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TMI Blog2022 (10) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... detention order passed by the Government of Tripura dated 12.11.2021 and thereby affirming the order of detention. 3. It all started with a proposal dated 28th of June, 2021 submitted by the Superintendent of Police, West Tripura District, Sub-Divisional Police Officer, Amtali, West Tripura to the Superintendent of Police (C/S), West Tripura, Agartala with a request to move the appropriate authority for passing an appropriate order of detention under the provisions of the PIT NDPS Act. 4. The proposal reads thus:- "GOVERNMENT OF TRIPURA OFFICE OF THE SUB DIVISIONAL POLICE OFFICER WEST TRIPURA, AGARTALA No. 1445/SDPO(AMT)/21 To Dated, 28th June, 2021 The Superintendent of Police (C/S), West Tripura, Agartala. Subject: Proposal for Preventive Detention order of accused Susanta Kumar Banik, S/o. Lt. Shanti Ch. Banik of Siddhiashram, Badharghat, Kalimata Sangha, near Railway Station, PS Amtali, West Tripura U/-3 of PIT NDPS Act, 1988. Sir, With reference to the subject cited above, it is to inform that I am submitting a proposal for issuance of preventive detention order against the accused Susanta Kumar Banik, S/o. Lt. Shanti Ch. Banik of Siddhiashram, Badharghat, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 52/2021. It shows his determination is 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 subject. The appropriate authority may please be moved to issue detention order against Susanta Kumar Banik, S/o. Lt. Shanti Ch. Banik of Siddhiashram, Badharghat, Kalimata Sangha, near Railway Station, PS-Amtali, West Tripura U/s-3 of PIT NDPS Act, 1988 to prevent him from engaging in illicit trafficking of narcotic drugs and psychotropic substances further. Yours sincerely, Enclo: List of relied documents. Sd/- 28/6/21 (Anirban Das) Superintendent of Police, West Tripura District, Sub-Divisional Police Officer Amtali, West Tripura." 5. The Secretary (Home Department), Government of Tripura acting on the proposal dated 14.07.2021 forwarded by the Director General of Police proceeded to pass the detention order dated 12.11.2021 which reads thus: "No. F. 15(9)- PD/2021(III) GOVERNMENT OF TRIPURA HOME DEPARTMENT 12th November, 2021 ORDER Wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. AND Whereas, Director General of Police, Tripura has proposed to prevent Shri Sushanta Kumar Banik, S/o. Late Shanti Ch. Banik of Siddhiashram, Badharghat, Kalimata Sangha, near Agartala Railway Station, PS-Amtali, West Tripura from continuing his harmful and prejudicial activity by engaging in illicit traffic of narcotic drugs and psychotropic substances in the interest of society. AND Now, therefore, the undersigned, being the specially empowered officer of the State Government in exercise of powers conferred by sub-section (1) of section (3) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 and careful examination of the proposal of the Director General of Police, Tripura and other supporting documents, found sufficient grounds for detention of Shri Sushanta Kumar Banik and being satisfied that with a view to preventing him from engaging in illicit traffic in NDPS, it is necessary to detain him and ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein for the offences punishable under Sections 22(b)/22(C)/29 and 21(B) resply of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act, 1985') and is a habitual offender. The first FIR is dated 05.11.2019 and the second FIR is dated 25.04.2021. At the end of the investigation of the FIR dated 05.11.2019, the charge sheet came to be filed and the trial is pending as on date. The investigation so far as the FIR dated 25.04.2021 is concerned, the same is shown to have been pending on the date of the proposal. However, what is important to note is that in both the aforesaid cases registered under the NDPS Act, 1985, the appellant herein was ordered to be released on bail by the Special Court, Tripura. 7. The appellant questioned the legality and validity of the detention order by filing the Writ Petition (Civil) No. 6 of 2021 in the High Court of Tripura at Agartala. The High Court vide the impugned judgment and order dated 01.06.2022 rejected the writ application thereby affirming the order of preventive detention. 8. In such circumstances referred to above, the appellant (detenu) is before this Court with the present appeal. ANALYSIS: 9. We have heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rotection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing." 14. In view of the above object of the preventive detention, it becomes very imperative on the part of the detaining authority as well as the executing authorities to remain vigilant and keep their eyes skinned but not to turn a blind eye in passing the detention order at the earliest from the date of the proposal and executing the detention order because any indifferent attitude on the part of the detaining authority or executing authority would defeat the very purpose of the preventive action and turn the detention order as a dead letter and frustrate the entire proceedings. 15. The adverse effect of delay in arresting a detenu has been examined by this Court in a series of decisions and this Court has laid down the rule in clear terms that an unreasonable and unexplained delay in securing a detenu and detaining him vitiates the detention order. In the decisions we shall refer hereinafter, there was a delay in arresting the detenu after the date of passing of the order of detention. However, the same principles would apply even in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile dealing with this submission, made the following observation: "Now, there can be no doubt--and the law on this point must be regarded as well settled by these two decisions--that if there is unreasonable delay between the date of the order of detention and the date of arrest of the detenu, such delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate and it would be a legitimate inference to draw that the District Magistrate was not really and genuinely satisfied as regards the necessity for detaining the petitioner." 18. Chinnappa Reddy, J. speaking for the Bench in Bhawarlal Ganeshmalji v. State of Tamil Nadu, (1979) 1 SCC 465, has explained as follow: "It is further true that there must be a "live and proximate link" between the grounds of detention alleged by the detaining authority and the avowed purpose of detention namely the prevention of smuggling activities. We may in appropriate cases assume that the link is "snapped" if there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu. In such a case, we may strike down an orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er & though this point of delay was specifically raised & argued before the High Court as evident from Para 14 of the impugned judgment yet the High Court has not recorded any finding on the same. VITAL MATERIAL OR VITAL FACT WITHHELD AND NOT PLACED BY THE SPONSORING AUTHORITY BEFORE THE DETAINING AUTHORITY 22. As noted above, in the case on hand, in both the cases relied upon by the detaining authority for the purpose of preventively detaining the appellant herein, the appellant was already ordered to be released on bail by the concerned Special Court. Indisputably, we do not find any reference of this fact in the proposal forwarded by the Superintendent of Police, West Tripura District while requesting to process the order of detention. The reason for laying much stress on this aspect of the matter is the fact that the appellant though arrested in connection with the offence under the NDPS Act, 1985, the Special Court, Tripura thought fit to release the appellant on bail despite the rigours of Section 37 of the NDPS Act, 1985. Section 37 of the NDPS Act, 1985 reads thus: "Section 37. Offences to be cognizable and non-bailable.-(1) Notwithstanding anything contained in the Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ending against the person who is sought to be proceeded against by way of preventive detention is a very material circumstance which ought to be placed before the District Magistrate. The circumstance might quite possible have an impact on his decision whether or not to make an order of detention. It is not altogether unlikely that the District Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be detained, no order of detention should be made for the present, but the criminal case should be allowed to run its full course and only if it fails to result in conviction, then preventive detention should be resorted to. It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case against him to the District Magistrate." 26. From the above decisions, it emerges that the requisite subjective satisfaction, the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influence his mind are either withhel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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