Tripura High Court

Md. Nejam Uddin Son Of Late Abdul ... vs The State Of Tripura Represented ... on 29 August, 2022

                HIGH COURT OF TRIPURA
                      AGARTALA
                    WP(C)(HC)No.02 of 2022

Md. Nejam Uddin son of late Abdul Mannaf, resident of South
Manik Bhandar, P.S. Kamalpur, District- Dhalai, Tripura
                                     -----Petitioner(s)
                         Versus

1.The State of Tripura represented by the Secretary,
Department of Home, Government of Tripura, New Secretariat
Building, P.O. Kunjaban, P.S. NCC, Dist- Wst Tripura

2.The Secretary, Department of Home, Government of
Tripura, New Secretariat Building, P.O. Kunjaban P.S. New
Capital Complex, Dist- West Tripura

3.The Director General of Police, West Tripura

4.The Union of India, represented by the Secretary,
Department of Home, Government of India, Jai Singh Marg,
Connaught Palace, New Delhi-110001

                                           -----Respondent(s)

                          BEFORE
 HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY

       HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY

For Petitioner(s)         :   Mr. P.K.Biswas, Sr. Advocate.
                              Mr. P.Mamjumder, Adv.
                              Ms. S.Debbarma, Adv.

For Respondent(s)         :   Mr. B.Majumder, ASG.
                              Mr. S.Ghosh, Addl. PP.

Date of hearing           :   17.08.2022
Date of Delivery of       :   29.08.2022
Judgment/Order
Whether fit for reporting :   YES / NO
                                                           2




                                               JUDGMENT

(Per S.G.Chattopadhyay, J)

[1] The petitioner, herein after referred to as the

detenue, has been detained pursuant to order No.F.15

(9)-PD / 2021(P-xiv) /362 dated 02.12.2021 [Annexure-3

to this petition] issued by the Home Secretary to the

Government of Tripura in exercise of powers conferred

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

Illicit Traffic in Narcotic Drugs and Psychotropic

Substances Act, 1988(for short PIT NDPS Act).

[2] The grounds of detention as disclosed in the

impugned order dated 02.12.2021 are as under:

"[1] As per report of Director General of Police, Tripura, the aforesaid Md. Nejam Uddin S/O Late Abdul Mannaf of South Manikbhandar, PS- Kamalpur, Dhalai District was involved in the following cases:

(i)Kamalpur PS. Case No. 2020KMP023 dated 08.04.2020 u/s 22(b)/25/29 of NDPS Act,1985.

(ii)Salema PS. Case No. 2020SLM002 dated 18.02.2020 u/s 8(C)/21(b)/29 of NDPS Act,1985.

(iii)Champahawar PS. Case No. 2020CPH017 dated 08.04.2020 u/s 8(C)/21(b)/29 of NDPS Act,1985.

[2] Md. Nejam Uddin S/O Late Abdul Mannaf of South Manikbhandar, PS- Kamalpur, Dhalai District has association with the smugglers of NDPS articles and illicit drug traffickers in connection with Kamalpur PS. Case No. 2020KMP023 dated 08.04.2020 u/s 22(b)/25/29 of NDPS Act,1985, Salema PS. Case No. 2020SLM002 dated 18.02.2020 u/s 8(C)/21(b)/29 of NDPS Act,1985 and Champahawar PS. Case No.

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2020CPH017 dated 08.04.2020 u/s 8(C)/21(b)/29 of NDPS Act,1985.

[3] The person is still active in illicit trafficking of NDPS articles as revealed from filed information and this refers to Kamalpur PS GD Entry No.12&22 dated 09.07.2021 and also GD Entry No.13&18 dated 11.09.2021, but could not be arrested red handed again and issue of detention order under PIT NDPS will also help Police in initiating financial investigation laid down under Chapter-V(A) of NDPS Act.

