Ali Ahmed Laskar @ Bablu Mulla vs The State Of Assam And 6 Ors
2022 Latest Caselaw 220 Gua

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GAHC010191602021




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

                        Case No. : WP(C)/6206/2021

         ALI AHMED LASKAR @ BABLU MULLA
         S/O LATE NUR UDDIN LASKAR.
         VILLAGE NARAINPUR PART III, PO , PS AND DIST HAILAKANDI, ASSAM

         VERSUS

         THE STATE OF ASSAM AND 6 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
          HAILAKANDI
          PO, PS AND DIST HAILAKANDI
         ASSAM

         5:THE SUPERINTENDENT OF POLICE
          HAILAKANDI
          PO, PS AND DIST HAILAKANDI
         ASSAM

         6:THE OFFICER IN CHARGE
          HAILAKANDI POLICE STATION
         PO, PS AND DIST HAILAKANDI
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              ASSAM

              7:THE SUPERINTENDENT
               DISTRICT JAIL
               PO, PS AND DIST HAILAKANDI
              ASSA

Advocate for the Petitioner   : MR M J QUADIR

Advocate for the Respondent : GA, ASSAM

BEFORE HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

For the Petitioner : Mr. M. J. Quadir, Advocate.

For the Respondents : Mr. D. K. Sarmah, Addl. Sr. Govt. Adv.

                 Date of Hearing             : 11.01.2022
                 Date of Judgment            : 24.01.2022



                                      JUDGMENT & ORDER (CAV)

          (Soumitra Saikia, J)

This writ petition is filed by the petitioner- Sri Ali Ahmed Laskar @ Bablu Mulla, assailing the order dated 17.07.2021 issued by the Secretary to the Government of Assam, Home and Political Department, Dispur, Assam whereby the petitioner was directed to be taken into custody by detaining him under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

2. The essential facts necessary for the present proceedings are that Page No.# 3/14

the petitioner was implicated in three cases, namely,

(i) Hailakandi P.S. Case No. 509/2020 under Section 21(b) of the NDPS Act, 1985,

(ii) Hailakandi P.S. Case No. 1151/2019 under Section 21(a) of the NDPS Act, 1985 and

(iii) Hailakandi P.S. Case No. 120/2017 under Section 21(b) of NDPS Act, 1985.

3. The petitioner claims that by the Judgment dated 28.08.2018 passed by the Special Judge, Hailakandi in Special (NDPS) (T-1) Case No. 02/2017 relating to Hailakandi P.S. Case No. 120/2017 under Section 21(b) of NDPS Act, 1985, the petitioner was acquitted. Insofar as the other two cases are concerned, namely, (i) Hailakandi P.S. Case No. 509/2020 and (ii) Hailakandi P.S. Case No. 1151/2019, the petitioner is on bail. It is submitted that insofar as Hailakandi P.S. Case No. 1151/2019 is concerned, which corresponds to Special (NDPS) Case No. 11/2019, the charge-sheet had been filed and the matter has proceeded to trial. Insofar as the Hailakandi P.S. Case No. 509/2020 under Section 21(b) of NDPS Act, 1985 corresponding to Special (NDPS) Case No. 5/2020, the charge-sheet has not been filed till the date of filing of the writ petition.

4. The petitioner states that on 08.09.2021, he was taken into custody from his residence by the Officer-in-charge of Hailakandi Police Station without furnishing grounds of detention. Subsequently, after about a week, the communication impugned in the present proceedings dated 17.07.2021 has been served upon him.

5. The learned counsel for the petitioner submits that the impugned Page No.# 4/14

order dated 17.07.2021 pursuant to which the petitioner has been in preventive detention is totally uncalled for and is not based on correct facts and, therefore, the impugned order is an abuse of the process of law and should therefore be interfered with by this Court. It is submitted that a reference is also made in the impugned order that the petitioner has already been acquitted by the Judgment dated 28.08.2018 passed by the learned Special Judge, Hailakandi in Special (NDPS) (T-1) Case No. 02/2017 which corresponds to Hailakandi P.S. Case No. 120/2017. The learned counsel submits that in a case where the trial Court has acquitted the petitioner, the same cannot be a ground on which the State can consider use of its power for preventive detention of the petitioner. The learned counsel for the petitioner reiterates his submissions that the petitioner is already on bail in Special (NDPS) Case No. 11/2019 which correspondence to Hailakandi P.S. Case No. 1151/2019 under Section 21(a) of the NDPS Act, 1985 wherein the charge-sheet has already been filed although the charges are yet to be framed against the petitioner. Insofar as the third case is concerned, no charge-sheet has been filed till the time of filing of the writ petition. The learned counsel for the petitioner submits that impugned order dated 17.07.2021 is ex-facie illegal inasmuch as the same is violative of the provisions of 1988 Act itself as well as the provisions of Article 22 of the Constitution of India. That apart, the same is in conflict that the law laid down by the Apex Court in a catena of decisions rendered in respect of preventive detention.

