Tripura High Court
Sri Sushanta Kumar Banik vs The State Of Tripura Represented ... on 1 June, 2022
-1-
HIGH COURT OF TRIPURA
AGARTALA
WP(C)(HC) 06/2021
Sri Sushanta Kumar Banik, son of Late Shanti Chanda
Banik, resident of Siddhiashram, Badharghat, Kalimata
Sangha, near Agartala Railway Station, PS- Amtalai,
District- West Tripura, who is presently lodged in Kendriya
Samsodhanagar Tripura, Bishalgarh.
-----Petitioner(s)
Versus
1.The State of Tripura represented by the Principal
Secretary, Home Department, Government of Tripura,
having his office at Secretariat Complex, PO Kunjaban, PS
New Capital Complex, Sub-Division - Agartala, District-
West Tripura.
2.The Principal Secretary, Home Department,
Government of Tripura, having his office at Secretariat
Complex, PO Kunjaban, PS New Capital Complex, Sub-
Division - Agartala, District- West Tripura.
3.The Director General of Police, Tripura, having his
office at Police Headquarters, Fire-Brigade Chowmohani,
PS- West Agartala, PO and Sub-Division-Agartala, District-
West Tripura.
4.The Advisory Board, Prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substance Act, 1988,
Tripura, represented by its Secretary.
5.The Union of India represented by the Secretary to the
Ministry of Home Affairs, Government of India, South
Block, New Delhi- 110001.
-----Respondent(s)
-2-
BEFORE
HON'BLE THE CHIEF JUSTICE MR.INDRAJIT MAHANTY
HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY
For the Petitioner(s): Mr. Somik Deb, Sr. Adv.
Mr. Abir Baran, Adv.
Mrs. Riya Chakraborty, Adv.
Mr. Asis Bhadra,Adv.
Mr. Krishnendu Debnath, Adv.
For the Respondent(s): Adv. General
Sr. GA
Mr Ratan Datta, PP
Mr Bidyut Majumder, A.S.G
Mr S Debnath, Addl. PP,
Mr D Bhattacharya, Adv.
Ms. A. Chakraborty, Adv
Date of Hearing : 26.04.2022
Date of Judgment : 01.06.2022
Whether fit for reporting: Yes/No
JUDGMENT
(S.G.Chattopadhyay), J
[1] Petitioner Sushanta Kumar Banik was
detained under Section 3(1) of the Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic Substances
Act, 1988 (PIT NDPS Act, herein after) by an order
dated 12.11.2021 [Annexure-5] issued by the
Secretary to the Government of Tripura in the Home
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Department. Grounds of his detention are stated to be
as under:
"(i) Shri Sushanta Kumar Banik S/O Late Shanti Ch. Banik of Siddhiashram,
Badharghat, Kalimata Sangha, Near Agartala Railway Station, P.S.-Amtali,
West Tripura has association with the smugglers of NDPS articles and illicit
drug traffickers in connection with Amtali P.S. Case No.2019/AMT/208 dated
05.11.2019 U/A 22(b)/22(c)/29 of NDPS Act, 1985 and East Agartala PS Case
No.2021 EAG 052 dated 25.04.2021 U/S 21(B)/29 of NDPS Act.
(ii) He was charge sheeted in Amtali PS Case No.2019/AMT/208 dated
05.11.2019 U/S 22(b)/22(c)/29 of NDPS Act, 1985 which was registered following
seizure of 92 gm brown sugar (Heroin) and 7600 nos yaba tablets. Investigation
of the case has revealed that he is involved in running in illegal business of
narcotic drugs throughout the State and outside the State.
(iii) He again got involved in East Agartala PS Case No.2021EAG052 dated
25.04.2021 U/S 21(B)/29 of NDPS wherein on 25.04.2021 the said Sushanta
Kumar Banik was again caught red handed while dealing NDPS substances near
Badharghat Railway Station. One pouch filled with suspected heroin was
recovered from the possession along with cash 20,400/- and android mobile
phone. It is very much clear that the said Sushanta Kumar Banik is a habitual
drug dealer and sells drug to youths hence running the lives of young fellows as
well as the entire society as a whole.
(iv) He is a kingpin in illegal trafficking of narcotic drugs inside the State as well
as outside the State. He did not stop his illegal activities of narcotic drugs and
psychotropic substances even after his arrest in previous case vide Amtali PS
Case No.208/19 and East Agartala PS Case No.52/2021. It shows his
determination to continue his illegal NDPS business. It is further mentioned that
illicit trafficking in narcotic drugs and psychotropic substances caused a serious
threat to the health and welfare of the people and to protect the society from this
menace it is required to take stern action against the person."
[2] The order of detention was made pursuant
to the proposal dated 14.07.2021 [Annexure-D] of the
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Director General of Police. In his proposal, DGP
proposed for petitioner's preventive detention on the
following grounds:
"2. The above mentioned person is habitual in smuggling
banned NDPS articles. By selling such NDPS articles he is
spoiling the future of youths in our society and making them
drug addicts. It is a social crime. Therefore, his detention
under PIT NDPS Act is required for eradication of the menace
of drugs."
[3] The petitioner was, on 19.11.2021, served
with the order of detention along with the grounds of
detention. Pursuant to the order, he was detained in
Kendriya Samsodhanagar at Bishalgarh on the same
day i.e. on 19.11.2021. He was apprised of his right to
make representation to the Central/State Government,
detaining authority as well as to the Advisory Board.