[4] Md. Nejam Uddin has been involved in illicit transportation of significant quantities of narcotic substances, involving Brown Sugar and contraband psychotropic substances, use of different motor bikes and in close association with different accused persons. This clearly indicates the extent of his involvement as a key player in the inter-state nexus of narcotics trafficking. Keeping such a person on bail is likely to empower him to organize crime further. [5] Md.Nejam Uddin is not only involved in NDPS cases under Dhalai District where his home address is but also doing NDPS business at Khowai District which is evident while he was caught red handed in Champahowar with contraband psychotropic substances and subsequently a case vide Champahawar PS. Case No. 2020CPH017 dated 08.04.2020 u/s 8(C)/21(b)/29 of NDPS Act,1985 registered against him with other associates."

[3] According to the detaining authority, the

detenue was made aware of the grounds of detention and

copies of the documents relied on by the detaining

authority along with the detention order were duly served

on the detenue. It is stated that the detenue was also

apprised of his right to make representation to the

Central/State Government, the detaining authority as well

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as to the State Advisory Board. The report in respect of

the detention order was also forwarded to the Central

Government within the stipulated time in terms of sub-

section (2) of Section 3 of the PIT NDPS Act.

[4] The detenue submitted a written

representation dated 20.12.2021 against the detention

order contending, inter alia, that he was not served with

the copy of the report of the Director General of Police

and copies of some other relevant documents on the

basis of which the detention order was issued. He claimed

that as a result of non supply of those essential

documents he was deprived of the opportunity of making

an effective representation against the detention order.

His representation was rejected by the detaining authority

by order No.F.15 (9)-PD /2021 (P-xiv) /362 dated

03.02.2022.

[5] The State Government under Order No.15(9)-

PD/2021(P-xiv)/3775 dated 18.12.2021 made a reference

in respect of the detention to the Advisory Board in terms

of Section 9 of the PIT NDPS Act to make a report under

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sub-clause (a) of Clause (4) of Article 22 of the

Constitution.

[6] Having considered the materials placed before

it and having examined the detenue in person the

Advisory Board held that the detention order was

justified. Report of the Advisory Board was forwarded to

the State Government. Pursuant to the report dated

15.02.2022 of the State Advisory Board, the State

Government in exercise of power conferred under Section

9(f) read with Section 11 of the PIT NDPS Act confirmed

the detention order for a period of 01 year w.e.f. date of

detention under Order No.F.15(9)-PD/2021(P-xiv)/568

dated 23/02/2022.

[7] Heard Mr.P.K.Biswas, learned Sr. Advocate,

appearing for the detenue along with Mr.P.Majumder

learned advocate.

Heard Mr. S.Ghosh, learned Addl. PP,

representing the State respondents.

[8] Mr. Biswas, learned Sr. Advocate, appearing

for the detenue has contended that the relevant

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documents which formed the foundation of the detention

order were not supplied to the detenue. Counsel has

contended that Article 22(5) of the Constitution obligates

supply of the materials considered by the detaining

authority to enable the detenue to make an effective

representation within the meaning of Article 22(5) of the

Constitution. It is argued by learned counsel that since

the detaining authority has failed to discharge its

constitutional obligation, the detention order is violative

of the right of the detenue as guaranteed under Article

22(5) of the Constitution and as such the said order is

likely to be quashed as the same is illegal ab initio. It is

further contended by Mr. Biswas, learned Sr. counsel,

that for formation of subjective satisfaction about the

necessity of preventive detention, the detaining authority

considered the fact that 03 criminal cases under various

provisions of NDPS Act were pending against the detenue.

Counsel contends that in all those cases, the detenue was

released on bail and non placement of the bail orders

before the detaining authority vitiated the subjective

satisfaction of the detaining authority. Counsel argues

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that had the bail orders been produced before the

detaining authority, the same would have persuaded the

detaining authority to desist from passing the detention

order. To nourish his contention, learned counsel has

relied on the judgment dated 16.03.2022 of this court

passed in WP(C)(HC)04 of 2021 wherein this court

observed as under:

"[21] Since, in the detention order there is no reference to the bail orders, the order ex facie says that those orders were not placed before the detaining authority and as a result the detaining authority at the time of passing the detention order was not aware of the fact that the detenu was granted bail in those cases and no challenge against those orders were raised by the State in the higher forum. Absence of awareness of such essential facts on the part of the detaining authority, in our view, resulted in non application of mind which obviously affected the subjective satisfaction of the detaining authority. None can say with certainty that such bail orders, if placed before the detaining authority and considered by such authority would not have persuaded him to desist from passing such order of detention. In the case of M. Ahamedkutty vs. Union of India & Anr. reported in (1990) 2 SCC 1 the Apex Court held that non consideration of the bail order amounted to non application of mind. We can profitably quote the following observation made by the Apex Court in paragraph 25 of the judgment which is as under:

