Shri. Bishu Kumar Tripura vs The State Of Tripura
2022 Latest Caselaw 315 Tri

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                            HIGH COURT OF TRIPURA
                                  AGARTALA
                            WP(C)(HC) No. 04 of 2021

    Shri. Bishu Kumar Tripura
    Son of Shri Malindra Tripura, resident of Lalmaibari, Padmalochan High
    School, PS-Melagharh, District-Sepahijala, Tripura.
                                                           ----- Petitioner(s)
                                   Versus
1. The State of Tripura,
   represented by the Secretary to the Government of Tripura, Home
   Department, having his office at Secretariat Complex, PO Kunjaban, PS
   New Capital Complex, Sub-Division-Agartala, District West Tripura.
2. The Secretary,
   Government of Tripura, Home Department, having his office at
   Secretariat Complex, PO Kunjaban, PS New Capital Complex, Sub-
   Division-Agartala,                District           West            Tripura.
3. The Deputy Secretary,
   Government of Tripura, Home Department, having his office at
   Secretariat Complex, PO Kunjaban, PS New Capital Complex, Sub-
   Division-Agartala, District West Tripura.
4. The Director General of Police,
   Tripura, Police Headquarters, Fire Brigade Chowmohani, PS-West
   Agartala, PO & Sub-Division-Agartala, District West Tripura.
5. The Advisory Board,
   Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances
   Act, 1988, Tripura, represented by its Secretary.
6. The Union of India,
   represented by the Secretary to the Ministry of Home Affairs, Government
   of India, South Block, New Delhi-110001
                                                            ----- Respondent(s)

    For Petitioner(s)              :     Mr. Sankar Lodh, Adv.
    For Respondent(s)              :     Mr. S.S. Dey, Advocate General.
                                         Mr. Bidyut Majumder, Asstt. SG.
                                         Mr. Ratan Datta, P.P.
                                         Mr. S. Debnath, Addl. P.P.
                                         Ms. A. Chakraborty, Adv.
    Date of Hearing                :     8th February, 2022.
    Date of Pronouncement          :     16th March, 2022.
    Whether fit for reporting      :     YES


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

                                       JUDGMENT & ORDER
[Per S.G. Chattopadhyay], J

The petitioner, hereinafter referred to as the detenu, has

been detained pursuant to order No.F.15(9)-PD/2021(P-II)/2330 dated

20.08.2021 (Annexure-1 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 Prevention of Illicit Traffic in Narcotic Drugs and

Psychotropic Substances, 1988 (for short „PITNDPS‟ Act).

[2] The grounds of detention as disclosed in the impugned order

dated 20.08.2021 are as under:

[1]. From the records submitted by the Director General of Police, Tripura, it has appeared that Shri Bishu Kumar Tripura S/O Shri Malindra Tripura of Lalmaibari, Near Padmalochan High School, PS-Melagarh, Sepahijala District was involved in the following cases:

(i) Melagarh PS case No. 2020MLG028 dated 19.06.2020 under sections 148/149/353/325/427/307, IPC and section 3 of Prevention of Damage to Public Property Act and sections 20(b)(ii)(C)/29, NDPS Act.

(ii) Manu PS case No.2021MNU004 dated 30.01.2021 under sections 20(C)/29(i) of NDPS Act and, it has appeared that he is still operating through the help of his associates and supporters in transportation of NDPS articles.

[2]. The records have also disclosed that he is a repeated offender and is continuously doing illegal activities regarding transportation of NDPS articles. This is very dangerous for the society at large where several youths are heading towards drug addiction, which further decreases the national productivity in all walks of life. Despite arrest in different cases said Shri Bishu Kumar Tripura S/O Shri Malindra Tripura of Lalmaibari, Near Padmalochan High School, PS-Melagarh, Sepahijala District did

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not mend his ways and is continuously spoiling the future generation.

[3]. The person is still active in illicit trafficking of NDPS articles as revealed from field information but could not be arrested red- handed again and issue of detention order under PITNDPS will also help Police in initiating financial investigation laid down under Chapter-V(A) of NDPS Act.

[4]. It is essential to keep Shri Bishu Kumar Tripura behind the bars in the national interest since this drug addiction not only spoil the individual drug addict but also spoils the career of youths. Under the influence of drugs, youths are easily motivated toward social crimes which may further lead to communal violence, hatred among communities and even international tensions, since Tripura is having Indo-Bangladesh border. This drug addiction encourages youths to commit crimes like snatching, theft of bike, burglary, dacoit etc. when they need money to fulfill their urge for drug.

