Gauhati High Court
Jaan Parik @ Sanjay Parik vs The State Of Assam And 5 Ors on 18 November, 2021
GAHC010142542021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
Case No. : WP(C)/4639/2021
JAAN PARIK @ SANJAY PARIK
S/O LATE SIV NARAYAN PARIK
VILLAGE NO. 2 BHARALICHUK
PS AND DIST DHEMAJI, ASSAM
VERSUS
1.THE STATE OF ASSAM AND 5 ORS
TO BE REPRESENTED BY THE COMMISSIONER AND
SECRETARY TO THE GOVT. OF ASSAM HOME AND
POLITICAL DEPARTMENT, DISPUR GUWAHATI 06
2:THE SECRETARY TO THE GOVT. OF ASSAM
HOME AND POLITICAL DEPARTMENT
DISPUR GUWAHATI 06
3:THE DIRECTOR GENERAL OF POLICE
ASSAM ULUBARI, GUWAHATI 03
4:THE DEPUTY COMMISSIONER
DHEMAJI, ASSAM, 787057
5:THE SUPERINTENDENT OF POLICE
DHEMAJI, ASSAM, 787057
6:THE OFFICER IN CHARGE
DHEMAJI POLICE STATION
DHEMAJI, ASSAM 78705
Advocate for the Petitioner : MR M J QUADIR
Advocate for the Respondent : GA, ASSAM
-BEFORE-
HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
18-11-2021
Heard Mr. MJ Quadir, learned counsel for the petitioner.
Also heard Mr. D Mozumdar, learned Additional Advocate General,
Assam, appearing for the respondents.
2. The petitioner before this Court has challenged his
detention order dated 29.05.2021 passed by Secretary to the
Govt. of Assam, Home & Political Department. The admitted
position is that although the detention order was passed on
29.05.2021, the petitioner was actually placed in detention on
16.06.2021. This is also the case of the petitioner. The detention
order was passed under Section 3(1)1 of the Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988
(hereinafter to be referred as 'the Act, 1988'). The detention order
states that the Secretary to the Govt. of Assam has received the
police report regarding the petitioner from where it appears that
the petitioner is involved in crime of illegal business of narcotics
drugs since last 2-3 years and he was arrested in two cases.
There is prima facie case against him that he is a repeated
1 3. Power to make orders detaining certain persons.--(1) The Central Government or a
State Government, or any officer of the Central Government, not below the rank of a Joint
Secretary to that Government, specially empowered for the purposes of this section by that
Government, or any officer of a State Government, not below the rank of a Secretary to that
Government, specially empowered for the purposes of this section by that Government, may,
if satisfied with respect to any person (including a foreigner) that, with a view to preventing
him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is
necessary so to do, make an order directing that such person be detained.
(2) When any order of detention is made by a State Government or by an officer empowered
by a State Government, the State Government shall, within ten days, forward to the Central
Government a report in respect of the order.
(3) For the purposes of clause (5) of Article 22 of the Constitution, the communication to a
person detained in pursuance of a detention order of the grounds on which the order has
been made shall be made as soon as may be after the detention, but ordinarily not later than
five days, and in exceptional circumstances and for reasons to be recorded in writing, not
later than fifteen days, from the date of detention.
offender and having a large network of illicit trafficking of narcotic
drugs and his area of operation is Dhemaji and adjoining areas.
The two cases in which the petitioner is facing trial are reported
at Dhemaji Police Station and the cases were registered as
Dhemaji PS Case No.117/2018 under Section 20(B) NDPS Act and
Dhemaji PS Case No.160/2020 under Section 27/27(a)/29/25/28
NDPS Act. The order of detention is also accompanied by grounds
of detention where the details of the two criminal cases, i.e.
Dhemaji PS Case No.117/2018 and Dhemaji PS Case No.160/2020
were given. In the first case, it has been stated that an FIR was
lodged alleging that the petitioner was caught with 6 grams of
suspected heroin from his possession for which he is presently
facing trial. In the second case, some persons were caught while
using suspected drugs and some illicit materials were also
recovered from their possession and on the basis of statement of
one of those accused persons, who made a statement that the
petitioner is also involved with them, the petitioner was later
arrested and charged under the NDPS Act. The petitioner is
presently on bail in both the cases. The relevant portion of the
detention order dated 29.05.2021 reads as under:
"Whereas, I, Mukul Kumar Saikia, Secretary to the
Government of Assam, Home & Political Department on
perusal of the police records, am satisfied that Sri Sanjay
Parik @ Jaan Borah @ Jaan Parik, age 35 years, S/o Lt
Sivnarayan Parik, Vill- No.2 Bharalichuk, PS & Dist- Dhemaji
has been acting in the illicit trafficking of narcotic drugs since
2-3 years in a manner prejudicial to the provisions under the
NDPS Act, 1985 and his detention would certainly going to
break the network to a greater extent and therefore, in
exercise of powers conferred under Section 3(1) of the
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988 (PITNDPS Act, 1988), do hereby issue
this order directing that the above accused person, Sri Sanjay
Parik @ Jaan Borah @ Jaan Parik, age 35 years, S/o Lt
Sivnarayan Parik, Vill- No.2 Bharalichuk, PS & Dist- Dhemaji
be detained under the Prevention of Illicit Traffic in Narcotic
Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act,
1988) until further order.