[4] In terms of Clause (b) of Section 9 of the
PIT NDPS Act, the State Government referred the
matter to the State Advisory Board constituted under
Section 9(a) of the Act within the statutory period.
Pursuant to the order of the Advisory Board, detenue
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was produced before the Board on 16.12.2021. The
Board examined the detenue and recorded his
statement. The Advisory Board was of the view that
detention order and the documents containing the
grounds of detention were duly served on the detenue
on 19.11.2021 along with all required documents.
Detenue also acknowledged the receipt of the same.
The detenue did not submit any representation against
the detention order. On appreciation of the materials
placed before it, the Advisory Board in its report dated
20.01.2022 viewed as under:
"19.In view of the discussions made here-in-above, we are
fully convinced that the detenue should not be equated
with other criminal offenders in particular criminal case,
but is involved in consistent and continuous criminal
activities and thereby he has kept the society around him
under threat. Therefore, we are of the considered opinion
that the detention order is sustainable and as such we are
inclined to hold that the detention order was made
consciously in all fitness of mind in consideration of the
materials placed before the appropriate authority of the
Government."
WP(C)(HC)06 / 2021
[5] Pursuant to the report received from the
advisory board, the State Government by order dated
28.01.2022 confirmed the detention order in terms of
clause (f) of Section 9 of the PIT NDPS Act for a period
of 01 year from the date of his detention i.e from
19.11.2021. The said confirmation order was also
served on the detenue at Kendriya Samsodhanagar,
Bishalgarh on 01.02.2022 in presence of witnesses.
[6] Aggrieved by his detention, the petitioner
has challenged the detention order by making this
application under Article 226 of the Constitution
seeking issuance of a writ of habeas corpus,
commanding the respondents to release him from
detention.
[7] We have heard Mr.Somik Deb, learned Sr.
Advocate appearing along with Mr.Krishnendu Debnath
and Mr. Abir Baran, advocates for the petitioner.
WP(C)(HC)06 / 2021
[8] Mr. S.S.Dey, learned Advocate General has
appeared for the state respondents along with
Mr.Ratan Datta, learned PP, Mr.S.Debnath, Addl. PP
and Ms. Ayanika Chakraborty, advocate. The Union of
India is represented by Mr.Bidyut Majumder, learned
ASG.
[9] The petitioner has challenged the detention
order mainly on the following grounds:
(i)The order of detention is vitiated by non
application of mind of the detaining
authority.
(ii)In the detention order, the detaining
authority has referred to 02 criminal cases
pending against the detenue under NDPS
Act. But the detaining authority has not
indicated the status of those cases in the
detention order.
(iii) Right to make representation against
the detention order is an indefeasible right
of the detenue. But the detaining authority
WP(C)(HC)06 / 2021
did not apprise the detenue by specifying
the name of the authorities to whom the
detenue could submit such representation.
(iv) In the detention order dated 12.11.2021
[Annexure-5], the detaining authority did
not specify the period of detention which
resulted in violation of the constitutional
right of the detenue.
(v) The copy of the documents which were
supplied to the detenue along with the
detention order were absolutely illegible. As
a result of which he could not submit any
representation.
(vi)In the detention order, it was stated that
the order was issued pursuant to the
proposal of the Director General of Police.
But the copy of such proposal was not
supplied to the detenue which caused
prejudice to the detenue because he could
not file any representation for want of this
material document.
(vii) Non consideration of various orders
passed by the Special Judge in the criminal
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cases pending against the detenue
particularly the bail orders vitiated the
detention order for non application of mind
by the detaining authority.
(viii) Detenue was not made aware as to
whether the detention order was
communicated to the Central Government in
terms of the mandatory provision of law.
(ix) Under Section 3 of the PIT NDPS Act, in
case of State Government only an officer not
below the rank of Secretary who is specially
empowered by the government for the
purpose of Section 3 of the Act can pass the
detention order. The State respondent could
not produce any material to show that the
officer who issued the detention order was
specially empowered by the State
Government in terms of the provision of
Section 3 of the PIT NDPS Act.
(x) Till the date of filing of the writ petition
petitioner was not made aware as to
whether the advisory board approved the
detention order.
WP(C)(HC)06 / 2021
[10] Mr. Somik Deb, learned counsel appearing
for the petitioner has relied on the following decisions
to nourish his contentions against the impugned
detention order:
[i] HARIKISAN Versus STATE OF MAHARASHTRA
AND OTHERS reported in AIR 1962 SC 911
[ii] STATE OF U.P Versus KAMAL KISHORE SAINI
reported in (1988) 1 SCC 287
[iii] ASHOK KUMAR Versus UNION OF INDIA AND
OTEHRS reported in (1988) 1 SCC 541
[iv] M.AHAMEDKUTTY Versus UNION OF INDIA
AND ANOTHER reported in (1990) 2 SCC 1
[v] KAMALESHKUMAR ISHWARDAS PATEL Versus
UNION OF INDIA AND OTHERS reported in (1995)
4 SCC 51
[vi] UNION OF INDIA Versus RANU BHANDARI
reported in (2008) 17 SCC 348
[vii] REKHA Versus STATE OF TAMIL NADU
THROUGH SECRETARY TO GOVERNMENT AND
ANOTHER reported in (2011) 5 SCC 244
[viii] RUSHIKESH TANAJI BHOITE Versus STATE OF
MAHARASHTRA AND OTHERS reported in (2012) 2
SCC 72
[ix] ANKIT ASHOK JALAN Versus UNION OF INDIA
AND OTHERS reported in (2020) 16 SCC 127
[x] SHYAMAL DAS @SIMUL Versus STATE OF
TRIPURA AND ORS. reported in (2007) 3 GLR 41
WP(C)(HC)06 / 2021
[11] Relying on the decision of the apex court in
the case of Harikisan(supra), counsel of the petitioner
has argued that the petitioner could not file any
representation against the detention order since the
order was in English language and the petitioner was
not conversant with English. Counsel contends that on
this ground alone the apex court quashed the
detention order and released the accused who was
detained under Section 3 of the Preventive Detention
Act in the case of Harikisan(supra). Counsel contends
that similarly in the present case, the grounds of
detention were not explained to the accused in a
language known to him. As a result, accused could not
file a representation against the order which infringed
the constitutional safeguard provided under clause (5)
of Article 22 of the Constitution.