[5]. From the statement of witnesses and from the records, it has transpired that Shri Bishu Kumar Tripura has accumulated huge property at Bishramganj and Melagarh which appears to be disproportionate to his known source of income.

[6]. The Director General of Police, Tripura has proposed to prevent Shri Bishu Kumar Tripura S/O Shri Malindra Tripura of Lalmaibari, Near Padmalochan High School, PS-Melagarh, Sepahijala District from continuing his harmful and prejudicial activities by engaging himself in illicit traffic of narcotic drugs and psychotropic substances in the interest of society.

[3] The detenu was made aware of the grounds of detention

and copies of the documents relied on by the detaining authority along with

the detention order was duly served on the detenu. He made a

representation dated 28.08.2021 [Annexure-9 to the writ petition] to the

detaining authority. The said representation was rejected by the State

Government and the rejection order dated 18.09.2021 was communicated

to the detenu by the Home Secretary to the Government of Tripura

[Annexure-10 to the writ petition]. Thereafter, the State Government vide.

No.15(9)-PD/2021(P-II)/2627 dated 14.09.2021 made a reference in WP(C)(HC) No. 04 of 2021 Page - 4 of 18

respect of the matter to the State Advisory Board in terms of section 9(b) of

the PITNDPS Act. The Advisory Board opined that there were sufficient

causes for the detention of the petitioner. Pursuant to report dated

06.11.2021 of the State Advisory Board, the State Government in exercise

of power conferred under section 9(f) read with section 11 of the PITNDPS

Act confirmed the detention order for a period of 1(one) year w.e.f. the

date of his detention by order No.F.15(9)-PD/2021(P-II)/3283 dated

11.11.2021 (Annexure-12 to the writ petition) issued by the Home

Secretary.

[4] The detenu has structured his challenges to the detention

order mainly on the following grounds:

(i) The orders whereunder the detenu was granted bail in

Melagarh PS case No.2020/MLG/028 and Manu PS case No.2021 MNU

004 prior to the issuance of the detention order were not placed before

the detaining authority.

(ii) Non placement of these vital documents before the detaining

authority and non consideration of the same by the detaining authority has

vitiated the detention order because those were necessary to arrive at a

subjective satisfaction as contemplated under sub section (1) of section 3 of

PITNDPS Act for issuing detention order.

[5] In the counter affidavit filed on behalf of State respondents

1, 2, 3 and 4 by the Deputy Secretary, Home, Government of Tripura on

20.12.2021, it has been asserted that the detenu is a drug peddler against

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whom several cases have been registered. It is stated that the investigating

agency has already laid charge sheet against him in Melagarh PS case

No.2020/MLG/028 and Manu PS case No.2021 MNU 004. In the third case

lodged as Bishalgarh PS case No.2021 BLG 059 under sections 20(b)(ii)(C)

and sections 25, 27A, 29 and 32, NDPS Act, he has been granted pre arrest

bail by the High Court on 20.08.2021 and the State Government has

decided to challenge the order in SLP before the Hon‟ble Supreme Court.

Further averment made on behalf of the State respondents is that

invocation action of the provisions of PITNDPS Act against the detenu was

felt necessary to deter him from repeating commission of offences under

the NDPS Act. It has also been asserted by the State respondents that there

is no merit in the petition because all procedural safeguards prescribed

under the law has been followed by the detaining authority by affording

earliest opportunity to the detenu for making an effective representation

against the detention order and the matter was also referred to the advisory

board within the timeframe prescribed under the law and pursuant to the

report of the State advisory board the detention order was confirmed by the

State Government.

[6] A Separate counter affidavit was filed on behalf of Union of

India (respondent No.6) by B.S. Meena, Under Secretary to the Government

of India in the Department of Revenue, Ministry of Finance contending that

the State Government forwarded the detention order to the Central

Government in terms of sub section (2) of section 3 of PITNDPS Act within

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the time stipulated under said sub section (2). It was received by the

Ministry of Home Affairs of the Government of India on 26.08.2021 which,

in turn was forwarded to the Department of Revenue, Ministry of Finance. It

was asserted in the counter affidavit filed by respondent No.6 that there

were no breach of safeguards provided to the detenu under Article 22 of

the Constitution.