Given under my hand and seal of the office on this 29th
day of May, 2021."
3. Having received the aforesaid detention order on
16.06.2021, the petitioner made a representation before the
authorities on 09.07.2021, a fact which is accepted by the
State. All the same, the representation was not immediately
decided by the State and the matter was sent to the Advisory
Board on 23.07.2021 and the opinion of the Advisory Board was
received by the concerned officer of the Government on
28.08.2021 wherein the Advisory Board gave an opinion that
there are sufficient grounds for detention of the petitioner
under the Act of 1988. After receiving the decision of the
Advisory Board, the representation of the petitioner was
decided on 06.09.2021. The order deciding the petitioner's
representation states as under:
"GOVERNMENT OF ASSAM
POLITICAL (A) DEPARTMENT :: DISPUR :: GUWAHATI
Fax-0361-2261421 :: [email protected]
NO.HMA-19/100/2020-VIG-H&P/eef 152481/440 Dated: 06/09/2021
Read: The representation dated 09/07/2021 submitted
by the PITNDPS detenu Sri Sanjay Parik @ Jaan
Borah @ Jaan Parik
ORDER
Perused the representation dated 09/07/2021 submitted by
the PITNDPS detenu Sri Sanjay Parik @ Jaan Borah @ Jaan
Parik as received from the Superintendent, District Jail,
Dhemaji vide No.DDJ/1/2021/441 dated 09/07/2021. After
careful examination of all records/Police reports it is seen that
there are no justified grounds to revoke the order of detention.
The representation dated 09/07/2021 submitted by the
PITNDPS detenu Sri Sanjay Parik @ Jaan Borah @ Jaan Parik
has been examined and as there are no grounds for revocation
of the Detention order, the prayer of the petitioner is rejected
by the Government of Assam.
(Diganta Barah, IPS)
Secretary to the Govt. of Assam,
Home & Political Department."
4. Thereafter, the petitioner has filed the present writ
petition before this Court. Counter affidavit was called from the
State which has been received. The petitioner has also filed
rejoinder to the counter affidavit.
5. We have heard Mr. MJ Quadir, learned counsel for the
petitioner as well as counsel for the State who is represented
by Mr. D Mozumdar, learned Additional Advocate General,
Assam.
6. Learned counsel for the petitioner would argue that his
detention order is absolutely illegal for the following reasons:
First and foremost, any detention order must meet the
requirement and the conditions as laid down under Article 22 of
the Constitution of India. The law of preventive detention
provides that as soon as a person is detained under any
preventive law of detention, the authority must serve detention
order on the detenue as early as possible. In the present case,
there has been no delay in serving the detention order on the
detenue as the admitted position is that although the detention
order was passed on 29.05.2021, the petitioner was actually
detained only on 16.06.2021 and the detention order was
served to him on the same day itself. The delay has been in
deciding the representation of the petitioner. The petitioner
made a representation against his detention order on
09.07.2021 which was not decided by the Government as was
required to do under the law. The Government kept waiting for
the report of the Advisory Board as the admitted position is that
only after the government received the order of the Advisory
Board on 28.08.2021 that it passed an order on 06.09.2021, by
which the representation of the petitioner was rejected.
Learned counsel for the petitioner has relied upon a recent
decision rendered by a three Judge Bench of the Hon'ble Apex
Court in the case of Ankit Ashok Jalan vs. Union of India and
others, reported in (2020) 16 SCC 127 .
Secondly, the submission of the learned counsel for the
petitioner is that although it is a requirement under Article
22(4) that the initial period of detention cannot be more than
three months, and in any case, the period of detention must be
mentioned in the detention order, the present detention order
dated 29.05.2021 does not mention the number of days for
which he has to be detained, rather it says that he has been
detained "until further order". Learned counsel for the
petitioner, therefore, would argue that since the detention
order does not prescribe the time for detention, it is again
illegal.
