. It is also noticed that you are permanent resident of Dhubri but living in the Guwahati city for the purpose of illicit trade in narcotic drugs. Moreover, you are using railway track from Maligaon to Panbazar for your illicit trade in Narcotic drugs.

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5. Your above illegal activities have clearly established the fact that you have involved yourself with the crime of illegal trade of narcotic drugs. You have been operating the illegal narcotic drugs trade as a mastermind in several districts including Kamrup (M) which involves several drug peddlers including minors, School and college going students are being used by you to supply narcotic drugs and psychotropic substances in schools and colleges. This is ruining health, future and demographic dividend of society and shall lead to catastrophic consequences unless checked. Further, it has been observed that you are found to be a habitual offender of such illegal drugs trafficking in violation of the provisions of the NDPS Act, 1985.

6. At present you are lodged in the Central Jail, Guwahati. Your release on bail appears to be seriously detrimental to a large number of people mostly younger generation of society. Your release will lead to resurge in illegal trafficking of drugs. It also appears from Police report that once your are released on bail you will again continue you criminal activities along with your associates in a manner prejudicial to the provisions under the Narcotic Drugs and Psychotropic Substances Act, 1985."

[7] The writ petitioner has challenged the detention order on various grounds, as indicated below:-

A. That while the detention order is based on the grounds indicated therein, the non-application of mind of the detaining authority is explicit, particularly when one of the four cases, referred to therein, is not connected with the detenu. To substantiate her such claim, the petitioner has referred to Page No.# 6/16

Latasil PS Case No. 124/2016.

To resist this argument, Mr. Nath, learned Senior Government Advocate, has submitted that this is a matter of record, and therefore, the State respondent has no comment on the same.

B. The next argument is in respect of delay in disposal of the representations submitted to the detaining authorities, i.e. the respondent Nos. 1 and 2.

The learned counsel for the petitioner has submitted that there is unexplained inordinate delay in disposal of the representation submitted to the respondent No. 2. Since the status of the representation dated 23.07.2021 was not known to the detenu, she had filed another representation on 26.07.2021 to the respondent No. 2 as well as to the respondent Nos. 1 and 7 by registered post. The representations, aforesaid, have not been disposed of, without any explanation for the inordinate delay, by the respondent authorities.

The learned Senior Government Advocate, while resisting such argument, has referred to the statement made in the affidavit-in-opposition that there was no inordinate delay in disposal of the representation. That apart, it has been specifically pleaded in the affidavit-in-opposition that delay has not been taken as a ground by the petitioner in the instant petition, and therefore, the plea not taken cannot be decided by this Court in this application in view of the fact that the State respondent did not get an opportunity to rebut the same. C. The learned counsel for the petitioner has further argued, with reference to the specific statement made in the petition that the detention order was issued by the detaining authority with a view to frustrating the bail orders granting bail to the detenu.

Against such submission, the learned Senior Government Page No.# 7/16

Advocate has submitted, referring to the decision in Dharmendra Suganchand Chelawat & Anr. -vs- Union of India & Ors . reported in (1990) 1 SCC 746, particularly para 19 thereof, that the detention order shall be valid if the grounds of detention show that:

(a) The detaining authority was aware that the detenu is already in detention.

(b) There are "compelling reasons" for a detention order to be passed. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and

(b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. According to Mr. Nath, learned Senior Government Advocate, there exists the aforesaid conditions to justify the detention order, and therefore, the detention order, so passed by the detaining authority cannot be subjected to challenge, on this count.

D. It has also been averred in the petition and has been submitted by Mr. Mannan, learned counsel for the petitioner that if a person is detained under the PIT NDPS Act, the detainee is entitled to receive the documents examined by the Police while preparing the report and the failure to furnish dossiers and Police report to the detainee based on which the order of detention was issued would have vitiating effect on the detention order. It has further been submitted that no dossiers and Police report were furnished to the detenu in the instant case.

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Mr. Nath, learned Senior Government Advocate, referring to para 11 of the affidavit-in-opposition, has submitted that the documents have been furnished to the detenu as directed to the Commissioner of Police, Guwahati vide letter No. HMA-19/40/2021-VIG-H&P/ecf 168496/57, dated 16.07.2021 to provide legible copies of documents to the detenu as stated to have been enclosed with the grounds of detention along with a copy of the Police report.

