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TMI Blog2022 (6) TMI 1311X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 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 document which have been referred to in the detention order merely for the purpose of narration of facts. 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 - It emerges from the record that the detenue put his signature on the said document in acknowledgment 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. [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 au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A 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 [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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 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 detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner 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, 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 as have been relied on by the detaining authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the detenue on 19.11.2021 along with a separate document signed by the detaining authority which contains the detailed grounds of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 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(s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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