[12] Learned counsel of the petitioner also relied
on the decision of the apex court in the case of State
WP(C)(HC)06 / 2021
of U.P. Vs. Kamal Kishore Saini(supra) to support his
contention that non supply of material documents to
the detenue prevented him from filing effective
representation against the detention order. Learned
counsel contends that petitioner of the present case
was never served with a copy of the proposal of the
Director General of Police on the basis of which said
detention order was issued against him. Counsel
therefore, contends that non supply of this essential
document to the detenue has rendered the order of
detention invalid and illegal.
[13] To establish the contention that failure on
the part of the detaining authority to supply material
documents prevented the petitioner from making
effective representation against the grounds of
detention and caused infraction of article 22(5) of the
Constitution, learned counsel also relied on the
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decision of the apex court in the case of Ashok Kumar
(supra).
[14] Learned counsel argued that 02 criminal
cases were instituted against the petitioner under
NDPS Act. One is Amtali PS Case No.2019/AMT/208
which has culminated into charge sheet for offence
punishable under Sections 22(b), 22(c) and 29 NDPS
Act. The other case in which accused has been
implicated for similar offence is East Agartala P.S.
Case No.2021 EAG 052 which is pending at the
investigation stage. Learned counsel contends that in
both the cases accused was released on bail. But the
detention order would demonstrate that the bail orders
were never considered by the detaining authority to
apprise himself about the need of preventive
detention. Counsel contends that such non
consideration of bail orders by the detaining authority
amounted to non application of mind. Due to non
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consideration of these bail orders, the detaining
authority, according to learned counsel of the
petitioner, could not reach a subjective satisfaction
about the necessity of the detention order. Counsel
has argued that had the bail orders been considered
by the detaining authority, the same could have
persuaded the detaining authority to desist from
passing the order of detention. In support of his
contention, counsel has relied on the judgment of the
Hon'ble apex court in the case of M.AHAMEDKUTTY
(supra) paragraph 25 of which reads 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 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 non-
consideration 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
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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, and Shalini Soni v. Union of India,
[1981] 1 SCR 962, 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."
[15] Having relied on the decision of the apex
court in the case of Kamaleshkumar Ishwardas Patel
(supra), learned counsel of the petitioner has
contended that in the present case petitioner was
never made aware about his right to file a
representation before the detaining authority which
amounted to denial of the constitutional safeguard
provided to the petitioner under article 22(5) of the
Constitution. Learned counsel contends that the
detenue should have been apprised of his right to
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make a representation to the detaining authority and
the detaining authority was under a constitutional
obligation to independently consider such
representation and take a decision thereon. Learned
counsel contends that in the case of Kamaleshkumar
Ishwardas Patel(supra), the apex court upheld the
order of the high court quashing the detention order
mainly on the ground that the officer who was
specially empowered to make an order of detention
did not consider the representation of the detenue
which amounted to denial of the constitutional
safeguard provided under article 22(5) of the
Constitution. Learned counsel argues that the same
violation has taken place in this case which has
rendered the detention order of the petitioner
completely illegal.
[16] Relying on the decision of the Supreme
Court in the case of Union of India vs. Ranu Bhandari
WP(C)(HC)06 / 2021
(supra), learned counsel of the petitioner has argued
that in the said case the apex court, while examining
the order of preventive detention of the petitioner
issued under Section 3(1) of the Conservation of
Foreign exchange and Prevention of smuggling
Activities Act,1974, held that vital documents which
have a direct bearing on the detention order having
not been placed before the detaining authority and
copies of such vital documents having not been
supplied to the detenue, detenue was prevented from
making an effective representation against his
detention. The apex court, therefore, set aside the
appeal against the order of the high court whereunder
the high court quashed the detention order and
released the detenue. Learned counsel of the
petitioner contends that in the present case also the
detaining authority did not examine the vital
documents like the bail orders granted to the accused,
WP(C)(HC)06 / 2021
the prosecution papers of the criminal cases pending
against him to arrive at a subjective satisfaction before
passing the detention order and most importantly
those documents as well as the report of the Director
General of Police which persuaded the detaining
authority to issue the detention order were not
supplied to the detenue as a result of which the
detenue could not exercise his right to file a
representation against his detention order.