"25. Non-consideration of the bail order would have, therefore, in this case amounted to non-application of mind. In Union of India v. Manoharlal Narang, (1987) 2 SCC 241, the Supreme Court's interim order in pending appeal against

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High Court's quashing of a previous order of detention against the same detenu was not considered by the detaining authority while making the impugned subsequent order against him. By the interim order Supreme Court had permitted the detenu to be at large on condition of his reporting to the police station daily. It was held that nonconsideration of the interim order which constituted a relevant and important material was fatal to the subsequent detention order on ground of non-

application of mind. If the detaining authority considered that order one could not state with definiteness which way his subjective satisfaction would have reacted and it could have persuaded the detaining authority to desist from passing the order of detention. If in the instant case the bail order on condition of the detenu's reporting to the customs authorities was not considered the detention order itself would have been affected. Therefore, it cannot be held that while passing the detention order the bail order was not relied on by the detaining authority. In S. Gurdip Singh v.

Union of India (1981) 1 SCC 419, following Ichhu Devi Choraria v. Union of India (1980) 4 SCC 531 and Shalini Soni v. Union of India (1980) 4 SCC 544 it was reiterated that if the documents which formed the basis of the order of detention were not served on the detenu along with the grounds of detention, in the eye of law there would be no service of the grounds of detention and that circumstances would vitiate his detention and make it void ab initio." [Italics supplied by us]

[22] In our considered view, the bail orders were the most pertinent and proximate matters which cannot be discarded as irrelevant and remote in the given fact situation of the case and as such those orders should have been placed before the detaining authority for consideration and arriving at a subjective satisfaction as contemplated under sub

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section (1) of section 3 of PITNDPS Act to arrive at a conclusion with regard to the necessity of the preventive detention of the detenu.

[23] In the case of Rekha (Supra) which has been relied on by the counsel of the petitioner, the detention order was held to be bad by the Apex Court as the detaining authority was not made aware of the fact that a bail application of the detenu was pending on the date when the detention order was passed. In the case of Rushikesh Tanaji Bhoite (Supra) which has been relied on by the counsel of the petitioner, the Apex Court has clearly observed that non placing and non consideration of a material as vital as the bail order vitiates the subjective decision of the detaining authority.

[24] Therefore, we are of the view that in the given facts and circumstances of the case, the orders whereunder the detenu was granted bail in the cases referred to in the detention order were relevant and vital documents and non consideration of those documents by the detaining authority has resulted in his non application of mind which has vitiated the detention order passed by him.........."

[9] Counsel of the petitioner has further

contended that the detaining authority has referred to

some old and stale incidents to justify the detention

order. Counsel has argued that this court in the case of

Kalam Mia Vs. Chairman, Advisory Board and Ors.

[WP(Crl.)10 of 2021] by judgment dated 22.06.2022 has

allowed release of the detenue from preventive detention

on the ground that the past incidents which were referred

to in the detention order were old and stale matters in

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which the detenue was granted bail. Counsel has relied

on paragraphs 14,15,16,17,18 and 19 of the judgment

which are as under:

"[14] Having referred to the decision of the Hon'ble Apex Court in SAMA ARUNA Versus STATE OF TELENGANA AND ANOTHER reported in (2018) 12 SCC 150, learned counsel argues that in the said case, the Hon'ble Apex Court has observed that incidents which are old and stale and in which detenue has been granted bail, cannot be said to have any relevance for detaining a citizen and depriving him of his liberty without trial. Learned counsel has referred to the following paragraphs of the said judgment of the apex court which read as under:

"21. Incidents which are old and stale and in which the detenu has been granted bail, cannot be said to have any relevance for detaining a citizen and depriving him of his liberty without a trial. This Court observed the following in Khudiram Das v. State of W.B (SCC p.92, para9):

"9.....The grounds on which the satisfaction is based must be such as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached. They must be relevant to the subject-matter of the inquiry and must not be extraneous to the scope and purpose of the statute. If the authority has taken into account, it may even be with the best of intention, as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be bad. Partap Singh v. State of Punjab. If there are to be found in the statute expressly or by implication matters which the authority ought to have regard to, then, in exercising the power, the authority must have regard to those

WP(C)(HC)02 of 2022

matters. The authority must call its attention to the matters which it is bound to consider."