6. The learned State counsel has referred to the affidavit-in- opposition filed on behalf of the State and submits that all the Page No.# 5/14

mandatory provisions prescribed under the Act has been scrupulously adhered to. Therefore, there is no infraction of any mandatory provisions and therefore, there was no violation of any constitutional rights of the petitioner.

7. The learned Additional senior Government Advocate has urged that the grounds narrated in the order reveal that the preventive detention of the petitioner is necessary because of his involvement in several Narcotic related matters and there is every likelihood that he will continue dealing with such illegal and unauthorized activities under the NDPS Act. In order to prevent such nefarious activities, the petitioner has been detained under the Act of 1988.

8. We have heard the learned counsels for the parties and have also perused the pleadings on record.

9. Under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, the appropriate Government is empowered, if it is satisfied with a view to preventing the person from engaging in Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 and if it is necessary to do, to make an order directing such person to be detained. Section 3 of the Act of 1988 is extracted below:-

"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 Page No.# 6/14

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.

10. Under Section 9 of the said Act, an Advisory Board is required to be constituted for the purposes of rendering an opinion as to whether a person detained by the authority concerned requires further preventive detention. The provisions of Section 9 is also extracted below:-

"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 Page No.# 7/14

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 Page No.# 8/14

may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and 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.

11. The law relating to preventive detention has been elaborately dealt with by the Apex Court in a catena of judgments rendered. In the case of Khaja Bilal Ahmed -Vs- State of Telangana and Ors., reported in (2020) 13 SCC 632, the Apex Court while dealing with a preventive detention made under the Telangana Offenders Act, 1986 has held that:-

"the detention order must be based on a reasonable prognosis of the future Behaviour of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case. A detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it.

12. The Apex Court held that the detaining authority must be satisfied that the person detained is likely to indulge in illegal activities in future and act in a manner prejudicial to the maintenance of public Page No.# 9/14

order. The satisfaction to be arrived at by the detaining authority must not be based on irrelevant or invalid grounds, it must be arrived at on the basis of relevant material and the material which is not stale and has a live link with the satisfaction of the detaining authority. The Apex Court held that the order of the detention may refer to previous criminal antecedence only if they have direct nexus or link with immediate need to be detained individual. While interpreting Section 3 of the said Act, the Apex Court held that in the absence of clear indication of a casual connection, a mere reference to the pending criminal cases cannot account for the requirements of Section 3. It is not open to the detaining authority to simply refer to stale incidence and hold him as a basis of an order of detention. Such stale material will have no bearing on the probability of the detuning of engaging in prejudicial activities in future. The Apex Court with reference to Section 3 of the said Act of 1988 further held that if on receipt of the Advisory Board's report, the Government wants to continue the detention for a further period it has to take a decision to confirm that order and continue the detention, for without such order or decision, the detention would not validly subsist beyond the period of three months. The relevant paragraph of the said judgment is extracted below:-

"The purpose of the Telangana Offenders Act, 1986 is to prevent any person from acting in a manner prejudicial to the maintenance of public order. Section 3 prescribes that the detaining authority must be satisfied that the person to be detained is likely to indulge in illegal activities in the future and act in a manner prejudicial to the maintenance of public order. The satisfaction to be arrived at by the detaining authority must not be based on irrelevant or invalid grounds. It must be arrived at on the basis of relevant material;

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material which is not stale and has a live link with the satisfaction of the detaining authority. The order of detention may refer to the previous criminal antecedents only if they have a direct nexus or link with the immediate need to detain an Individual. If the previous criminal activities of the appellant could indicate his tendency or inclination to act in a manner prejudicial to the maintenance of public order, then it may have a bearing on the subjective satisfaction of the detaining authority. However, in the absence of a clear indication of a causal connection, a mere reference to the pending criminal cases cannot account for the requirements of Section 3. It is not open to the detaining authority to simply refer to stale incidents and hold them as the basis of an order of detention. Such stale material will have no bearing on the probability of the detenu engaging in prejudicial activities in the future". (Para 23)

13. In V. Shantha -Vs- State of Telangana and Ors., reported in (2017) 14 SCC 577, the detenu therein was classified as "goonda" affecting public order because of in adequate yield of chilli seed sold by him and was detained under the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986. The detention order even prevented him from moving for bail. The Apex Court held that such order is a gross abuse of statutory power of preventive detention and the grounds of detention were held to be ex-facie extraneous to the Act. Paragraph 10 of the said Judgment is extract below:-

"10. An order of preventive detention, though based on the subjective satisfaction of the detaining authority, is nonetheless a serious matter, affecting the life and liberty of the citizen under Articles 14, 19, 21 and 22 of the Constitution. The power being statutory in nature, its exercise has to be within the limitations of the statute, and must be Page No.# 11/14

exercised for the purpose the power is conferred. If the power is misused, or abused for collateral purposes, and is based on grounds beyond the statute, takes into consideration extraneous or irrelevant materials, it will stand vitiated as being in colourable exercise of power".