[17] Learned counsel contends that already two
criminal cases under various provisions of NDPS Act
have been instituted against the petitioner which are
sufficient to deal with the situation. Relying on the
decision of the apex court in the case of Rekha Vs.
State of Tamil Nadu(supra), learned counsel has
argued that where ordinary law of the land can
sufficiently deal with the charge against the detenue,
recourse to the preventive detention law is illegal.
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Counsel refers to paragraph 23 of the apex court's
judgment in the case of Rekha(supra) in support of his
detention which reads as under:
"23.In this connection, criminal cases are already
going on against the detenue under various
provisions of the Penal Code,1860 as well as under
the Drugs and Cosmetics Act,1940 and if he is found
guilty, he will be convicted and given appropriate
sentence. In our opinion, the ordinary law of the land
was sufficient to deal with this situation, and hence,
recourse to the preventive detention law was illegal."
[18] Learned counsel has also relied on the
decision of the apex court in Rushikesh Tanaji
Bhoite(supra) to contend that the preventive
detention order of the petitioner in the said case of
Rushikesh Tanaji Bhoite, was set aside by the apex
court on the ground that the bail order of the
petitioner was neither placed before the detaining
authority at the time of passing of order of detention
nor the detaining authority was aware of the order of
bail which vitiated the subjective satisfaction of the
detaining authority. According to Mr.Deb, learned
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senior counsel, the detention order in the present case
stands vitiated for the same reason. Learned counsel
has relied on paragraph 10 of the judgment which
reads as under:
"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 effected
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."
[19] Having relied on the judgment of the apex
court in the case of Ankit Ashok Jalan(supra), learned
counsel argued that article 22(5) must be construed to
mean that the detenue has a right to make
representation not only to the advisory board but also
to the detaining authority who made the order of
detention and the detaining authority shall retain
power to revoke the detention order till the
continuance of such detention comes to end. Learned
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counsel submits that in the given case the detenue
was not even informed that he has a right to make
representation to the detaining authority. At no stage
he was afforded with an opportunity to make a
representation against the detention order. Learned
counsel, therefore, argued that the safeguards
provided under Article 22(5) of the Constitution have
not been followed in this case for which the detention
order is liable to be quashed. Counsel has also
contended that even if the advisory board makes a
report supporting the order of detention, such report is
not binding on the state or the detaining authority.
Learned counsel has relied on paragraph 40 of the
judgment in which the apex court has held as under:
"40. This Court in Vimalchand Jawantraj Jain after
quoting from Khairul Haque's case, held as under:
"4. There are thus two distinct
safeguards provided to a detenu; one is that his
case must be referred to an Advisory Board for
its opinion if it is sought to detain him for a
longer period than three months and the other
is he should be afforded the earliest
opportunity of making a representation against
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the order of detention and such representation
should be considered by the Detaining
Authority as early as possible before any order
is made confirming the detention. Neither
safeguard is dependent on the other and both
have to be observed by the Detaining
Authority. It is no answer for the Detaining
Authority to say that the representation of the
detenu was sent by it to the Advisory Board
and the Advisory Board has considered the
representation and then made a report
expressing itself in favour of detention. Even if
the Advisory Board has glade a report stating
that in its opinion there is sufficient cause for
the detention, the State Government is not
bound by such opinion and it may still on
considering the representation of the detenu or
otherwise, decline to confirm the order of
detention and release the detenu. The
Detaining Authority is, therefore, bound to
consider the representation of the detenu on its
own and keeping in view all the facts and
circumstances relating to the case, come to its
own decision whether to confirm the order of
detention or to release the detenu."
[20] In the case of Shyamal [email protected] Simul(supra)
which has been relied on by the counsel of the
petitioner, detention order was issued under Section
3(3) of the National Security Act. Gauhati High Court
set aside and quashed the detention order on the
ground that there was no iota of material to show that
alleged activities of the detenue genuinely gave rise to
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the apprehension of threat to the security of the
state. The High Court, therefore, held that the
detention order was suffering from non application of
mind which could not be upheld in the eye of law.
Learned counsel relied on the observation of the High
Court where the high court held that application of
mind is in fact sine qua non for passing of an order of
detention. In the said case the High Court had also
observed that the detenue was never informed by the
detaining authority that he had a right to make
representation to the State and/or Central
Government and also to the advisory board. Learned
counsel contends that on similar ground the impugned
detention order of the petitioner is liable to be
quashed.
[21] At the end of his submissions, Mr. Somik
Deb learned Sr. Advocate has argued that there can
be no freedom higher than personal freedom and
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court's writ is the ultimate insurance against illegal
detention. Learned counsel has contended that the
detention order should be decided on the touch stone
of the safeguards provided under Article 22(4) and (5)
of the Constitution. In the present case, since the
detaining authority at no stage followed those
constitutional safeguards, the order of detention is
liable to be set aside and quashed.
[22] Appearing for the state, learned Advocate
General has argued that the detention order was
issued against the petitioner owing to his past conduct
and criminal antecedents and continued smuggling of
narcotic drugs and psychotropic substances within the
state and across the border. Learned counsel contends
that the detention order was issued setting forth the
grounds of detention in detail and same was duly
served on the detenue. The detenue also
acknowledged the receipt of the detention order.