[7] Notice was also served on State Advisory Board (respondent

No.5) but no counter affidavit was filed on behalf of the said respondent.

[8] We have heard Mr. Sankar Lodh, learned advocate for the

petitioner and Mr. S.S. Dey, learned Advocate General appearing for the

State along with Mr. R. Datta, learned P.P, Mr. S. Debnath, learned Addl.

P.P and Ms. A. Chakraborty, advocate.

[9] Mr. Lodh, counsel appearing for the petitioner has argued

that the detention order passed by the detaining authority is liable to be

quashed mainly because bail orders whereunder detenu was released on

bail in Melagarh PS case No.2020/MLG/028 and Manu PS case No.2021

MNU 004 were not placed before the detaining authority and non

consideration of the bail orders vitiated the subjective satisfaction of the

detaining authority. To buttress his arguments, Mr. Lodh, learned counsel

has relied on the decision of the Apex Court in Rushikesh Tanaji Bhoite

vs. State of Maharashtra & Ors. reported in (2012) 2 SCC 72 wherein

the Apex Court observed that in a case where the detenu was enjoying his

freedom under the bail order passed by the court, at the time of passing the

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

detaining authority to arrive at proper satisfaction about the need of

preventive detention. Counsel has relied on the following observation of the

Apex Court in paragraph 9 and 10 of the judgment:

"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 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."

[10] Counsel has further argued that preventive detention actually

tantamounts to punishment without trial. Therefore, detaining authority

must record its subjective satisfaction in the detention order as to why

issuance of the preventive order was necessary. Counsel submits that

recourse to preventive detention cannot be taken as a substitute to an

ordinary law and where recourse to criminal proceedings would be sufficient

to deal with the crime committed by the detenu, preventive detention is not

permissible. Counsel has derived support to his contention from the decision

of the Apex Court in the case of Rekha vs. State of Tamil Nadu through

Secretary to Government & Anr. reported in (2011) 5 SCC 244 and

the decision of the Apex Court in Munagala Yadamma vs. State of

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Andhra Pradesh & Ors. reported in (2012) 2 SCC 386. In the case of

Rekha (Supra) the Apex Court observed as under:

"29. Prevention detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follows, therefore, that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal.

30. Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal."

[11] Mr. Lodh, learned counsel contends that in the case of

Munagala Yadamma (Supra) the ratio decided in the case of Rekha

(Supra) was reiterated and it was held that where the offences complained

of, can be dealt with under the ordinary law of the land, recourse to the

provisions of preventive detention is contrary to the Constitutional

guarantees enshrined in Article 22, 19 and 21 of the Constitution and

sufficient grounds have to be made out by the detaining authorities to

invoke such provisions. Counsel has relied on the following observation of

the Apex Court in paragraph 7, 8 and 9 of the judgment:

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"7. Having considered the submissions made on behalf of the respective parties, we are unable to accept the submissions made on behalf of the State in view of the fact that the decision in Rekha case [(2011) 5 SCC 244], in our view, clearly covers the facts of this case as well. The offences complained of against the appellant are of a nature which can be dealt with under the ordinary law of the land. Taking recourse to the provisions of preventive detention is contrary to the constitutional guarantees enshrined in Articles 19 and 21 of the Constitution and sufficient grounds have to be made out by the detaining authorities to invoke such provisions.

8. In fact, recently, in Yumman Ongbi Lembi Leima v.State of Manipur [(2012) 2 SCC 176] we had occasion to consider the same issue and the three-Judge Bench had held that the personal liberty of an individual is the most precious and prized right guaranteed under the Constitution in Part III thereof. The State has been granted the power to curb such rights under criminal laws, as also under the laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order.

9. No doubt, the offences alleged to have been committed by the appellant are such as to attract punishment under the Andhra Pradesh Prohibition Act, but that in our view has to be done under the said laws and taking recourse to preventive detention laws would not be warranted. Preventive detention involves detaining of a person without trial in order to prevent him/her from committing certain types of offences. But such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes which the detenue may have committed. After all, preventive detention in most cases is for a year only and cannot be used as an instrument to keep a person in perpetual custody without trial. Accordingly, while following the three-Judge Bench decision in Rekha's case [(2011) 5 SCC 244] we allow the appeal and set aside the order passed by the High Court dated 20-7-2011 and also quash the detention order dated 15-2-2011, issued by the Collector and District Magistrate, Ranga Reddy District, Andhra Pradesh."