14. A perusal of the provisions of the Act of 1988 as well as the judgments rendered by the Apex Court in respect of preventive detention reveals that the detenu must be furnished with all relevant documents and records which have been found to be the basis of the satisfaction arrived at by the authority for detention of the person under the preventive detention. Secondly, the detenu must be informed of his rights to make his representation before the appropriate authority which could be the State Government or the Central Government or even the Advisory Board at the earliest and in order to enable the detenu to effectively make his representation, the records and the materials and the documents which were before the appropriate authority when it recorded its satisfaction for keeping the detenu under the preventive detention, should also be forwarded along with the order of the detention to the detenu. The third principle is that the mandate of the concerned Act under which the person is kept under preventive detention must be scrupulously followed.

15. Under sub-Section 2 of Section 3 under which the petitioner is detained, it is provided that when an order of detention is made by the State Government or by the Officer empowered by the State Government, the State Government shall within 10(ten) days forward to the Central Government a report in respect of the said order. That apart, Page No.# 12/14

under Section 9 clause (f) of the said Act, it is provided that in every case where the Advisory Board is of the opinion that there are sufficient causes for detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned of such period as it thinks fit. Where the Advisory Board is of the opinion that there is no sufficient cause for detention of the person concerned, the appropriate Government shall revoke the detention order.

16. The mandate of these two sections require firstly the Government to furnish a report to the Central Government where the detenu is detained by the State Government or Officer authorized by the State Government and such report is required to be made within 10(ten) days from the date of detention. The requirement under Section 9(f) of the Act is that where the Advisory Board renders its opinion that there are sufficient grounds for further detention, the detention order is required to be confirmed by the State Government. In the counter affidavit filed, there are no specific pleadings in respect of these two safeguards mandated under the Act under Section 3(2) and Section 9(f) of the Act of 1988. The State authorities have not stated in their counter affidavit as to whether the report as required under Section 3(2) has been sent to the Central Government. Further as required under Section 9(f) of the Act after the opinion of the Advisory Board advise further detention of detenu, the order of detention of the detenu is required to be confirmed by the appropriate authorities. However, no such statement or reference to any such order passed is found to be stated in the counter affidavit. In fact the opinion of the Advisory Board is also not Page No.# 13/14

brought on record through the counter affidavit filed although the learned State counsel has subsequently submitted a copy of the same before the Court during the course of the hearing.

17. The Judgments of the Apex Court have consistently held that procedural safeguards which are provided for in respect of preventive detention, be it under Article 22 of the Constitution of India or under the specific provisions of the Act of 1988 under which the person is detained, will have to be scrupulously followed by the authorities. These procedural safeguards are enacted to prevent misuse and/or abuse of the process of law while exercising the powers made available to the State authorities in respect of the preventive detention. As such, the authorities can direct preventive detention and/or direct further continuance of preventive detention of any detenu subject to fulfillment of the procedural safeguards mandated by law to weed out any possibility of abuse of the process of the law and violation of the rights of the detenu granted under the Constitution of India. Any detention order passed in violation of these provisions will have to be treated as unlawful exercise of the powers by the authorities concerned and, therefore, it will have to be interfered with accordingly.

18. As discussed above, the failure of the Department to send a report as mandated under Section 3(2) to the Central Government within 10(ten) days as well as the mandate of Section 9(f) for confirmation of an order under the Act of 1988 will have to effect of rendering the detention of the petitioner to be in complete violation of the mandate of law prescribed. Since the petitioner's detention is in violation to the Page No.# 14/14

above provisions, the same will have to be held to be ex-facie illegal and in violation of his constitutional rights.

19. Accordingly, the impugned order dated 17.07.2021 issued by the Secretary to the Government of Assam, Home and Political Department, Dispur, Assam is interfered with, set aside and quashed.

20. The petitioner is directed to be released forthwith from the detention made under impugned order dated 17.07.2021 which has been set aside.

21. The writ petition is accordingly allowed and disposed of in terms of the above. No order as to cost.

                              JUDGE                       CHIEF JUSTICE




Comparing Assistant