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According to learned Advocate General, the detention
order itself would demonstrate that detenue was
informed about his right to make representation
against the detention order to the appropriate
authority provided under the law. Learned counsel has
contended that matter was referred to the state
advisory board within the time frame provided under
the law. State Advisory Board examined the detenue
and recorded his statement and after examination of
all materials came to the conclusion that the detention
order was absolutely justified. Learned counsel argued
that all the safeguards provided under Article 22(5) of
the Constitution have been flawlessly followed in this
case and, therefore, the detention order cannot be
said to be illegal from any point of view.
[23] Relying on the decision of the apex court in
Rameshwar Shaw Vs. District Magistrate, Burdwan
and Another reported in AIR 1964 SC 334, learned
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Advocate General has contended that even though the
detention order in the case of Rameshwar Shaw
(supra) under Section 3(1) of the Preventive Detention
Act, 1950 was set aside by the apex court, the court
made an observation in the case to the effect that the
antecedents history and the past conduct on which the
order of detention would be passed would, in such a
case, be proximate in point of time and would have
rational connection with the conclusion drawn by the
authority that the detention of the person after his
release is necessary. Learned counsel contends that in
the present context 02 cases are pending against the
petitioner under the NDPS Act and in both the cases
he has been released on bail by the trial court and in
01 case he has been charge sheeted. Learned counsel
argues that even thereafter, the petitioner was
carrying out smuggling in narcotic drugs and
psychotropic substances and his past conduct was so
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proximate in point of time to the detention order that
there is no scope to question the rational connection
between his past conduct and the detention order.
[24] In the case of RAJAN WORLIKAR VERSUS
STATE OF KARNATAKA AND OTHERS reported in
(2001) 5 SCC 295 relied upon by the learned Advocate
General the appellant challenged his detention order
under PIT NDPS Act mainly on the ground of non
communication to the detune his right of making
representation to the State Government. The apex
court discarded the contention of the petitioner on the
ground that the detention order was issued by an
officer specially empowered under Section 3(1) of the
PIT NDPS Act and from the detention order itself it
was clear that the appellant was communicated by the
detaining authority his right of making representation
to the appropriate authority including the Advisory
Board, the Central/State Government. Learned
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Advocate General has contended that in the given case
it is apparent on the face of the record that the
detention order contained recitals in clear and
unambiguous term that accused was entitled to submit
representation against the detention order to the
Central Government / State Government as well as to
the detaining authority and he had a right to be heard
before the Advisory Board. Learned Advocate General
had taken us through the relevant paragraph of the
detention order which reads as under:
"It is mentioned that the accused Shri Sushanta Kumar Banik
S/O Late Shanti Ch. Banik of Siddhiashram, Badharghat,
Kalimata Shangha, Near Agartala Railway Station, PS -Amtali,
West Tripura may submit his representation to the Central/
State Government against this order of detention. Such
representation may be submitted to the undersigned for onward
transmission to the Central / State Government. The accused is
to be informed that he will get all reasonable opportunity for
making representation against this order to the Central / State
Government, he may therefore, state to the undersigned what
opportunity he needs for this purpose. The accused is to be
apprised of his right to make representation before the
undersigned against this detention order. The accused is to be
informed that he also has a right to be heard before the
Advisory Board".
WP(C)(HC)06 / 2021
[25] It is, therefore, contended by learned
Advocate General that contention of the counsel of the
petitioner about the infraction of the procedural
safeguards provided under Article 22(5) of the
Constitution does not gain ground.
[26] Relying on the decision of the apex court in
the case of SAYED ABUL ALA Versus UNION OF
INDIA AND OTHERS reported in (2007) 15 SCC 208,
learned Advocate General has contended that the
detaining authority made specific reference to the
cases pending against the detenue under various
provisions of NDPS Act and opined that he was still
active in illicit trafficking of NDPS articles and the
detention order of the accused was necessary to
prevent him from carrying out such activities and such
order would also help police in initiating financial
investigation against the detenue in terms of the NDPS
Act. Learned counsel contends that huge quantity of
WP(C)(HC)06 / 2021
narcotic drugs and psychotropic substances were
recovered from the physical possession of the detenue
which were also mentioned in the detention order.
[27] Learned counsel contended that in the case
of Sayed Abul Ala(supra), the apex court had
succinctly held that the antecedents of the detenue
would be relevant factor for issuing preventive
detention order under PIT NDPS Act. Learned
Advocate General contended that detention order in
the given case was issued under compulsion of the
primordial need to maintain order in the society.
Counsel urged the court to uphold the detention order
of the petitioner.
Our Views:
[28] The law of preventive detention has been
examined by the apex court in a catena of decisions.
Apart from the decision, relied upon by the counsel of
the parties, we may profitably refer to the following
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decisions of the apex court in order to adjudicate the
issue from the right perspective.
[29] In the case of Shalini Soni versus Union of
India, reported in (1980) 4 SCC 544, the apex court
while dwelling on Article 22(5) of the Constitution
observed that the said Article has two facets; i)
communication of the grounds on which the order of
detention has been made ii) opportunity of making a
representation against the order of detention. The
observation of the apex court is as under:
"7...............................................................................