22. We are of the view, that the detention order in this case is vitiated by taking into account incidents so far back in the past as would have no bearing on the immediate need to detain him without a trial. The satisfaction of the authority is not in respect of the thing in regard to which it is required to be satisfied. Incidents which are stale, cease to have relevance to the subject- matter of the enquiry and must be treated as extraneous to the scope and purpose of the statute."

[15] Counsel contends that the detention order was issued after the accused was granted bail in the NDPS case registered against him. If the detaining authority had any apprehension that due to his release on bail he would again carry on illegal activities in trafficking of NDPS, the detaining authority should have challenged the bail order instead of issuing an order for preventive detention of the accused. Under the premises aforesaid, counsel of the petitioner has urged the court for quashing the detention order.

[16] Appearing for the State, learned PP has argued that the detention order was issued against the petitioner since from his past conduct and antecedents, the detaining authority, on the basis of the materials placed before it, arrived at a subjective satisfaction that unless detained, the petitioner would continue to engage himself in nefarious activities in trafficking of NDPS.

[17] Learned PP contended that the order of detention along with the grounds thereof and the documents relied on by the detaining authority for issuing the detention order were communicated to the detenue and he was apprised of his right to make representation against the detention order. Nowhere in his representation, the detenue made any complaint that he did not receive any document or he was not apprised of his right to make representation. Learned PP contended that the

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safeguards provided under Article 22(5) of the Constitution were meticulously followed by the detaining authority and therefore, the detention order cannot be said to be illegal on any ground. Learned PP, therefore, urged the court to reject the petition.

[18] We have considered the submissions of learned counsel representing the parties and perused the materials placed before us. It has clearly emerged from the impugned order of detention that the detaining authority mainly relied on the involvement of the petitioner in Dharmanagar PS Case No. 2018DMN191 dated 16.12.2018 which was registered against the petitioner for commission of offence punishable under Sections 20(ii)(c) and 29 of NDPS Act. It is a settled law that the detention order must reflect the materials on the basis of which the detaining authority reached the subjective satisfaction about the need of preventive detention. In the instant case there is no reference in the detention order to the bail order granted by the trial court in favour of the accused in the said NDPS case. Moreover, undisputedly the only NDPS case registered against the accused which finds mention in the detention order dates back to 16.12.2018 and the detention order has been issued on 09.09.2021. As per the ratio decided by the apex court in the case of Sama Aruna(supra), incidents which are old and stale and in which detenue has been granted bail, cannot be said to have any relevance for detaining a citizen and depriving him of his liberty without trial. The Hon'ble Apex Court in the said judgment has succinctly held that detention order taking into account incidents which occurred far back in the past would have no bearing on the immediate need to detain a person without trial.

[19] In view of the facts and circumstances stated above and the law laid down by the apex court in the case of Sama Aruna (supra), we find merit in the contention of learned counsel of the petitioner that the detention order is vitiated for non consideration of relevant materials. As a result, the

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petition stands allowed and the impugned detention order is set aside......"

[10] The state counsel having vehemently opposed

the contention of the counsel of the petitioner urges for

rejection of the petition. Mr.S.Ghosh, learned Addl.PP,

contends that the report of the DGP as well as the

relevant entries in the GD of Kamalpur Police Station

were supplied to the detenue immediately after receiving

his representation against the detention order. Counsel

has contended that all other relevant documents were

supplied to the detenue along with the detention order

and as such plea of the detenue that he was prevented

from filing an effective representation against his

preventive detention is not acceptable. Mr. Ghosh,

learned Addl. PP has further contended that criminal

antecedents of the detenue indicate that he is a habitual

offender and with a view to striking just and delicate

balance between the individual liberty and personal

freedom on the one hand and social security and safety

on the other hand, his preventive detention is absolutely

justified. Counsel therefore, urges the court to reject his

petition.

