Tripura High Court

Md. Sajjat Ali vs The State Of Tripura Represented ... on 2 August, 2022

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                                 HIGH COURT OF TRIPURA
                                       AGARTALA
                                    WP(C)(HC)04 of 2022
                  Md. SAJJAT ALI, S/O- Md. Tayub Ali, resident of Safrikandi,
                  Ward No. 06, PS. Irani, Dist.- Unakoti Tripura,
                                                                -----Petitioner(s)
                  on behalf of
                  Md. TAYUB ALI, S/o. - Late Ibrahim Ali, resident of Safrikandi,
                  Ward No. 06, PS- Irani, Dist.- Unakoti Tripura.
                                                             -------Detenue(s)
                                                Versus

                  1.THE STATE OF TRIPURA represented by the Secretary to
                  the Government of Tripura, Home Department, having office at
                  New Secretariat Complex, PO. Khejurbagan, PS. NCC, Sub-
                  Division- Agartala, District- West Tripura, Pin- 799010.

                  2.THE SECRETARY, Department of Home, Government of
                  Tripura, New Secretariat Complex, PO. Khejurbagan, PS. NCC,
                  Sub-Division- Agartala, District- West Tripura, Pin. 799010.

                  3.THE DIRECTOR GENERAL OF POLICE,               Tripura,   having
                  office at Police Head Quarters, Fire Brigade Chowmohani, PO-
                  Agartala, PS-West Agartala, Sub-Division- Agartala, District-
                  West Tripura, Pin- 799001.

                  4.THE CHAIRMAN, Advisory Board, Prevention of Illicit
                  Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988,
                  Represented by the Secretary, Advisory Board, State of Tripura,
                  Agartala, Tripura (West).

                  5.THE UNION OF INDIA, represented by the Secretary,
                  Department of Home, Government of India, Jai Singh Marg,
                  Connaught Place, New Delhi- 110001.
                                                         --------Respondent(s)


WP(C)(HC)4/2022
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                                                    BEFORE

                    HON'BLE THE CHIEF JUSTICE MR.INDRAJIT MAHANTY
                          HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY

                  For the Appellant(s)         :        Mr. Subrata Sarkar, Adv.
                                                        Mr. K.D.Singh, Adv.
                                                        Mr. Daulat Ray, Adv.
                                                        Ms. Piyali Chakraborty, Adv.
                                                        Ms. N Debbarma, Adv.
                                                        Mr. Dhiman gope, Adv.
                                                        Ms .S Banik Deb, Adv

                  For the Respondent(s)        :        ASG
                                                        Mr. Ratan Datta, PP
                                                        Mr. S.Debnath, Addl. PP

                  Date of hearing           :           19.07.2022
                  Date of delivery of       :           02.08.2022
                  Judgment & Order
                  Whether fit for reporting
                                                       Yes No
                                                        
                                                   JUDGMENT

(Per S.G.Chattopadhyay), J

[1] The detenue herein is stated to be a small

businessman against whom 03 cases under various

provisions of the Narcotic Drugs and Psychotropic

Substances Act, 1985 have been registered. By the

impugned detention order issued by the Secretary to the

Home Department, Government of Tripura on 8.10.2021

under order No.F.15(9)/PD/2021(P-IX)/3032, he has been

detained under sub-section(1) of Section 3 of the

Prevention of Illicit Traffic in Narcotic Drugs and

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Psychotropic Substances Act,1988 (PIT NDPS Act

hereunder). The detenue has challenged the said detention

order seeking remedy under Article 226 of the

Constitution.

[2] We elaborate on the facts hereunder as follows:

It is the case of the detenue that he used to

carry on Agar business for maintaining his family. Even

though he has no link with the alleged drug trafficking,

police has implicated him in as many as 3 cases which are

as under:

(i)Irani P.S Case No. 2021 IRN 010 registered under Sections 21(c), 22(c), 25 and 29 NDPS Act along with other sections of IPC.