Communication of the grounds pre-supposes the
formulation of the grounds and formulation of the
grounds requires and ensures the application of the
mind of the detaining authority to the facts and
materials before it, that is to say to pertinent and
proximate matters in regard to each individual case
and excludes the elements of arbitrariness and
automatism (if one may be permitted to use the word
to describe a mechanical reaction without a
conscious application of the mind). It is an unwritten
rule of the law, constitutional and administrative,
that whenever a decision making function is
entrusted to the subjective satisfaction of a statutory
functionary, there is an implicit obligation to apply
his mind to pertinent and proximate matters only
eschewing the irrelevant and the remote. Where
there is further an express statutory obligation to
WP(C)(HC)06 / 2021
communicate not merely the decision but the
grounds on which the decision is founded, it is a
necessary corollary that the grounds communicated,
that is, the grounds so made known, should be seen
to pertain to pertinent and proximate matters and
should comprise all the constituent facts and
materials that went in to make up the mind of the
statutory functionary and not merely the inferential
conclusions. Now, the decision to detain a person
depends on the subjective satisfaction of the
detaining authority. The Constitution and the statute
cast a duty on the detaining authority to
communicate the grounds of detention to the detenu.
From what we have said above, it follows that the
grounds communicated to the detenu must reveal the
whole of the factual material considered by the
detaining authority and not merely the inferences of
fact arrived at by the detaining authority. The matter
may also be looked at from the point of view of the
second fact of Art. 22(5). An opportunity to make a
representation against the order of detention
necessarily implies that the detenu is informed of all
that has been taken into account against him in
arriving at the decision to detain him. It means that
the detenu is to be informed not merely, as we said,
of the inferences of fact but of all the factual material
which have led to the inferences of fact. If the detenu
is not to be so informed the opportunity so solemnly
guaranteed by the Constitution becomes reduced to
an exercise in futility. Whatever angle from which the
question is looked at, it is clear that "grounds" in Art.
22(5) do not mean mere factual inferences but mean
factual inferences plus factual material which led to
such factual inferences. The 'grounds' must be self-
sufficient and selfexplanatory. In our view copies of
documents to which reference is made in the
`grounds' must be supplied to the detenu as part of
the `grounds'." [Emphasis added]
[30] In A.C.RAZIA Versus GOVERNMENT OF
KERALA reported in (2004) 2 SCC 621, the apex court
WP(C)(HC)06 / 2021
further dwelt on the constitutional safeguards provided
under Article 22(5) of the Constitution and enunciated
the law 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 there
was inordinate delay in the disposal of
representation, the detention was set aside on that
very ground. [Emphasis added]
[31] The law was reiterated by the apex court in
Adiswar Jain Versus Union of India reported in
(2006) 11 SCC 339 in the manner as follows:
WP(C)(HC)06 / 2021
"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]"
[Emphasis added]
[32] Further in the case of Radhakrishnan
Prabhakaran Versus State of T.N, (2000) 9 SCC 170,
the apex court, with regard to the need of supply of
documents to the detenue in a preventive detention
matter, observed as under:
"8. We may make it clear that there is no legal
requirement that a copy of every document
mentioned in the or- der shall invariably be
supplied to the detenu. What is important is that
copies of only such of those documents as have
been relied on by the detaining authority for
reaching the satisfaction that preventive
detention of the detenu is necessary shall be
supplied to him. .................................................."
[33] The law laid down in the case of
Radhakrishnan Prabhakaran(supra) was reiterated by
WP(C)(HC)06 / 2021
the apex court in latter decision in J.ABDUL HAKEEM
VERSUS STATE OF TAMILNADU reported in (2005) 7 SCC
70 and it was held as under:
"7. In the latter decision of this Court , in the
matter of Kamarunnissa Vs. Union of India and
Others (1991) 1 S.C.C. 128, this Court
reaffirmed the right of the detenu to receive
the document which was taken into
consideration by the detaining authority while
formulating the grounds of detention. The
Court further said that a duty and obligation is
cast on the detaining authority to supply copies
of those documents in the language known to
the detenu; having said, the Court put a rider;
but it is not that non-supply of each and every
document provides a ground for setting aside
the detention order. It is for the detenu to
establish that the non-supply of copies of the
documents has impaired the detenu's right to
make an effective and purposeful
representation. The demand made by the
detenu for the document merely on the ground
that there is a reference in the grounds of
detention, cannot vitiate the otherwise legal
detention order. No hard-and-fast rule can be
laid down in this behalf. What is essential is
that the detenu must show that the failure to
supply the documents had impaired his right,
however slight or insignificant it may be.
8.The principle of supply of the material
documents to the detenu was considered by
this Court in the matter of Radhakrishnan
Prabhakaran Vs. State of T. N. (2000) 9 S.C.C.
170. In Para 8, this Court has said:
"8.We make it clear that there is no legal
requirement that a copy of every document
mentioned in the order shall invariably be
supplied to the detenu. What is important is
that copies of only such of those documents
WP(C)(HC)06 / 2021
as have been relied on by the detaining
authority for reaching the satisfaction that
preventive detention of the detenu is
necessary shall be supplied to him"
[34] From the law enunciated by the apex court
in the judgments cited to supra, particularly in the
case of Rdhakrishnan Prabhakaran(supra) followed in
the latter decision in Abdul Hakeem (supra), it would
be clear that there is no legal requirement that every
document mentioned in the detention order shall have
to be invariably supplied to the detenue. Court is
required to examine as to whether copies of the
documents which formed the foundation of the
detention order were supplied to the detenue so as to
enable him to make an effective representation
against the order of his detention. Unless the detenue
can show as to how he was prejudiced by non-supply
of a particular document, the detenue cannot gain any
benefit merely by agitating that a document
mentioned in the detention order was not supplied to
him. It is not necessary to supply each and every
WP(C)(HC)06 / 2021
document which have been referred to in the
detention order merely for the purpose of narration of
facts.