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[11] Mr.B.Majudmer, learned ASG has contended

that copy of the detention order has been communicated

to the Central Government within the stipulated period of

time in terms of Section 3(2) of the PIT NDPS Act.

[12] As stated, the main grounds on which the

detenue has challenged his preventive detention are as

under:

(i) The relevant documents which formed the foundation of his preventive detention were not supplied to him.

(ii) There is no live and proximate link between the past cases and the detention order.

(iii) The fact that the detenue was already released on bail in all the past cases were not considered by the detaining authority.

[13] It is a settled proposition of law that in a case

of preventive detention, the documents which formed the

foundation of the detention order are required to be

supplied to the detenue since non supply thereof would

prevent the detenue from making an effective

representation against the detention order and thereby

prejudice the detenue.

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[14] It would appear from the impugned order of

preventive detention that the detaining authority relied on

the proposal of the DGP and Kamalpur PS. GD Entry

No.12&22 dated 09.07.2021 and GD Entry No.13 &18

dated 11.09.2021 to arrive at a subjective satisfaction for

preventive detention of the petitioner. The relevant

extract of the detention order is as under:

"Whereas, the Director General of Police has sent a proposal for detention of Md. Nejam Uddin S/O Late Abdul Mannaf of South Manikbhandar, PS - Kamalpur, Dhalai District under PIT NDPS Act,1988 along with records under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act,1988.

AND

Whereas, on perusal of records as submitted by the Director General of Police, Tripura it appears that Md. Nejam Uddin S/O Late Abdul Mannaf of South Manikbhandar, PS - Kamalpur, Dhalai District under PIT NDPS Act,1988 was involved in the following cases:

(i)Kamalpur PS. Case No. 2020KMP023 dated 08.04.2020 u/s 22(b)/25/29 of NDPS Act,1985.

(ii)Salema PS. Case No. 2020SLM002 dated 18.02.2020 u/s 8(C)/21(b)/29 of NDPS Act, 1985.

(iii)Champahawar PS. Case No. 2020CPH017 dated 08.04.2020 u/s 8(C)/21(b)/29 of NDPS Act, 1985.

AND

Whereas, the person is till active in illicit trafficking of NDPS articles as revealed from filed information and this refers to Kamalpur PS GD Entry No.12&22 dated 09.07.2021 and also GD Entry No.13&18 dated 11.09.2021, but could not be arrested red-handed

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again and issue of detention order under PIT NDPS will also help Police in initiating financial investigation laid down under Chapter -V(A) of NDPS Act.

AND ..........................................................................."

[15] In his representation dated 20.12.2021, the

detenue had categorically stated that he was neither

served with the copy of the proposal of the DGP nor the

copy of Kamalpur P.S GD Entry No.12 & 22 dated

09.07.2021 and GD Entry No.13 & 18 dated 11.09.2021.

[16] The contention of the detenue that report of

DGP and the relevant GD entries were not supplied to him

along with the detention order is not denied by the

detaining authority in clear terms. Regarding the

contention of the detenue that relevant GD entries of

Kamalpur PS were not supplied to him, the respondents

in their counter affidavit dated 06.05.2022 has stated as

under:

"13.........Even though it is a fact that the GD entries vide Kamalpur PS GDE No. 12/2022 dated 09.07.2021 and GDE No.13&18 dated 11/09/2021 were not handed over to the detenue-petitioner initially considering confidentiality questions but subsequently as per the communication of the authority, these GD Entries were provided to the detenue-petitioner, who acknowledged the same".

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[17] Similarly, in the order dated 03.02.2022

whereby the representation of the detenue was rejected

by the detaining authority, it has been stated as under:

"ORDER ...........................................................................................

AND .............................................................................................

AND WHEREAS, proposal of Director General of Police vide letter dated 27.09.2021 alongwith detention order and grounds of detention was already sent to the detenue for serving upon him at the time of detention, however considering the representation, a copy of the proposal of Director General of Police vide letter dated 27.09.2021, copy of letter dated 20.09.2021 of Dy. Inspector General of Police (N/R), copy of letter dated 13.09.2021 of SP (Dhalai) along with Annexure-A:- list of relied upon documents are further sent herewith for making effective representation by the detenue AND ...............................................................................................