[Italics supplied by us]

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[12] Based on the above observations of the Apex Court, counsel

contended that in Melagarh PS case No.2020/MLG/028 as well as Manu PS

case No.2021 MNU 004 the investigating agency has already laid charge

sheets against the detenu and the designated courts can very well take care

of those charges under the ordinary law and therefore, a preventive

detention order is unwarranted. Under the premises aforesaid, counsel has

urged for setting aside the preventive detention order.

[13] In order to repel the submissions made by the counsel of the

petitioner Mr. S.S. Dey, learned Advocate General has contended that the

plea raised by the detenu to challenge the order of his detention and the

points argued by the counsel of the petitioner in support of such plea are

wholly untenable. With regard to the plea raised by the counsel of the

petitioner about the the subjective satisfaction of the detaining authority,

learned Advocate General has contended that the detention order clearly

demonstrates that the detaining authority came to the conclusion about the

dire need of the preventive detention of the petitioner after considering all

the relevant materials. It has been argued by learned Advocate General that

the adequacy of the material on the basis of which the detaining authority

arrived at its satisfaction cannot also be examined in the court of law. Even

the reasonableness of the satisfaction of the detaining authority cannot be

questioned. Counsel submits that all relevant facts and documents were

considered by the detaining authority to arrive at a subjective satisfaction

and copies of all those documents were supplied to the detenu. Counsel

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further contends that the detenu was completely aware of the bail orders

passed by court in his favour in Melagarh PS case No.2020/MLG/028 and

Manu PS case No.2021 MNU 004 and therefore, non supply of the copies of

the said orders to him could in no way prejudice the detenu. Moreover, the

detaining authority has clearly indicated in the detention order that facts of

Melagarh PS case No.2020/MLG/028 and Manu PS case No.2021 MNU 004

were examined by the detaining authority for arriving at the subjective

satisfaction about the need of preventive detention of the detenu. As

contended by learned Advocate General, in this factual context, the bail

orders cannot be treated as vital documents and non consideration of such

documents has in no way vitiated the subjective satisfaction of the detaining

authority. Learned Advocate General argues that the Apex Court has held

that application for bail and an order made thereon, are not always

mandatory and such requirement would depend upon facts of each case. To

nourish his contention, counsel has relied on the decision of the Apex Court

in the case of Sunila Jain vs. Union of India & Anr. reported in (2006)

3 SCC 321 wherein the Apex Court has held as under:

"19.........................The detaining authority will have to satisfy himself on the basis of the materials placed on record, as to whether the order of preventive detention should be passed against the detenu or not. The constitutional mandate can be said to be violated, provided : (1) the impairment has been caused to the subjective satisfaction to be arrived at by the detaining authority; and (2) if relevant facts had not been considered or the relevant or vital documents have not been placed before the detaining authority.

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20. In the instant case the order of detention has been taken note of the fact that the detenu had already been released on bail in the following terms:

"You were arrested on 30-1-2003 and released on bail by the Hon‟ble Judge, Special Court of Economic Offences, Bangalore, upon executing a personal bond for an amount of Rs. 10,000/- and security in the form of cash for the like sum."

21. It is also not in dispute that a copy of the order granting bail and order of remand has been furnished to the detenu. In this view of the matter we are of the opinion that non-furnishing of a copy of the application of bail cannot be said to be a ground which impaired the subjective satisfaction of the detaining authority or the same was a relevant fact which was required to be taken into consideration by him and the application for bail was required to be supplied to the detenu. It is now well settled that all the documents placed before the detaining authority are not required to be supplied; only relevant and vital documents are required to be supplied.

22. As in the fact of this case, we are satisfied that the application for bail was not a vital document ,copy whereof was required to be supplied to the detenu, in our opinion, the order of detention is not vitiated. A Division Bench of this Court in K. Varadharaj v. State of T.N. [(2002) 6 SCC 735] upon noticing some of the decisions relied upon by Mr. Mani inter alia held:

"6. From the above observations, it is clear that placing of the application for bail and the order made thereon are not always mandatory and such requirement would depend upon the facts of each case."