Since these are the principal pleas taken in the writ petition and resisted by the respondents, particularly the State respondent, this Court would like to confine its discussions and decisions on the said issues under specific heads to avoid repetition. It deserves a mention here that the respondent Nos. 1 and 6 have adopted the argument advanced by Mr. Nath, learned Senior Government Advocate.

[8] Non-application of mind by the respondents/detaining authorities 8.1 So far this plea is concerned, it has been specifically averred by the petitioner that Latasil PS Case No. 124/2016 under Sections 21(C)/28 NDPS Act, 1985 has nothing to do with the petitioner's mother. It has further been submitted that the accused in the aforesaid Latasil PS Case No. 124/2016 and the present accused are two different persons which is tangible from the forwarding report of Latasil PS Case No. 124/2016. The copy of the forwarding report is placed before this Court. On perusal of the same it is found that the name and address of the accused forwarded to the court by the Investigating Agency and also charge-sheeted are as follows -

Rina Begum, W/o Lt. Mazibur Rahman, Of S.K. Bhuyan Road, Page No.# 9/16

Dighalipukhuri, Guwahati, PS- Latasil PS, Dist-Kamrup

Whereas the name and address of the detenu are as follows:- Miss. Rina Begum, W/o Late Raju Ali, Resident of F.A. Road, Kumarpara, Near Railway Gate No-6, Guwahati, P.S. Bharalumukh, District: Kamrup (M), Assam It is clearly understandable from the addresses aforesaid that although the name of the detenu is same with that of the accused in Latasil P.S. Case No. 124/2016, yet they are two different person. 8.2 Mr. Nath, learned Senior Government Advocate has also submitted that these are matters of record as clearly stated in para 9 of the affidavit-in- opposition. Since the record, as indicated above, is to the effect that the detenu is not the same person with that of the accused in the aforesaid Latasil P.S. Case No. 124/2016, the non-application of mind of the respondents is clearly explicit while passing the detention order, inter alia, on the grounds of registration of the Latasil Police Station case also against the mother of the petitioner.

[9]             Delay in disposal of the representation
9.1           It has been averred by the petitioner and has also been submitted

by the learned counsel for the petitioner, Mr. Mannan, that there is inordinate delay in disposal of the representation submitted to the respondent Nos. 1, 2 and 7. As regards the unexplained delay in disposal of the representation Page No.# 10/16

submitted by the detenu, the learned counsel for the petitioner has referred to the decision of this Court in W.P.(Crl.) No. 14/2020, dated 25.06.2021 (Debarshi Kashyap -vs- The Union of India & 7 Others ) and has submitted that the law is well settled that unexplained delay in disposal of the representation would have a fatal bearing on the detention of the detenu. 9.2 Mr. Nath, learned Senior Government Advocate has submitted, referring to para 7 of the affidavit-in-opposition, that the representation dated 26.07.2021 was received by the respondent No. 2 on 29.07.2021 and 31.07.2021 respectively and was disposed of on 06.09.2021 and therefore, the delay was not inordinate.

9.3 It has been submitted by Mr. Mannan, learned counsel for the petitioner, that the communication of the order rejecting the representation was received by the detenu on 25.09.2021 although the same was disposed of on

06.09.2021. Therefore, the representation was disposed of on the 39 th day of the receipt of the same by the respondent No. 2 by way of rejection and the

rejection order was served upon the detenu on 25.09.2021, i.e., on 59 th day. That apart, the learned counsel for the petitioner, during the course of hearing has also submitted, referring to the postal track consignment, that the respondent No. 1 received the representation on 02.08.2021 and the same has not been disposed of even on the date of hearing of this writ petition i.e., on 25.10.2021. Such fact has also been subscribed to by Ms. Baruah, learned Central Government Standing Counsel, while participating in the hearing and which has been recorded in the order dated 25.10.2021. Such being the position, the Central Government has not disposed of the representation even after 83 days.