AND ...............................................................................................

AND WHEREAS, the copies of Kamalpur PS GD entry No.12 & 22/09.07.2021 and also GD entry No.13 & 18 dated 11.09.2021 are sent herewith for making effective representation before the detaining authority and for examination of the same by the detaining authority. ............................................................................"

[18] It is thus quite apparent on the face of the

record that the proposal of the DGP as well as the

relevant GD Entries of Kamalpur Police Station which

formed the foundation of the preventive detention order

were not supplied to the detenue along with the detention

order and those were supplied to him only after his

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representation was considered and rejected by the

detaining authority.

[19] The apex court in the case of A.C.RAZIA Versus

STATE OF KERALA AND OTHERS reported in (2004)2 SCC 621

while dealing with the constitutional safeguards provided

under Article 22(4) and Article 22(5) of the Constitution

held that the grounds of detention together with the

supporting documents should be made available to the

detenue in a language known to him. The observation of

the apex court is as under:

"10. We are concerned here with clause (5) of Article 22. The dual rights under clause (5) are :

(i) the right to be informed as soon as may be of the grounds on which the order has been made, that is to say, the grounds on which the subjective satisfaction has been formed by the detaining authority, and (ii) the right to be afforded the earliest opportunity of making a representation against the order of detention. By judicial craftsmanship certain ancillary and concomitant rights have been read into this Article so as to effectuate the guarantees/ safeguards envisaged by the Constitution under Clause (5) of Article 22. For instance, it has been laid down by this Court that the grounds of detention together with the supporting documents should be made available to the detenu in a language known to the detenu. The duty to apprise the detenu of the right to make representation to one or more authorities who have power to reconsider or revoke the detention has been cast on the detaining authority. So also the duty to consider the representation filed by or on behalf of the detenu with reasonable expedition has been emphasized in more than one case and where

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there was inordinate delay in the disposal of representation, the detention was set aside on that very ground."

[20] The apex court has restated the law in

ADISHWAR JAIN VS. UNION OF INDIA AND ANOTHER

reported in (2006)11 SCC 339 as under:

"29. What is, therefore, relevant was as to whether the documents were material. If the documents were material so as to enable the detenue to make an effective representation which is his constitutional as also statutory right, non-supply thereof would vitiate the order of detention.

30. It is a trite law that all documents which are not material are not necessary to be supplied. What is necessary to be supplied is the relevant and the material documents, but, thus, all relevant documents must be supplied so as to enable the detenue to make an effective representation which is his fundamental right under Article 22(5) of the Constitution of India. Right to make an effective representation is also a statutory right. [See Sunila Jain v. Union of India and Another [(2006) 3 SCC 321]"

[21] In Union of India Vs. Ranu Bhandari reported

in (2008) 17 SCC 348, the apex court further

consolidated the law by stating that the documents both

against and in favour of the detenue which has been

relied upon by the detaining authority for arriving at a

subjective satisfaction must be supplied to the detenue to

enable him to make an effective representation against

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the detention order in order to maintain the safeguards

provided under Article 22(5) of the Constitution.

[22] In the case of Union of India Vs. Dimple

Happy Dhakad reported in AIR 2019 SC 3428, the Apex

Court on similar issue held as under:

"22. There is no statutory obligation on the part of the detaining authority to serve the grounds of detention and relied upon documents on the very same day; more so, when there is nothing to show that the detaining authority was guilty of inaction or negligence. The principle laid down by the Supreme Court in Mehdi Mohamed Joudi v. State of Maharashtra and others (1981) 2 SCC 358:(AIR 1981 SC 1752) that non-supply of documents and material pari passu would vitiate the detention order must be understood in the context of Section 3(3) of the COFEPOSA Act. Serving of detention order, grounds of detention and supply of documents must be contemporaneous as mandated within the time limit of five days stipulated under Section 3(3) of the COFEPOSA Act and Article 22(5) of the Constitution of India."