(ii)Irani P.S. Case No. 057 of 2018 dated 19.09.2018 which has been registered under Sections 21(b) and 29 of the NDPS Act.

registered for offence punishable under Sections 22(b) and 29 NDPS Act.

[3] According to the detenue, in all these 03 cases

investigation has been complete and the investigating

agency has laid charge sheets in which the detenue is one

of the accused. The detaining authority is aware of the fact

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that detenue has been released on bail from the concerned

court both in Irani P.S case No.2021 IRN 010 and Irani

P.S. Case No.057 of 2018 and he has been intentionally

shown as an absconding accused in Dharmanagar P.S.

case No.2020 DMN 113, to prevent his release on bail.

But, at no point of investigation of the case he left his

home. It is his case that intentionally he was not shown

arrested in the Dharmanagar P.S case to prevent his

release on bail. Since the Dharmanagar P.S. case was

registered before registration of Irani P.S. case No.2021

IRN 010 and detenue was in custody over a considerable

period of time before he was released on bail in Irani P.S.

case No. 2021 IRN 010, he could have been shown

arrested in the Dharmanagar case. Without arresting him

in Dharmanagar P.S. case, police illegally arrested him and

detained him in preventive detention pursuant to the

detention order dated 08.10.2021.

[4] The detenue has challenged the order mainly on

the following grounds:

(i)The detaining authority has issued the impugned

detention order without application of mind.

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(ii)The detaining authority relied on the report of the

Director General of Police (DGP) to arrive at a subjective

satisfaction about the need of the detention order. But

copy of the report of DGP was not served on the petitioner.

As a result of which the detenue could not submit an

effective representation.

(iii)The detaining authority did not appreciate the fact that

in all the 03 cases in which petitioner is made an accused,

investigation is complete and charge sheet has been laid.

Even the petitioner who was arrested during the

investigation got bail in 2 of those cases. The detaining

authority neither referred and discussed the bail orders in

the detention order nor explained therein the need of

preventive detention of the petitioner after he was

released on bail.

[5] The state of Tripura represented by the

Secretary in the Home Department , the Secretary to the

Government of Tripura in the Revenue Department and the

Director General of Police have been arrayed as

respondents 1,2 and 3 respectively. Respondent 4 is the

Chairman, Advisory Board and Respondent No.5 is the

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Union of India represented by its Secretary in the Home

Department. Among them respondents 1, 2 and 3 have

filed a joint affidavit and respondent No.5 has filed

separate affidavit in reply. No reply has been filed by

respondent No.4.

[6] In their reply, respondents 1, 2 and 3 have

categorically asserted that accused was carrying out drug

smuggling over a period of time along with his associates.

In all the 03 cases police discovered his link and after

investigation laid charge sheet against him. It has been

stated by the respondents that the preventive detention of

the petitioner was the most effective means to prevent the

petitioner from committing further offence. Accordingly,

the preventive detention order was issued. Copies of all

documents on the basis of which the order was issued

were supplied to the petitioner. He acknowledged the

receipt of those documents. He also submitted a

representation against his detention which was rejected by

the detaining authority after due consideration. After

arrest the detenue was also forwarded to the Advisory

Board. Advisory Board provided opportunity of personal

hearing to the detenue and on the basis of the opinion

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received from the Advisory Board, the detaining authority

confirmed his detention. It has been asserted by the state

respondents that all legal formalities have been

meticulously observed by the detaining authority and there

is no ground to set aside the detention order.

[7] Respondent No.5 in the affidavit in reply has

stated that copy of the detention order has been duly

forwarded by the detaining authority to the Ministry of

Home Affairs, Union of India within the stipulated time. It

has been asserted in the reply that the petitioner is not

entitled to any relief in this case.

[8] Heard Mr. S.Sarkar, learned Sr. Advocate

appearing for the detenue along with Mr. K. D.Sing,

learned Adv. Also heard Mr.S.Debnath, learned Addl. PP.

representing the prosecution.