[35] The contextual facts of the given case depict
that the detenue, who used to run his hotel business
allegedly stored huge quantity of NDPS in his dwelling
house near the railway station at Agartala. On
05.11.2019 police conducted raid in his dwelling house
and recovered 7600 yaba tablets in 38 packets and 92
gms of brown sugar from his possession. Pursuant to
the recovery and seizure of the said contraband,
Amtali P.S case No.2019 AMT 208 dated 05.11.2019
was registered against him and he was arrested. On
completion of the investigation the investigating
agency laid charge sheet against him under Sections
22(b), 22(c) and 29, NDPS Act. Within few months, he
also got involved in East Agartala P.S case No.2021
EAG 052 which was registered under Sections 21(b)
WP(C)(HC)06 / 2021
and 29, NDPS Act pursuant to recovery and seizure of
121.69 gms Heroin from his possession. In both the
cases detenue was granted bail by the trial court.
[36] In order to justify the detention order the
state respondents in paragraph 17 of their counter
affidavit have asserted as under:
"17........it can be stated that Sri Sushanta kumar Banik S/o Lt.
Shanti Ch. Banik of Siddhi Ashram, Badharghat, Kalimata
Sangha Near Agartala Railway Station, PS Amtali, West
Tripura District is a kingpin in illegal trafficking of narcotic
drugs inside the state as well as outside the state. He did not
stop his illegal activities of narcotic drugs and psychotropic
substances even after his arrest in 01 (one) previous case.
And after being allowed bail in the previous case he was again
found involved in East Agartala PS case No.2021EAG052,
dated 25/04/2021, U/s 21(B)/29 of NDPS Act which shows
his determination to continue his illegal NDPS business. It is
further mentioned that, as illicit trafficking in narcotic drugs
and psychotropic substances is causing a serious threat to the
health and welfare of the people and to protect the society
from this menace it was required to take stern action against
the petitioner and therefore proposal for issuing of detention
order against the petitioner U/s- 3 of PIT NDPS Act, 1988 was
initiated to prevent him from engaging in illicit trafficking of
narcotic drugs and psychotropic substances in future."
[37] Learned Advocate General has also taken us
through the official record. It goes to show that the
detention order dated 12.11.2021 was duly served on
WP(C)(HC)06 / 2021
the detenue on 19.11.2021 along with a separate
document signed by the detaining authority which
contains the detailed grounds of detention. The
detenue acknowledged receipt of those documents by
putting his signature thereon.
[38] One of the main grounds on which the
detenue attacked his preventive detention order is
that in the detention order, the detaining authority
referred to the records submitted by the Director
General of Police. But copies of those records were not
furnished to the detenue. Learned counsel of the
petitioner contended that for non supply of those
essential documents which formed the foundation of
the detention order, detenue could not submit a
representation against the detention order and thus,
he was seriously prejudiced. Before making further
observation on such contention, it would be
WP(C)(HC)06 / 2021
appropriate to reproduce the relevant extract of the
detention order which reads as under:
"Whereas, on perusal of records as submitted by the Director
General of Police, Tripura, it appears that Shri Sushanta
Kumar Banik S/O Late Shanti Ch. Banik of Siddhiashram,
Badharghat, Kalimata Sangha, Near Agartala Railway Station,
PS. - Amtali, West Tripura under PITNDPS Act, 1988 was
involved in the following casesd:
(i) Amtali PS Case No.2019/AMT/208 dated
05.11.2019 U/S 22(b)/22(c)/29 of NDPS Act,1985.
(ii)East Agartala PS Case No.2021 EAG 052 dated
25.04.2001 U/S 21(B)/29 of NDPS Act."
[39] As stated, we have been taken through the
official records. The communication dated 14.07.2021,
whereby a proposal on behalf of the Director General
of Police, Tripura was sent to the Secretary, Home
Department, Government of Tripura, was actually
signed by the Assistant Inspector General of Police
(crime) on behalf of the Director General of Police. The
said communication contains the proposal of the
Director General of Police for issuing preventive
detention order against the detenue under PIT NDPS
Act. It emerges from the record that the detenue put
his signature on the said document in acknowledgment
WP(C)(HC)06 / 2021
of the receipt of the letter. Communication dated
28.06.2021 of SDPO, Amtali which was forwarded by
the SP, West to the Director General of Police has also
been referred to in the said communication dated
14.07.2021. Apparently the said communication dated
28.06.2021 was also received by the detenue. In
acknowledgement of the receipt of the documents he
also put his signature on the said document. The
record also goes to show that all papers in connection
with the pending criminal cases were also served on
the detenue. Therefore, the contention of the learned
counsel of the petitioner that the proposal received
from the DGP was not served on the detenue does not
gain ground.