[23] In the given case it is apparent on the face of

the record that the detaining authority had relied on the

information recorded in GD entry No.12 dated

09.07.2021, GD Entry No. 22 dated 09.07.2021, GD entry

No.13 dated 11.09.2021 and GD Entry No. 18 dated

11.09.2021. We have gone through all the GD entries

which contain incriminating information against the

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detenue. The impugned preventive detention order clearly

demonstrates that those information recorded in the GD

entry of Kamalpur P.S coupled with the proposal of the

DGP formed the foundation of the detention order.

Admittedly copies of those GD entries were supplied to

the detenue only after his representation was rejected by

the detaining authority. There is therefore, no doubt that

for non supply of those essential documents the detenue

was seriously prejudiced since he was not given an

opportunity to explain those incriminating circumstances

by filing an effective representation. Similarly, there is no

proof of supply of the copy of the proposal of the DGP to

the detenue. Obviously, detenue has denied to have

received any copy of the same prior to submission of his

representation against the detention order. In the order

whereby his representation was rejected, the detaining

authority has stated that even though they supplied the

said document along with the detention order they

supplied another copy of the same to the detenue after

his representation was rejected. But there is no proof of

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service or reference to any date on which the same was

supplied to the detenue.

[24] There cannot be any amount of doubt that non

supply of those essential documents has curtailed the

right of the detenue which has been protected under

Article 22(5) of the Constitution. Obviously the detenue

was unable to make an effective representation due to

non supply of these documents.

[25] This apart, apparently the past cases which

were considered by the detaining authority for formation

of its opinion about the need of preventive detention of

the petitioner were registered in February 2020 and April

2020 i.e about 20 months before the impugned

preventive detention order was issued. There is no doubt

that these are all old and stale incidents. In Sama Aruna

Vs. State of Telengana and Anr reported in (2018)12

SCC 150, the Apex Court held that incidents which are

old and stale cannot be considered to have any relevance

for detaining a citizen and deprive him of his liberty

without trial. Observation of the Apex Court is as under:

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"21. Incidents which are old and stale and in which the detenu has been granted bail, cannot be said to have any relevance for detaining a citizen and depriving him of his liberty without a trial. This Court observed the following in Khudiram Das v. State of W.B (SCC p.92, para9):

"9.....The grounds on which the satisfaction is based must be such as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached. They must be relevant to the subject-matter of the inquiry and must not be extraneous to the scope and purpose of the statute. If the authority has taken into account, it may even be with the best of intention, as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be bad. Partap Singh v. State of Punjab. If there are to be found in the statute expressly or by implication matters which the authority ought to have regard to, then, in exercising the power, the authority must have regard to those matters. The authority must call its attention to the matters which it is bound to consider."

22. We are of the view, that the detention order in this case is vitiated by taking into account incidents so far back in the past as would have no bearing on the immediate need to detain him without a trial. The satisfaction of the authority is not in respect of the thing in regard to which it is required to be satisfied. Incidents which are stale, cease to have relevance to the subject-matter of the enquiry and must be treated as extraneous to the scope and purpose of the statute.".

[26] Relying on the decision Sama Aruna(supra),

the apex court in Mallada K Sri Ram Vs.State of

Telengana & Ors reported in Criminal Appeal No.561 of

2022 arising out of SLP (Crl.)No.1788 of 2022 held that

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the preventive detention order that is passed without

examining a live and proximate link between the event

and the detention tentamounts to punishment without

trial. The following observation of the apex court in Sama

Aruna(supra) was reproduced in the judgment of

Mallada K.Sri Ram(supra):

"17. It is also relevant to note, that in the last five years, this Court has quashed over five detention orders under the Telangana Act of 1986 for inter alia incorrectly applying the standard for maintenance of public order [V Shantha v. State of Telangana, (2017) 14 SCC 577; Banka Sneha Sheela v. State of Telangana, (2021) 9 SCC 415] and relying on stale materials while passing the orders of detention[Sama Aruna v. State of Telengana, (2018)12 SCC 150; Khaja Bilal Ahmed v. State of Telengana,(2020)13 SCC632]. At least ten detention orders under the Telangana Act of 1986 have been set aside by the High Court of Telangana in the last one year itself. These numbers evince a callous exercise of the exceptional power of preventive detention by the detaining authorities and the respondent-state. We direct the respondents to take stock of challenges to detention orders pending before the Advisory Board, High Court and Supreme Court and evaluate the fairness of the detention order against lawful standards."