The third ground raised by the counsel for the petitioner
is that the petitioner has been charged for two offences under
the NDPS Act, 1985 in which the petitioner is facing trial and is
on bail. In the first case, i.e. Dhemaji PS Case No.117/2018, only
6 gms of suspected heroin was found in possession of the
petitioner. Learned counsel for the petitioner has brought to our
notice the relevant notification where the 'commercial quantity'
of heroin is stipulated as 250 gms and 'small quantity' is 5 gms.
In the second case, i.e. Dhemaji PS Case No.160/2020, nothing
was recovered from the petitioner. In fact, the petitioner was not
even present when the raid was conducted by the police and
narcotic officers. However, he was charged under the NDPS Act
only on the basis of statements made by the co-accused, as
stated earlier. Learned counsel for the petitioner, therefore, would
argue that since the petitioner is on bail on these two cases and
these are the only two cases in which the petitioner has been
charged under the NDPS Act, the appropriate steps for the State
could have been to move an application for cancellation of bail
rather than to pass the detention order.
7. Mr. D Mozumdar, learned Additional Advocate General,
Assam, on the other hand, would argue that although in the
present case the representation of the petitioner has been
decided by the government after it received the advice of the
Advisory Board, it cannot be said that the representation was
rejected on the advice of the Board. The order, by which the
representation of the petitioner was rejected, does not reflect that
the rejection is on the basis of the opinion given by the Advisory
Board. Therefore, it cannot be said that the rejection of the
representation is not based on an independent opinion of the
Government but is based upon the advice given by the Advisory
Board.
Regarding the second contention of the learned counsel for
the petitioner, learned Additional Advocate General would argue
that not specifying the number of days (for which the detention is
made), the detention order cannot be illegal. Moreover, the
Preventive Detention Act under which the petitioner has been
detained does not prescribe that in the first instance the detention
is to be for a specific number of days. In fact, a bare reading of
sections 10 and 11 of the 1988 Act shows that in the present case
maximum sentence can be one year and the present detention
has not gone beyond the period of one year. As far as clause 4 of
Article 22 is concerned, learned Additional Advocate General,
Assam would again argue that the spirit behind the provision of
clause 4 of Article 22 is that the representation of the petitioner
must be decided within 90 days because the preventive detention
cannot continue in the first instance beyond the period of three
months until and unless it has been approved by the Advisory
Board. This is also clear from the scheme given under Section 92
9. Advisory Boards.-- For the purposes of sub-clause (a) of clause (4) and sub-clause (c)
of clause (7) of article 22 of the Constitution,--
(a) the Central Government and each State Government shall, whenever necessary,
constitute one or more Advisory Boards each of which shall consist of a Chairman and two
other persons possessing the qualifications specified in sub-clause (a) of clause (4) of article
22 of the Constitution;
(b) save as otherwise provided in section 10, the appropriate Government shall, within five
weeks from the date of detention of a person under a detention order, make a reference in
respect thereof to the Advisory Board constituted under clause (a) to enable the Advisory
Board to make the report under sub-clause (a) of clause (4) of article 22 of the Constitution;
(c) the Advisory Board to which a reference is made under clause (b) shall after considering
the reference and the materials placed before it and after calling for such further information
as it may deem necessary from the appropriate Government or from any person, called for
the purpose through the appropriate Government or from the person concerned, and if, in
any particular case, it considers it essential so to do or if the person concerned desires to be
heard in person, after hearing him in person, prepare its report specifying in a separate
paragraph thereof its opinion as to whether or not there is sufficient cause for the detention
of the person concerned and submit the same within eleven weeks from the date of
detention of the person concerned;
(d) when there is a difference of opinion among the members forming the Advisory Board,
the opinion of the majority of such members shall be deemed to be the opinion of the Board;
(e) a person against whom an order of detention has been made under this Act shall not be
entitled to appear by any legal practitioner in any matter connected with the reference to the
Advisory Board and the proceedings of the Advisory Board and its report, excepting that part
of the report in which the opinion of the Advisory Board is specified, shall be confidential;
(f) in every case where the Advisory Board has reported that there is in its opinion sufficient
cause for the detention of a person, the appropriate Government may confirm the detention
order and continue the detention of the person concerned for such period as it thinks fit and
of the Act, 1988 where a detailed method is given as to the
opinion of the Advisory Board.
8. In the case of Ankit Ashok Jalan vs. Union of India and
others, reported in (2020) 16 SCC 127, the Hon'ble Apex Court
has dealt with the issue of preventive detention in detail, which
is absolutely relevant for our purposes. The questions framed
by the Court in the said case were given in paragraphs 10 of
the judgment. Paragraphs 10 reads as under:
"10. The following questions therefore arise:
10.1. (i) Whether the detaining authority was justified in
deferring the consideration of the representation till the receipt
of the opinion of the Central Advisory Board?
