Punjab-Haryana High Court
Sunaina vs State Of Haryana And Others on 30 April, 2024
No. 2024:PHHC: 060721
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRWP-12490-2023 (O&M)
Reserved on: 24.04.2024
Date of Pronouncement: 30.04.2024
Sunaina .......... Petitioner
Versus
State of Haryana and others .......... Respondents
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present: Mr. Gurinder Singh Goraya, Advocate
for the petitioner.
Mr. Rajiv Sidhu, D.A.G., Haryana.
****
HARKESH MANUJA, J.
By way of present Crl. Writ Petition filed under Article
226/227 of the Constitution of India, petitioner has prayed for
issuance of a writ in the nature of Habeas Corpus for the release of
detenue from the custody of respondent Nos. 1 to 5 and further for
the issuance of writ in the nature of Certiorari to quash the order
dated 20.10.2023 passed by Addl. Chief Secretary, Department of
Home Affairs Haryana (Annexure P-1) being illegal, arbitrary, unjust
and violative of Article 19 and 21 of the Constitution of India..
2. Briefly stated, facts of the case are that a proposal was
sent by respondent No. 4 to respondent No. 2 - Director General of
Police, Haryana vide letter dated 31.08.2023 under Section 3 of the
"Prevention of illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988" (hereinafter referred as 1988 Act) for
detention of detenue - Smt. Balwinder Kaur @ Bindu wife of Amarjit
CRWP No. 12490-2023 (O&M)
Singh C/o Daler Singh resident of Gali no.11, Saraswati Colony,
Khadi Markanda, Police Station Sadar Thanesar District Kurukshetra
Haryana. Subsequently, on 08.09.2023, screening committee
consisting of Chief of Narcotic Control Bureau, CID representative,
State Crime Bureau representative and the District Attorney, Police
Headquarters, Haryana after examining the relevant aspects of the
case also recommended the detention of Mrs. Balwinder Kaur @
Bindu.
2.1 Accordingly, the final proposal was sent on 10.10.2023 by
respondent No 2 to respondent No 1 along with the file, which
included letter from the SHO Kurukshetra, copies of FIR, seizer
Memo, confession memo, inventory report, F.S.L reports, statements
of witnesses and copies of bail orders passed by the concerned
courts etc. In view of proposal dated 10.10.2023, respondent no.1
passed the detention order dated 20.10.2023 which was issued on
30.10.2023 to detain the mother of the petitioner-detenue. On
30.10.2023, detenue was taken into custody and since then she is
detained in District Jail, Kurukshetra. It is the detention order dated
20.10.2023 which has been impugned by way of present writ petition.
3. Primary basis for issuing detention order against the
mother of the petitioner was her continuous and repeated
involvement in sale of Narcotics to the people of her locality which
more than prima facie established from the four FIRs against her,
details of which are given below:-
i) FIR No. 168 dated 12.02.2020 u/s 21/61/85 of NDPS Act,
registered at PS City, Thanesar, wherein, petitioner was
CRWP No. 12490-2023 (O&M)
arrested on 15.05.2020 on account of recovery of 29.05 gram of
Smack/Heroin and was released on bail on 23.07.2020.
ii) FIR No. 247 dated 14.05.2020 u/s 21/61/85 of NDPS Act,
registered at PS City, Thanesar, wherein, petitioner was
arrested on 14.05.2020 on account of recovery of 8.7 gram of
Smack/Heroin and was released on bail on 17.11.2020.
iii) FIR No. 39 dated 19.01.2022 u/s 21/61/85 of NDPS Act,
registered at PS City, Thanesar, wherein, petitioner was
arrested on 19.01.2022 on account of recovery of 9 gram of
Smack/Heroin and was released on bail on 24.02.2020.
iv) FIR No. 626 dated 03.10.2022 u/s 21/61/85 of NDPS Act,
registered at PS City, Thanesar, wherein, petitioner was
arrested on 03.10.2022 on account of recovery of 10 gram of
Smack/Heroin and was released on bail on 16.11.2022.
4. Learned counsel for the petitioner submitted that though
four cases of NDPS Act were registered against detenue/Balwinder
Kaur @ Bindu but all were false and she was not convicted in any
case. He further submitted that in all cases trial was still pending and
the detenue was on bail, therefore, the detention order was invalid
and illegal.
5. On the other hand, learned State Counsel submitted that
detenue was habitual of committing crime and was kingpin of the
chain of supplying the drugs in her area and to break the chain of
smuggling of drugs, the accused, namely Balwinder Kaur alias Bindu
was detained as per order dated 20/30.10.2023 passed by the
competent authority i.e. Additional Chief Secretary Government
Haryana. It was also submitted that detenue/ mother of the petitioner
was detained in District Jail Kurukshetra in compliance of order dated
30.10.2023 and intimation was given to her family members and copy
CRWP No. 12490-2023 (O&M)
of order dated 30.10.2023 was supplied to them as per law, which
was even responded to by them through representation dated
18.12.2023.