[27] The impugned detention order clearly

demonstrate that in the given case the detaining

authority passed the impugned order without examining

and justifying the proximate link between the past cases

and the detention order. The incidents in the past cases

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occurred more than 20 months before the detention order

was issued.

[28] As stated, the accused was granted bail in all

the past cases in which charge sheet has been laid by the

investigating agency against the detenue and his

associates. It could not be ascertained whether the

detaining authority was made aware of these bail orders

before the detention order was issued. Submission of

petitioner's counsel that non consideration of the bail

orders by the detaining authority amounts to non

application of mind cannot be discarded. In the case of M.

Ahmedkutty Vs. Union of India & Anr. reported in

(1990)2 SCC 1 the Apex Court has succinctly held that

the bail orders constitute relevant and important

materials for consideration of the detaining authority. We

can profitably quote para 25 of the Judgment wherein the

apex court has held as under:

"25. Non-consideration of the bail order would have, therefore, in this case amounted to non-application of mind. In Union of India v. Manoharlal Narang, (1987) 2 SCC 241, the Supreme Court's interim order in pending appeal against High Court's quashing of a previous order of detention against the same detenu was not considered by the detaining authority while making the impugned

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subsequent order against him. By the interim order Supreme Court had permitted the detenu to be at large on condition of his reporting to the police station daily. It was held that nonconsideration of the interim order which constituted a relevant and important material was fatal to the subsequent detention order on ground of non-application of mind. If the detaining authority considered that order one could not state with definiteness which way his subjective satisfaction would have reacted and it could have persuaded the detaining authority to desist from passing the order of detention. If in the instant case the bail order on condition of the detenu‟s reporting to the customs authorities was not considered the detention order itself would have been affected. Therefore, it cannot be held that while passing the detention order the bail order was not relied on by the detaining authority. In S. Gurdip Singh v. Union of India (1981) 1 SCC 419, following Ichhu Devi Choraria v. Union of India (1980) 4 SCC 531 and Shalini Soni v. Union of India (1980) 4 SCC 544 it was reiterated that if the documents which formed the basis of the order of detention were not served on the detenu along with the grounds of detention, in the eye of law there would be no service of the grounds of detention and that circumstances would vitiate his detention and make it void ab initio." [Italics supplied by us]

[29] In a later decision in the case of Rushikesh

Tanaji Bhoite Vs. State of Maharashtra & Ors. reported

in (2012) 2 SCC 72, the Apex Court observed that in the

case where the detenue was enjoying his freedom under

the bail order passed by the court at the time of passing

the order of detention, such bail order must have to be

placed before the detaining authority to arrive at a proper

satisfaction about the need of detention. Observation of

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the apex court in para 9 and 10 of the judgment are as

under:

"9. In a case where the detenu is released on bail and is enjoying his freedom under the order of the court at the time of passing the order of detention, then such order of bail, in our opinion, must be placed before the detaining authority to enable him to reach at the proper satisfaction.

10. In the present case, since the order of bail dated 15-8-2010 was neither placed before the detaining authority at the time of passing the order of detention nor the detaining authority was aware of the order of bail, in our view, the detention order is rendered invalid. We cannot attempt to assess in what manner and to what extent consideration of the order granting bail to the detenu would have affected the satisfaction of the detaining authority but suffice it to say that non-placing and non consideration of the material as vital as the bail order has vitiated the subjective decision of the detaining authority."

[30] The bail orders are therefore, the most

pertinent and proximate material which cannot be

discarded as irrelevant in the given fact situation of the

case and as such those orders should have been placed

before the detaining authority for consideration and

arriving at a subjective satisfaction as contemplated

under sub-section (1) of Section 3 of PIT NDPS Act.

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[31] In view of what is stated above, we are of the

considered view that non supply of relevant documents

to the detenue, failure on the part of the detaining

authority to prove the existence of live and proximate

link between the past cases and the detention order and

non consideration of the bail orders have vitiated the

detention order.

[32] Resultantly, the petition stands allowed and

the impugned detention order is set aside. The detenue

be released forthwith unless his detention is required in

any other case. The order shall be communicated to the