9.4 Mr. Nath, learned Senior Government Advocate has relied upon the Page No.# 11/16

decision of Laishram Ningoi Manoharmayum Ongbi Dhania Devi -vs- Chief Secretary (Home, Government of Manipur), reported in 1995 (1) GLR 272 and referred to paragraph 4, 5, 6, 7 and 8 thereof to contend that when no plea has been taken in the writ petition as regards delay in disposal of representation the State did not get an opportunity to rebut the contention. That being so, according to Mr. Nath, this plea cannot be entertained. 9.5 This Court has visited para 9 of the writ petition and it is found therein that the petitioner has clearly stated that till date, she has not received any communication with regard to her representations and has been in dark about the fate of the representations, which according to her, is violation of her right guaranteed under Article 14 and 21 of the Constitution of India. Such being the statement in para 9 of the writ petition, in the considered view of this Court, plea of delay in disposal of the representations has been taken by the petitioner. Therefore, the argument of Mr. Nath, learned Senior Government Advocate, on this count, is not based on facts.

9.6 As indicated above, we have already found that the respondent No. 1 has not responded to the representation of the petitioner even after 83 days (on the date of hearing) and communication rejecting the representation by the respondent No. 2 was received by the petitioner on 25.09.2021 and as such, i.e., after 59 days of receipt of the representation by the respondent No. 2 although the rejection order was passed on 06.09.2021, i.e., after 39 days.

On the issue of delay in disposal of the representations, this Court would like to refer to and quote the following paragraphs from Debarshi Kashyap (supra):

"12.5 In Aslam Ahmed Zahire Ahmed Shaik (supra), the Hon'ble Supreme Court has held that unexplained delay of 7 days on the part of Page No.# 12/16

Jail Superintendent in transmitting the representation to the Central Government as a result of which, the same was received after 11 days, was avoidable and unexplained delay rendering the continued detention of the appellant as illegal and constitutionally impermissible. 12.6 In the case of Nongkhogin vs. State of Manipur & Ors. reported in 1991 (2) GLJ 60 a Division Bench of this Court has held that delay of 40 days in disposal of representation would have a vitiating effect on the order of detention. Rejecting the submission of the Government Advocate that the delay had occurred due to the fact that the file had to move from one officer to the other which took some time, the order of detention was set aside on the ground of undue delay in disposal of representation.

12.7 In Lipkaroy (supra) two months delay in disposal of representation submitted by the detenu was held to be unacceptable by the Division Bench. It was held that unexplained delay in disposal of representation of the detenu was violative of constitutional guarantee under Article 22(5) having a vitiating effect on the order of detention. Similar view was expressed in Lala Paite (supra) wherein, a Division Bench of this Court had set aside the order of detention on the ground of want of satisfactory explanation for the delay of 17 days in disposal of the representation of the detenu."

The observations made in the decision, referred to in para 12.5., 12.6 and 12.7 of Debarshi Kashyap (supra) appears to have been in toto applicable in the facts of the instant case and also in the backdrop of the facts as regards the delay in disposal of the representations of the detenu, as specifically indicated Page No.# 13/16

above.

[10] Plea as regards frustrating the bail granted to the detenu 10.1 It transpires from the instructions of the Government, placed before this Court, in writing, vide letter No. CJG. 7/2021/4561 dated Guwahati

the 6th October, 2021 of the Superintendent of Central Jail, Guwahati that the detenu was released from the Central Jail, Guwahati on 16.07.2021 and subsequently she was readmitted on 19.07.2021 under PIT NDPS Act vide order No-HMA-19/40/2021-VIG-H&P/ecf168496/52 dtd. 16.07.2021. 10.2 The admitted position, from the materials on record, is that the petitioner was finally granted bail by this Court on 16.07.2021. The fact reveals from the aforesaid instructions is clearly suggestive of the fact that on being enlarged on bail, the petitioner was released from jail on 16.07.2021 itself, i.e., on the date the detention order was issued. However, it appears from Annexure- 4, i.e., the communication of the grounds of detention that the same was received by the detenu on 19.07.2021 meaning thereby that on the date of serving the detention order/communication of grounds to her, she was not in detention. Such facts show that detention order and grounds therefor were not served upon the detenu on 16.07.2021 and rather it was served on her on 19.07.2021. The decision of the Hon'ble Supreme Court in Dharmendra (supra) does not appear to have application in the facts of the instant case for the reason that in Dharmendra (supra), the detention order was made while the petitioner was still in custody and it was held that the detention order passed while the detenu is in custody is valid whereas in the instant case, the detenu was out on bail on the date the detention order was served on her. Therefore, on facts, the aforesaid decision of Dharmendra (supra) has no application in the instant case.

