Gauhati High Court
Babul Ahmed vs The Union Of India And 5 Ors on 23 February, 2023
Page No.# 1/6
GAHC010127642022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : W.P.(Crl.)/25/2022
BABUL AHMED
S/O MAINUDDIN AHMED, VILL-DHANBANDHA, P.S. AND DIST-BARPETA
(ASSAM)
VERSUS
THE UNION OF INDIA AND 5 ORS
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA,
MINISTRY OF HOME, NEW DELHI-1
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
HOME AND POLITICAL DEPARTMENT
DISPUR
GUWAHATI-781006
3:THE SECRETARY TO THE GOVERNMENT OF ASSAM
HOME AND POLITICAL DEPARTMENT
DISPUR
GUWAHATI-781006
4:THE DIRECTOR GENERAL OF POLICE
ASSAM
ULUBARI
GUWAHATI-781005
5:THE SUPERINTENDENT OF POLICE
BARPETA
P.O. AND DIST-BARPETA
ASSAM
Page No.# 2/6
6:THE ADVISORY BOARD
PITNDPS ACT
1988
C/O THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
ASSAM
HOME AND POLITICAL DEPARTMENT
DISPUR
GUWAHATI-781006
7:THE DEPUTY SECRETARY (PITNDPS)
MINISTRY OF FINANCE
DEPARTMENT OF REVENUE
CHURCH ROAD HUTMENTS
NEW DELHI-11000
Advocate for the Petitioner : MR. R ALI
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
HONOURABLE MR. JUSTICE ROBIN PHUKAN
Date : 23-02-2023
JUDGMENT & ORDER (ORAL)
(A.M. Bujor Barua, J)
Heard Mr. R Ali, learned counsel for the petitioner, Mr. UK Goswami, learned
CGC for the respondents No. 1 and 7 being the Union of India and Mr. D Nath,
learned senior Government Advocate for the respondents No. 2, 3, 4 and 5
being the authorities in the Home and Political Department of the Government
of Assam. The respondent No. 6 stands deleted from the array of respondents.
2. The petitioner Babul Ahmed, as per the order dated 16.03.2022 of the
Commissioner and Secretary to the Government of Assam in the Home and
Political Department on being satisfied that Babul Ahmed has been acting in a
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manner prejudicial to the provisions under the Narcotic Drugs and Psychotropic
Substances Act, 1985 (in short Act of 1985) by continuously indulging in illicit
trade in narcotic drugs even after his arrest on several times, was detained
under section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988 (in short PITNDPS Act 1988). Being
aggrieved by the order of preventive detention dated 16.03.2022, the petitioner
has instituted this writ petition.
3. It is needless to say that a preventive detention even under the PITNDPS
Act, 1988 is also a preventive detention and therefore, all the rules and
procedure that are required to be followed in order to place a person under
preventive detention would also be applicable in case of a preventive detention
under the PITNDPS Act, 1988.
4. Amongst others, in the writ petition, the petitioner states that the
representation to the Commissioner and Secretary to the Government of Assam
in the Home and Political Department was made on 18.04.2022. The records
reveal that the said representation was received by the Commissioner and
Secretary to the Government of Assam in the Home and Political Department on
25.04.2022. But the disposal of the representation was made by the order dated
20.07.2022 as per the order of the Commissioner and Secretary. Accordingly, the
contention is raised that the delay in disposing the representation is beyond the
permissible limit and because of such delay, the detention is vitiated. The
petitioner raises another contention that the petitioner detenu was not informed
that he has a legal right to make a representation to four of the authorities,
namely, the detaining authority itself, the State Government, the Advisory Board
as well as to the authorities under the Central Government.
5. It is a settled proposition of law that in case of a preventive detention,
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there is an inherent legal right bestowed on the detenu to be informed by the
detaining authority that he has a legal right to make representation to all the
aforesaid four authorities.
6. But, without going into the second contention raised, when we take note
of the first contention, the relevant dates, as indicated above, to be that the
representation was made on 18.04.2022 to the Commissioner and Secretary to
the Government of Assam in the Home and Political Department, the
representation was received by the Commissioner and Secretary on 25.04.2022,
but the same was disposed of by an order dated 20.07.2022. In other words,
the disposal of the representation made on 18.04.2022 was made after a period
of three months.
7. A stand is taken by the respondents in the Home and Political Department
to the Government of Assam that upon receipt of the representation, the
Commissioner and Secretary had called for a report from the Superintendent of
Police, Barpeta and it took more than one month for the report to be received
from the Superintendent of Police and that the report/comment of the
Superintendent of Police was received on 27.05.2022. But, in the meantime, the
entire records were required to be sent to the Advisory Board for its
consideration and the records were sent on 03.06.2022 and it was received back
from the Advisory Board after 14.06.2022.
8. Even if the period for which the records were required to be sent to the
Advisory Board is taken out i.e. from 03.06.2022 to a few days subsequent to
14.06.2022, still a period of more than 2 ½ months remained unexplained other
than an explanation that the report of the Superintendent of Police, Barpeta was
called for and it took more than a month to receive the same.
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9. The law in this respect has been settled by the Hon'ble Supreme Court in
its pronouncement in Rashid Kapadia -vs- Medha Gadgil and others, reported in
(2012) 11 SCC 745, wherein in paragraph 13 it had been provided as extracted:-
"13. It is well settled that the right of a person, who is preventively detained, to make
a representation and have it considered by the authority concerned as expeditiously as
possible, is a constitutional right under Article 22(5). Any unreasonable and
unexplainable delay in considering the representation is held to be fatal to the
continued detention of the detenu. The proposition is too well settled in a long line of
decisions of this Court. We do not think it necessary to examine the authorities on this
aspect, except to take note of a couple of judgments where the principle is discussed
in detail. They are: Mohinuddin v. District Magistrate, Beed [(1987) 4 SCC 58 : 1987
SCC (Cri) 674] and Harshala Santosh Patil v. State of Maharashtra [(2006) 12 SCC
211 : (2007) 1 SCC (Cri) 680] ."
10. A reading of the afore-extracted provisions of the Hon'ble Supreme Court
in Rashid Kapadia (supra) makes it discernible that when a detenu under
preventive detention makes a representation, it has to be considered by the
authority concerned as expeditiously as possible as it is a constitutional right
under Article 22(5) of the Constitution of India and any unreasonable and
unacceptable delay in considering the representation would have to be held to
be fatal to the continued detention of the detenu.
11. In the matter that was before the Hon'ble Supreme Court in Rashid
Kapadia (supra), there the authorities took about one month to dispose of the
representation of the detenu concerned and even the period of one month
taken by the authority to dispose of the representation was viewed by the
Hon'ble Supreme Court to be beyond the expeditious disposal as required in
case of a preventive detention.
12. In the instant case, we have noticed that even if we take out the period
for which the records were sent to the Advisory Board, the detaining authority
took more than 2 ½ months to dispose of the representation and the only
explanation given is that a report was called from the Superintendent of Police,
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Barpeta which took more than one month. Even if the report took more than
one month, still a balance of 1 ½ months remained unexplained for the delay.
13. By following the proposition laid down by the Hon'ble Supreme Court in
Rashid Kapdia (supra), the reason set-forth for the delay in disposing the
representation by almost a period of 2 ½ months as indicated above is found to
be unacceptable in law.
14. Accordingly, the order of detention dated 16.03.2022 against the detenu
writ petitioner Babul Ahmed is set aside and if the detenu is not required under
any other law for any other purpose, the detenu shall be released forthwith.
The writ petition is allowed to the extent as indicated above.
JUDGE JUDGE
Comparing Assistant