[9] It is mainly contended on behalf of the detenue

that report of the DGP on the basis of which the detaining

authority issued the preventive detention order was not

supplied to the detenue as a result of which he was

seriously prejudiced in making an effective representation

against the detention order. This apart, the detaining

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authority did not apply its mind for issuing preventive

detention order against the detenue because no reason

has been assigned in the detention order as to why the

detaining authority felt that his preventive detention was

necessary even after he was released on bail in the

pending cases.

[10] Mr.Sarkar, learned Sr. Advocate has also

contended that even there is no reference to the bail

orders wherein petitioner was released on bail in 02 cases

and absence of reference to those bail orders indicate non

application of mind of the detaining authority. Counsel,

therefore, urges the court to set aside the detention order

and release the petitioner from jail.

[11] Mr.S.Debnath, learned Addl. PP on the other

hand has argued that detenue is a repeated offender

against whom as many as 3 cases for violation of various

provisions of the NDPS Act are pending. In the

Dharmanagar P.S case he could not be arrested because

he absconded to avoid police arrest. In view of his

antecedents and his repeated involvement in NDPS cases,

the preventive detention order was issued. Counsel

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contends that if released, there is every possibility that the

detenue would again commit the offence under the NDPS

Act. Counsel, therefore, urges the court to reject his

application.

[12] We have examined the contentions raised by

the detenue about the propriety of the detention order. As

stated, one of the challenges of the detenue is that the

report of DGP on the basis of which the detention order

was issued was not served on him which prevented him

from submitting an effective representation against the

detention order.

[13] In sub-section (3) of Section 3 of PIT NDPS Act,

it is provided that for the purpose of clause (5) of Article

22 of the Constitution, the communication, to a person

detained in pursuance of a detention order, of 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 date of detention. Now, the question which falls

for our consideration is whether the detaining authority

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communicated the grounds of detention and served the

documents which were considered by it for forming the

opinion on detention to the detune within the stipulated

time. For this purpose, the State counsel pursuant to our

direction has produced the concerned file of the Home

Department before us.

[14] It would appear from the concerned file that

proposal for detention of the petitioner under Section 3(1)

of the PIT NDPS Act was initiated by the officer in charge

of Irani Police Station (Annexure-F to the reply) of the

state respondents. The Officer in charge of Irani Police

Station in his report submitted to the superintendent of

police stated that the detenue engaged himself in

smuggling of NDPS across the border and he thereby

assumed huge property disproportionate to his known

source of income. In the said proposal NDPS cases pending

against the detenue were also mentioned along with the

details of the seizure of the contraband in each of those

cases and it was stated by the Officer in charge of the Irani

police station that even though the detenue was implicated

in several cases, it had no impact on his activities and he

was still carrying out smuggling in NDPS. Therefore, his WP(C)(HC)4/2022

preventive detention was felt necessary with a view to

preventing him from carrying out such illegal activities.

The said proposal was served on the detenue along with

the detention order and the grounds thereof and the

detenue acknowledged the receipt of the documents by

putting his signature on the said document (Annexure-F).

He also signed letter of acknowledgment of the receipt of

the detention order and the grounds of detention.

[15] Though the detaining authority has received

acknowledgment from the detenue to the effect that the

detention order and all other relevant documents were

served on him, there is no separate proof of service of the

report to the DGP on the detenue. However, as stated

above, the proposal was initiated by the officer in charge

of the Irani Police station who submitted a detailed report

to the jurisdictional Superintendent of police for preventive

detention of the petitioner which was duly served on the

detenue and the detenue acknowledged the receipt thereof

by putting his signature on the document (Annexure-F).

[16] It is not denied by the detenue that he has

been involved in 03 NDPS cases. His contention is that

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except in Dharmanagar P.S. case, bail has been granted in

the other 02 cases and therefore, his preventive detention

is totally unjustified.

[17] Even though it has been submitted on behalf of

the detenue that for want of the report of the DGP, he

could not submit an effective representation against the

detention order, but infact, in his representation dated

08.12.2021, he stated that he was falsely implicated in all

the 03 NDPS cases. It was his further contention that he

was the only earning member of his family and he used to

maintain his family with his earning from Agar business.