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[11] Non-furnishing of the Police report to the detenu 11.1 I have perused and considered the rival contentions and have also perused the detention order issued vide letter No. HMA-19/40/2021-VIG-

H&P/eef 168496/53, dated 16th July, 2021 and served upon the detenu on 19.07.2021. It is found from the contents of the detention order that the copies of the seizure list and the FIR in each of the four cases, referred to in the detention order, were served upon the detenu along with the Police report. However, the entire dossiers based on which the Police report was prepared has not been furnished. The FIR and the seizure list are definitely not enough to prepare the Police report excluding the evidence collected against the detenu to form an opinion that preventive detention of the petitioner is necessary as the involvement of the detenu in the cases could be gathered only from the evidence collected in the investigation of those cases. 11.2 So far the failure on the part of the detaining authority to furnish copy of the Police report and other documents to the detenu, the learned counsel for the petitioner has referred to the decision in Purna Bora @ Dilip Bora @ Baba @ Lara @ Kamandu -vs- The State of Assam & Ors. , reported in 1999 (1) GLT 370 and has submitted that detention order of the detenu has been vitiated due to non-furnishing of the dossiers and the Police report to the detenu. In the instant case, as indicated above, copy of the Police report, the FIR and the seizure list were annexed with the detention order, but not the entire dossiers on the basis of which grounds were found and satisfaction was recorded for detention of the detenu.

We have noticed from the materials on record that although "Police report" is stated to have been furnished with the grounds of detention, yet there is no mention of furnishing of the dossiers based on which the detention order Page No.# 15/16

was issued. From the case wise grounds in the detention order, it is found that the detaining authority has based the grounds for detention, inter alia, also on the fact that there are independent witnesses in each of the case. However, the detenu was not furnished with the statements of the witnesses. Therefore, one of the basis for recording of satisfaction for detention of the detenu was clearly found to have not been furnished. In Purna Bora (supra) it was held that failure to furnish the dossiers and the Police report to the detenu based on which, order of detention was issued, would have a vitiating effect on the detention order. In the aforesaid decision the Division Bench had taken note of the fact that the grounds of detention came into existence subsequent to issuance of the order of detention and in the grounds, there was no mention about the "dossiers" and the "police report" based on which, the order of detention was issued. It was held that the fact that the "dossiers" and the report of the Superintendent of Police not having mentioned in the grounds of detention, that itself was a ground to strike down the order of detention................................".

In view of Purna Bora (supra), non furnishing of the dossiers, as indicated above, itself is a ground to strike down the order of detention. 11.3 In the case of Rekha vs. State of Tamil Nadu reported in (2011) 5 SCC 244 the Apex Court has observed that the history of liberty is the history of procedural safe guards. Procedural rights are not based on sentimental concerns for the detenu and those are not devised to coddle criminals or provide technical loopholes, through which dangerous persons can escape the consequences of their acts. They are basically societies assurance that the authorities would behave properly within rules distilled from long centuries of concrete experiences. Personal liberty protected under Article 21 is Page No.# 16/16

so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. The power of preventive detention must therefore, be confined to very narrow limits otherwise the great right to liberty will become nugatory. [12] In view of the decision on the foregoing points, this Court is of the view that there are sufficient grounds to invalidate the detention order. [13] For the reasons stated in the foregoing paragraphs, this Court is of the opinion that the order of detention dated 16.07.2021 is unsustainable in the eye of law.

[14]          The same is accordingly set aside.
[15]          The writ petition stands allowed.
[16]          The detenu be released forthwith, if her custodial detention is not

required in connection with any other pending proceeding.

[17]          The records be returned.




                                                         JUDGE



Comparing Assistant