[Italics supplied by us]

[14] It is contended by learned Advocate General that apparently

all documents which were vital and necessary for formation of subjective

satisfaction of the detaining authority were placed before the detaining

authority before making the detention order on the basis of which the

detaining authority arrived at the conclusion that his preventive detention

was necessary in order to prevent him from repeating the commission of

such offence. In the given facts and circumstances of the case, the bail

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orders cannot be treated as vital and material documents to arrive at a

subjective satisfaction inasmuch as such orders did not introduce any

variation in the circumstances which necessitated the preventive detention

of the detenu.

[15] In this background, the most vital question which falls for

our consideration in this case is whether the bail orders might have

influenced the detaining authority in the formation of his subjective

satisfaction and whether non placement and non consideration of the same

would vitiate the order.

[16] We have perused the entire record of the case and

considered the submissions of learned counsel representing the parties.

[17] It is not in dispute that Melagarh PS case No.2020/MLG/028

was registered against the detenu on 19.06.2020 for commission of offence

punishable under sections 148,149,353,325,427 and 307 IPC and section 3

of Prevention of Damage to Public Property Act, 1984 as well as section

20(b)(ii)(C) and section 29, NDPS Act in which the detenu was released on

pre arrest bail by an order dated 04.07.2020 of the Special Judge,

Sepahijala Judicial District in BA No.43 of 2020 and the ground of bail

recorded by the learned Special Judge is that the materials which were

placed before the court did not support his involvement in the commission

of the alleged offence. It is not also in dispute that after investigation of the

case, police laid charge sheet against the detenu. It is also an admitted

position that the detenu also got involved in Manu PS case No.2021 MNU

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004 which was registered on 30.01.2021 for commission of offence

punishable under sections 20(b)(ii)(C) and 29 NDPS Act in which he was

arrested by police and after few days of remand he was released on bail by

the Special Judge of Dhalai Judicial District by his order dated 23.03.2021

and in the said case also a supplementary charge sheet dated 21.08.2021

was filed against the detenu. Subsequently, he got involved in another case

which was registered under the Bishalgarh police stations as BLG PS case

No.059 of 2021 for commission of offence punishable under sections

20(b)(ii)(C) and sections 25, 27A, 29 and 32, NDPS Act and he was granted

pre arrest bail by this court on 20.08.2021. On the same day, the impugned

order of detention was issued.

[18] From the facts stated above, it would appear that the detenu

was granted bail in Melagarh PS case No.2020/MLG/028 and Manu PS case

No.2021 MNU 004 prior to the date on which the detention order came to

be issued. In the detention order (Annexure-1 to the writ petition) no

reference has been made to those bail orders. It is, therefore, assumed that

those bail orders were not placed before the detaining authority for his

consideration at the time of passing the detention order. Whether such non

placement and non consideration of the bail orders has affected the

subjective satisfaction of the detaining authority is the issue on which

counsel of the parties have placed arguments and counter arguments.

[19] Sub section (1) of section 3 of the PITNDPS Act postulates

that the Central Government or a State Government or any officer of the

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Central Government not below the rank of Joint Secretary who has been

specially empowered by that Government and in case of State Government,

any officer not below the rank of Secretary of that Government specially

empowered by the State Government for this purpose, if satisfied, that with

a view to preventing the person from engaging in illicit traffic in NDPS, his

detention is necessary, may make an order directing detention of such

person. With regard to "satisfaction" contemplated under sub section (1) of

section 3 of the Act, the Apex Court in a catena of decisions has observed

that the satisfaction of the detaining authority to which section 3(1) refers is

his subjective satisfaction.

[20] The argument which learned Advocate General has urged

before us is that in the given fact situation, the bail orders were not vital

documents for formation of the subjective satisfaction of the detaining

authority and as such non consideration of those bail orders has in no way

caused any impairment to the subjective satisfaction of the detaining

authority because all relevant facts and vital documents were considered by

the detaining authority at the time of passing the detention order.

[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

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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 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 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

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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 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

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authority has resulted in his non application of mind which has vitiated the

detention order passed by him.

[25] For the foregoing reasons, the petition stands allowed and

the impugned detention order dated 20.08.2021 of Bishu Kumar Tripura is

set aside.

[26] The detenu is to be set at liberty at once unless his detention

is required in any other case.

[27] In terms of the above, the writ petition stands disposed of.

Pending application(s), if any, shall also stand disposed of.

(S.G. CHATTOPADHYAY), J (INDRAJIT MAHANTY), CJ

Rudradeep

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