10.2. (ii) Whether the detaining authority ought to have
considered the representation independently and without
waiting for the report of the Central Advisory Board?
10.3. (iii) If the answer to the second question is yes, whether
the time taken by the detaining authority from 27-11-2019 till
14-1-2020 could be characterised as undue and avoidable
delay violating the constitutional rights of the detenues?"
9. The first two questions referred to above are absolutely
relevant for our purposes. The Apex Court, after considering a
catena of decisions on the said issue, has held in paragraphs 17
and 18 as under:
17. In terms of these principles, the matter of consideration of
representation in the context of reference to the Advisory
Board, can be put in the following four categories:
17.1. If the representation is received well before the reference
is made to the Advisory Board and can be considered by the
appropriate Government, the representation must be
considered with expedition. Thereafter the representation
in every case where the Advisory Board has reported that there is in its opinion no sufficient
cause for the detention of the person concerned, the appropriate Government shall revoke
the detention order and cause the person to be released forthwith.
along with the decision taken on the representation shall be
forwarded to and must form part of the documents to be
placed before the Advisory Board.
17.2. If the representation is received just before the reference
is made to the Advisory Board and there is not sufficient time
to decide the representation, in terms of law laid down
in Jayanarayan Sukul [Jayanarayan Sukul v. State of W.B.,
(1970) 1 SCC 219 : 1970 SCC (Cri) 92] and Haradhan
Saha [Haradhan Saha v. State of W.B., (1975) 3 SCC 198 :
1974 SCC (Cri) 816] the representation must be decided first
and thereafter the representation and the decision must be
sent to the Advisory Board. This is premised on the principle
that the consideration by the appropriate Government is
completely independent and also that there ought not to be
any delay in consideration of the representation.
17.3. If the representation is received after the reference is
made but before the matter is decided by the Advisory Board,
according to the principles laid down in Haradhan
Saha [Haradhan Saha v. State of W.B., (1975) 3 SCC 198 :
1974 SCC (Cri) 816] , the representation must be decided. The
decision as well as the representation must thereafter be
immediately sent to the Advisory Board.
17.4. If the representation is received after the decision of the
Advisory Board, the decisions are clear that in such cases
there is no requirement to send the representation to the
Advisory Board. The representation in such cases must be
considered with expedition.
18. There can be no difficulty with regard to the applicability
of the principles in the 1st and the 4th stage of the aforesaid
categories. The difficulty may arise as regards the application
of principles at the 2nd and the 3rd stage. But that difficulty
was dealt with sufficient clarity in Jayanarayan
Sukul [Jayanarayan Sukul v. State of W.B., (1970) 1 SCC 219
: 1970 SCC (Cri) 92] and Haradhan Saha [Haradhan
Saha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC (Cri) 816]
as stated hereinabove. If it is well accepted that the
representation must be considered with utmost expedition;
and the power of the Government is completely independent of
the power of the Advisory Board; and the scope of
consideration is also qualitatively different, there is no reason
why the consideration by the Government must await the
decision by the Advisory Board. None of the aforesaid cases
even remotely suggested that the consideration must await till
the report was received from the Advisory Board."
10. Admittedly, in the present case, the procedure as laid
down by the law has not been followed. No urgency was shown
while deciding the representation of the petitioner by the
Government which was submitted by the petitioner on
09.07.2021. Although the rejection order dated 06.09.2021
does not reflect that it is being rejected on the advice of the
Advisory Board which was received on 28.08.2021, but the fact
which is material for consideration would be that the order itself
was passed after the decision of the Advisory Board was
received by the Government and the order of rejection is in
accordance with the advice given. To that extent, we find that
there has been a clear violation of clause 5 of Article 22 read
with Article 21 of the Constitution of India and the law laid
down by the Hon'ble Apex Court in Ankit Ashok Jalan (supra).
11. We also add that considering the nature of the case,
where the petitioner has been charged for two offences under
the NDPS Act where, in one case, 6 gms of heroin was
recovered from him and, in the other case, nothing was
recovered from him. Under the normal circumstances, the
cancellation of bail could have been the proper remedy for the
State as the concerned Court would have been well within
jurisdiction to have considered cancelling the bail of the
petitioner had there been appropriate material before the Court
to show that the petitioner is a repeated offender under the
NDPS Act. We must say very clearly that these observations we
are making are only in the present facts and circumstances of
the case.
12. In view of the reasons given above, we allow the writ
petition setting aside the detention order dated 29.05.2021 and
direct the petitioner to be released from detention forthwith.
JUDGE CHIEF JUSTICE
Comparing Assistant