5.1 It was also argued by learned State counsel that the
present petition was not maintainable as per law because the
appeal/representation filed on behalf of detenue already stood
dismissed by the Additional Chief Secretary (ACS), Home
Department Haryana vide order dated 03.01.2024. He further
submitted that on 04.01.2024, detenue was produced through Video
Conference before the Advisory Board Human Rights, Chandigarh
and on the basis of its report, the ACS Home issued the order dated
16.01.2024 for detaining the detenue - mother of petitioner for eleven
months. In view of these further developments, learned State Counsel
submitted that once the detention order was affirmed by competent
authority on the basis of recommendations received from the advisory
board, only remedy available to the petitioner was to challenge the
order dated 16.01.2024 before this Court under civil writ jurisdiction
and writ of habeas-corpus was not maintainable at this stage.
6. Ld. Counsel for the petitioner, despite being made aware
about these developments insisted that the writ of habeas-corpus was
maintainable as the detention order dated 20/30.10.2023 was ex-
facie illegal and void ab initio, and therefore, was liable to be set
aside. In support of his contentions, he also supplied synopsis and
placed reliance upon the following judgments:
i. "Lahu Shrirang Gatkal Vs. State of Maharashtra", reported
as 2017 (2) Law Herald (SC) 1576
CRWP No. 12490-2023 (O&M)
ii. "Sushanta Kumar Banik Vs. State of Tripura & Ors",
reported as 2022 (4) Law Herald (SC) 2882
iii. "State of Manipur & Ors. Vs. Buyamayum Abdul Hanan @
Anand", reported as 2022 (4) Law Herald (SC) 3185
iv. "Mallada K Sri Ram Vs. State of Telangana & Ors.", reported
as 2022 (3) Law Herald (SC) 1977
v. "Mondira Das, D/o. Late Jharu Das And Anr. Versus The
Union Of India, Through The Secretary To The Govt. Of
India And Ors", reported as 2023 4 GauLT 422; 2023 0
Supreme (Gau) 545
7. After hearing learned counsel for the parties and going
through the paper-book of the case, I do not find substance in the
submissions made on behalf of the petitioner.
8. A Division Bench of Karnataka High Court in "Smt. Alisha
v. Under Secretary to the Government Home Administration
Department", bearing case number WPHC No. 100008 of 2023,
after discussing catena of judgments of the Hon'ble Apex Court, held
that once confirmation order was passed after receiving the
recommendation from the advisory board, a writ petition in the nature
of habeas corpus was not maintainable. Relevant paras from this
judgment are reproduced hereunder:-
"7. Having regard to these settled position, we find that in the
present case a prayer is made seeking writ of certiorari to
quash the order dated 02.03.2023 passed by the State
Government confirming the order of detention passed by the
competent authority on 30.01.2023. That being the position,
since the petitioner is challenging the detention order and the
confirmation order, which is passed under the Bootleggers,
Drugs Offenders, Gamblers, Goonda, Immoral Traffic
Offenders and Slum Grabbers Act, 1985, a writ petition in the
nature of habeas corpus is not maintainable. No doubt the
petitioner is entitled to challenge the order of detention or
CRWP No. 12490-2023 (O&M)
order of confirmation, but that will be a writ petition seeking a
writ of certiorari. Liberty is accordingly granted.
8. For the reasons stated above, we uphold the objections
raised at the hands of the respondent-State through learned
AAG. The writ petition (habeas corpus) stands dismissed as
not maintainable."
9. It is not in dispute that vide order dated 16.01.2024,
competent authority on the basis of recommendations received by the
advisory board confirmed the detention order dated 20.10.2023.
Relevant part of confirmation order is reproduced here under:
"*** The Advisory Board, after providing an opportunity of
hearing to the detainee Smt. Balwinder Kaur @ Bindu through
video conference on 04.01.2024, submitted Its report dated
08.01.2024, which was received vide letter dated 09.01.2024.
The Advisory Board, in its report dated 09.01.2024 has
concluded that sufficient cause is made out for the preventive
detention of Smt. Balwinder Kaur @ Bindu.
And now, therefore, In exercise of the powers conferred by
section 9 (f) read with section 11 of the Act, 1988, the
detention order of Smt. Balwinder Kaur @ Bindu issued vide
Endst. No. 5/43/2023-2HC dated 30.10.2023 is hereby
confirmed and it is further directed that the period of detention
of Smt. Balwinder Kaur @ Bindu wife of Amarjit Singh C/o
Daler Singh resident of Gall No.11, Saraswati Colony, Kheri
Markanda, Police Station Sadar Thanesar, Kurukshetra,
Haryana in pursuance of the aforesald detention order shall be
11 (eleven) months from the date of her detention i.e.