[18] Detenue was also produced before the State

Advisory Board. State Advisory Board recorded his

statement. In his statement before the Advisory Board he

categorically stated that he was served with the copies of

the documents after taking his signature on those

documents. He did not ventilate any grievance before the

Advisory Board that the documents which were served on

him were insufficient to write a representation. The

Advisory Board also viewed that all documents on the

basis of which the decision was taken in respect of his

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preventive detention were served on the detenue. The

relevant extract of the report dated 10.01.2022 of the

Advisory Board is as under:

"7. It appears that on 01.11.2021, the detention order, the grounds of detention with copies of the documents on the basis of which the decision was taken in respect of the preventive detention, were served on the detenue, wherein it is seen that O/c OF Irani P.S on 01.11.2021 explained the grounds of detention, handed over the relevant papers and also intimated him about his right to make representation against the order of detention to the appropriate authority"

[19] The settled law is that copies of all documents

and the report which were instrumental in forming the

grounds of detention are required to be supplied to the

detenue and non supply of those documents would

substantially prejudice the detenue. As discussed, the

detenue never raised a plea in his written representation

that he was not served any of the documents which were

relied upon by the detaining authority for issuing the

detention order. Rather, the State Advisory Board was of

the view that all documents on the basis of which the

detaining authority formed its opinion were supplied to the

detenue. Accordingly, the State Advisory Board viewed

that the detaining authority had sufficient reasons in

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passing the order of detention. On the basis of the said

report dated 10.01.2022, the detaining authority by an

order dated 19.01.2022 confirmed the detention order and

held that the petitioner would be in detention for a period

of 01 year from the date of his detention i.e. from

08.10.2021. The representation which was filed by the

detenue was also rejected by the detaining authority by an

order dated 30.12.2021.

[20] In view of what has been stated above, we are

of the considered view that the detenue could not make

out a case that due to non supply of any document he was

prevented from making an effective representation against

the detention order. Rather, it is clear that the detention

order along with the grounds of detention and all other

relevant documents were supplied to the detenue within

the stipulated period. Having received the detention order

along with the documents, detenue submitted a

representation in detail and nowhere, in his representation

he stated that he was prevented from filing an effective

representation for non supply of any document. He was

also produced before the State Advisory Board and the

State Advisory Board examined him and recorded his WP(C)(HC)4/2022

statement. He did not also make any complaint to the

State Advisory Board about the non supply of any essential

document. He stated before the State Advisory Board that

he was innocent and he was falsely implicated in 03 NDPS

cases. The Advisory Board having considered his

statement and the documents, adduced by the detaining

authority, was of the view that his preventive detention

was justified and on the basis of the report of the Advisory

Board, the detaining authority confirmed his detention for

a period of 01 year. As stated, the detaining authority also

rejected his representation by a speaking order.

[21] The preamble to the PIT NDPS Act, 1988 reads

as under:

"An Act to provide for detention in certain cases for the purpose of preventing illicit traffic in narcotic drugs and psychotropic substances and for matters connected therewith

Whereas illicit traffic in narcotic drugs and psychotropic substances poses a serious threat to the health and welfare of the people and the activities of persons engaged in such illicit traffic have a deleterious effect on the national economy;

And whereas having regard to the persons by whom and the manner in which such activities are organised and carried on, and having regard to the fact that in certain areas which are highly vulnerable to the illicit traffic in narcotic drugs and psychotropic substances, such activities of a considerable magnitude are clandestinely organised and carried on, it is necessary for the effective prevention of such

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activities to provide for detention of persons concerned in any manner therewith."

[22] In the given case detenue is stated to be a

repeated offender against whom 03 NDPS cases have

already been registered and in one of those cases huge

quantity of contraband is stated to have been recovered

from his possession. In these circumstances, his

preventive detention cannot be said to have been

unjustified. As discussed, the detenue was served with the

detention order along with the document containing the

grounds of detention and the relevant documents on the

basis of which the detention order was issued. Detenue