[40] Learned counsel of the petitioner also
assailed the impugned preventive detention order on
the ground that neither the detention order nor any
copy of the documents furnished to the detenue were
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intelligible to him because those were in English and
the detenue was not conversant with the English
language. Therefore, he could not understand the
meaning of those documents for writing an effective
representation against the detention order. As a result
of which he was prejudiced. We have examined such
contention. We have also gone through the decision of
the apex court in Harikisan(supra) relied on by the
counsel of the petitioner. One executive Magistrate of
Bishalgarh, Sepahijala district has certified that while
serving the detention order, the petitioner was
informed in his mother tongue that he was entitled to
make representation against the detention order to
the Central/State Government as well as to the
detaining authority and the Advisory Board. In the
case of Harikisan(supra), the context was entirely
different. Soon after the detention order was served,
appellant Harikisan demanded a Hindi version of the
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document from the District Magistrate and Collector of
Nagpur so that he might be able to write a reply to the
charges from inside jail. The DM declined to accede to
his request on the ground that detention order was in
English which was an official language of the state and
moreover, the DSP of Nagpur city orally explained the
order to him. In the present context, at no point of
time, not even before the Advisory Board, the detenue
raised his difficulties in understanding the grounds of
his detention. Rather, he stated before the Advisory
Board that soon after the detention order and the
documents accompanying the order were served on
him, he handed over those documents to his family
members to contact his lawyer for legal
representation.
[41] As stated, the detention order was made on
12.11.2021 and reference was made to the State
Advisory Board by the detaining authority by its
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communication dated 24.11.2021 in terms of clause
(b) of Section 9 of the PIT NDPS Act. In terms of sub-
section (2) of Section 3 of the PIT NDPS Act, report
was also sent to the Central Government by the
detaining authority within the statutory period of 10
days by communication dated 15.11.2021. In the
affidavit dated 25.03.2022 sworn by the Under
Secretary, Ministry of Finance (Department of
Revenue), Government of India, it has been asserted
that the detention order was also received by the
Central Government.
[42] The State Advisory Board on the reference
made to it under Section 9 of the PIT NDPS Act passed
an order on 08.12.2021 indicating that the detention
order along with the grounds of detention were duly
served on the detenue. But the detenue did not submit
any representation. The advisory board observed that
since the detenue had a right to be heard in person, if
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he so desires, the appropriate government should
produce the detenue before the board on 16.12.2021
at 11.00 AM. Pursuant to the order of the advisory
board detenue was produced before the advisory
board on 16.12.2021.
[43] The State Advisory Board in paragraph 11 of
its report dated 20.01.2022 has reproduced the
statement of the detenue recorded before the advisory
board. The detenue stated before the advisory board
that after the detention order was served on him he
was put to Kendriya Samsodhanagar at Bishalgarh
where he was made aware about the grounds of his
detention. Copy of the detention order and other
documents were also given to him and he was made
aware that he could file representation against the
detention order. A list of lawyers was also provided to
the detenue. Detenue handed over the detention order
and the documents supplied to him to his family
WP(C)(HC)06 / 2021
members to contact his lawyer. The Advisory Board
opined that the detention order was founded on
adequate materials and the said order was justified.
[44] Having received the report from the State
Advisory Board, the detaining authority confirmed the
detention order for a period of 01 year from the date
of the detention of the petitioner.
[45] From the facts stated above it would emerge
that petitioner was charge sheeted in Amtali P.S case
No.2019 AMT 208 on the charge of having stored
NDPS in his dwelling house. Within a short span of
time he was arrested in East Agartala P.S case
No.2021 EAG 052 almost on similar charge. From such
antecedents of the petitioner and in view of the report
received from the concerned superintendent of police
forwarded through Director General of Police, the
detaining authority arrived at its satisfaction that
preventive detention of the petitioner was necessary
WP(C)(HC)06 / 2021
to prevent him from committing similar offences.
Impugned detention order contains the grounds of
detention in detail. Therefore, submission of the
counsel of the petitioner that the detention order
suffers from non application of mind is devoid of merit.
[46] It has also surfaced from the record that the
petitioner was given all opportunities to make real and
effective representation against the detention order.
Detention order and the grounds of detention were
explained to him in his mother tongue which has been
certified by an Executive Magistrate and during his
detention jail authority also supplied a list of lawyers
to him. In his statement made before the State
Advisory Board, the detenue stated that he was given
opportunity to contact his wife and other family
members. He also handed over the detention order
and other documents to his family members for the
purpose of legal representation. As stated, we have
WP(C)(HC)06 / 2021
been taken through the records of the Advisory Board.
The Advisory Board has also recorded the statement of
the petitioner which has been reproduced in full in the
report of the Advisory Board. The report does not
mention any request having been made to the board
by the petitioner for filing a representation against the
detention order. In absence of any such request, it is
quite difficult to attach any importance to the
grievance of the petitioner that he was not provided
with adequate opportunity for filing representation
against the detention order.
[47] Having heard learned counsel representing
the parties and gone through the materials placed
before us, we are convinced that the order reflects the
anxiety of the detaining authority to prevent the
petitioner from getting any further opportunity in
smuggling narcotic drugs and psychotropic substances
and such anxiety was generated from the past conduct
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and antecedents of the petitioner. As discussed in the
preceding paragraphs, the constitutional safeguards
provided under Article 22(5) of the Constitution has
been observed by the detaining authority by indicating
to the detenue the grounds of his detention and
providing him full opportunities of making an effective
representation against the order of detention.
[48] In the result, the petition stands dismissed.
Pending application(s), if any, shall also
stand disposed of.
Department's file shall be returned through
the PP forthwith.
(S.G.CHATTOPADHYAY), J (INDRAJIT MAHANTY),CJ
Saikat Sarma, PS-II
WP(C)(HC)06 / 2021