30.10.2023. ***"
10. In view of these further developments, there is substance
in the argument made by the ld. State Counsel that petition is not
maintainable as petitioner is also required to challenge the
confirmation order dated 16.01.2024 passed by the competent
authority. Once the detention order dated 20.10.2023 has been
confirmed by the competent authority after receiving the
recommendations from the advisory board, and that too after
affording the detenue an opportunity to represent herself before the
CRWP No. 12490-2023 (O&M)
advisory Board, the obligation on the petitioner in present
circumstances is higher to show that the detention order is ex-facie
illegal or substantial procedural requirements have not been complied
with. However, neither any illegality has been pointed out to this effect
by the learned counsel for the petitioner nor any material procedural
irregularity has been brought to the notice of this Court. Moreover, no
merit can be found in the submission that the detenue has not been
convicted so far in either of the trials being faced by her. The object of
preventive detention is not to punish an individual for having done
something illegal but to intercept him before he does it and to prevent
him from doing it. The justification of such detention is based on
reasonable probability of the impending commission of unlawful and
prejudicial act and not the conviction.
11. Even if, the above discussed technicalities are given a go
by yet, while appreciating the comparative rights of the detenue and
the public in general at large, not only the detenue is facing trial in
four cases under NDPS Act, she has also remained in prison for
various periods in these cases. Apart from the involvement of the
detenue, involvement of his relatives in similar cases has also not
been disputed by the learned counsel for the petitioner. The FIRs
registered against his son Gagandeep @ Aman s/o Daler Singh are
as under:-
I).FIR No. 13 dated 06-01-2019 u/s 21-61-85 NDPS Act at PS City
Thanesar district Kurukshetra.
II). FIR, No. 168 dated 12-02-2020 u/s 21-61-85 NDPS Act at PS
City Thanesar district Kurukshetra
CRWP No. 12490-2023 (O&M)
III). FIR No. 308 dated 14-07-2021 u/s 21-61-85 NDPS Act at PS
Sadar Thanesar district Kurukshetra
IV), FIR No. 361 dated 24-11-2021 u/s 21-61-85 NDPS Act at PS
City Thanesar district Kurukshetra
V). FIR No. 578 dated 25-11-2021 u/s 21-61-85 NDPS Act at PS
Sadar Thanesar District Kurukshetra
Similarly, FIRs registered against Daler Singh, with whom
the detenue allegedly resides and who is father of Gagandeep, are as
under:-
I) FIR No. 1135 dated 30-12-2017 u/s 21-61-85 NDPS Act at
PS City Thanesar district Kurukshetra
II) That FIR No. 141 dated 08-04-2021 u/s 21-61-85 NDPS Act
at PS Sadar Thanesar district Kurukshetra
III)That FIR No. 308 dated 14-07-2021 u/s 21-61-85 NDPS Act
at PS Sadar Thanesar district Kurukshetra
IV)That FIR No. 532 dated 19-08-2022 u/s 21-61-85 NDPS Act
at PS Sadar Thanesar district Kurukshetra
12. In view of the above, merely on account of the fact that
detenue has not been convicted in any of the cases yet, it cannot be
stated that the prevention order is without any reasonable basis and
devoid of any merit. Judgments cited by the Ld. Counsel for the
petitioner are not applicable in the facts and circumstances of the
present case. It is not the case of the petitioner that there has been
any concealment of material facts by the authority. Proposal for
detention in this case was made on 31.08.2023 and after being
forwarded by respective authorities, detention order was finally
passed on 20.10 2023, i.e. approximately within 1 ½ months, which
cannot be stated to be on higher side. Rest of the prepositions held in
CRWP No. 12490-2023 (O&M)
the judgments relied upon by the learned counsel for the petitioner
are not applicable in the factual position of the present case. The
judgment in Lahu Shrirang Gatkal's case (supra) relied upon by
learned counsel for the petitioner to contend that no specific period
was mentioned in the detention order is also not applicable in view of
the judgment of larger Bench of the Hon'ble Apex Court in "T. Devaki
vs. Government of Tamil Nadu & Ors.", reported as (1990) 2 SCC
456, wherein, it was held that if the Act does not require the detaining
authority to specify the period for which a detenu is required to be
detained, order of detention is not rendered invalid or illegal in the
absence of such specification. It is relevant to note here that above
mentioned judgment has been followed by the Hon'ble Apex Court
recently in "Pesala Nookaraju vs The Government Of Andhra
Pradesh & Ors.", reported as 2023 INSC 734 as well.
13. Resultantly, present petition is dismissed being devoid of
any merit.
14. Pending miscellaneous application(s), if any, shall also
stand disposed of.
April 30, 2024 ( HARKESH MANUJA )
sanjay JUDGE
Whether Speaking/reasoned Yes/No
Whether Reportable Yes/No
