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TMI Blog2025 (3) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned by Article 22(3)(b) of the Constitution of India. Significantly, Article 22 also provides stringent norms to be adhered to while effecting preventive detention. Further, Article 22 speaks of the Parliament making law prescribing the conditions and modalities relating to preventive detention. The Act of 1988 is one such law which was promulgated by the Parliament authorizing preventive detention so as to curb illicit trafficking of narcotic drugs and psychotropic substances. Needless to state, as preventive detention deprives a person of his/her individual liberties by detaining him/her for a length of time without being tried and convicted of a criminal offence, the prescribed safeguards must be strictly observed to ensure due compliance with constitutional and statutory norms and requirements. 3. We may briefly note the admitted facts in the cases on hand: Three individuals, viz., Nehkhoi Guite (the driver of the vehicle) and two ladies, Hoinu @ Vahboi and Chinneilhing Haokip @ Neopi, were apprehended by the police on the night of 05.04.2024 in Khuzama village area while travelling in a Mahindra TUV Vehicle. Upon search of the vehicle, 20 soap cases of Heroin were found co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Upon considering the records and affording an opportunity of hearing to the detenus, the Advisory Board, Nagaland, submitted report dated 09.08.2024. Therein, the Board opined that there was sufficient cause for the detention of Ashraf Hussain Choudhary and Adaliu Chawang in connection with Narcotics PS Case No. 005/2024. The Government of India, through its PITNDPS Division, Department of Revenue, Ministry of Finance, rejected the representations of the detenus under Memorandum dated 27.08.2024. The Government of Nagaland then issued confirmation orders dated 02.09.2024, extending the period of detention of both the detenus till 02.12.2024. Their detention was thereafter extended from 03.12.2024 till 02.03.2025 under order dated 30.11.2024 (pertaining to Adaliu Chawang) and order dated 02.12.2024 (pertaining to Ashraf Hussain Choudhary) issued by the Chief Secretary, Government of Nagaland. 6. Notably, Ashraf Hussain Choudhary and Adaliu Chawang were granted statutory bail in Narcotics PS Case No. 005/2024 by the learned Special Judge, NDPS, Kohima, Nagaland, vide order dated 28.11.2024, as the prosecution failed to file a charge-sheet within the prescribed time. However, they s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milar activities, if set at liberty. Reference was made to the earlier decision of this Court in Binod Singh vs. District Magistrate, Dhanbad, Bihar (1986) 4 SCC 416, wherein it was held that there must be cogent material before the officer passing the detention order to infer that the detenu was likely to be released on bail and such an inference must be drawn from the material on record and must not be the ipse dixit of the officer passing such order. This Court, therefore, emphasized that before passing the detention order in respect of a person who is in jail, the concerned authority must satisfy himself and such satisfaction must be reached on the basis of cogent material that there is a real possibility of the detenu being released on bail and, further, if released on bail, the material on record must reveal that he/she would indulge in prejudicial activity again, if not detained. 9. On similar lines, in Rekha vs. State of Tamil Nadu (2011) 5 SCC 244, a 3-Judge Bench of this Court affirmed that, where a detention order is passed against a person already in jail, there should be a real possibility of the release of that person on bail, that is, he must have moved a bail appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that it would amount to satisfactory compliance. This plea was, however, rejected. The observations of the Bench in this regard read as under: "In our opinion, this was not sufficient compliance in this case with the requirements of the Constitution, as laid down in clause (5) of Article 22. To a person, who is not conversant with the English language, service of the Order and the grounds of detention in English, with their oral translation or explanation by the police officer serving them does not fulfil the requirements of the law. As has been explained by this Court in the case of State of Bombay v. Atma Ram Sridhar Vaidya [1951 SCC 43 : (1951) SCR 167] clause (5) of Article 22 requires that the grounds of his detention should be made available to the detenue as soon as may be, and that the earliest opportunity of making a representation against the Order should also be afforded to him. In order that the detenue should have that opportunity, it is not sufficient that he has been physically delivered the means of knowledge with which to make his representation. In order that the detenue should be in a position effectively to make his representation against the Order, he sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers dated 14.05.2024 and 17.05.2024 addressed by the Additional Director General of Police to the Special Secretary, Home Department, Government of Nagaland, reiterated the factum of both the detenus having been arrested on 12.04.2024 and their being in judicial custody on that date. He, however, went on to state that, if granted bail, there was a great chance of both of them continuing with illicit trafficking of narcotic drugs and psychotropic substances. There was no basis whatsoever for this ipse dixit statement, as it is an admitted fact that neither Ashraf Hussain Choudhary nor Adaliu Chawang had applied for bail at the time the detention orders were passed against them. As noted earlier, it was only on 28.11.2024 that they were granted default bail owing to the failure of the prosecution to do the needful within the prescribed time. Therefore, the edicts of this Court, referred to supra, would squarely apply as there was no material for the detaining authority to have formed an opinion that there was a likelihood of either Ashraf Hussain Choudhary or Adaliu Chawang being released on bail. 14. Further, it is an admitted fact that neither Ashraf Hussain Choudhary nor Adaliu C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds. Further, Section 3(1) also records that the authorized officer, be it of the Central Government or of a State Government, must be 'satisfied' that the person concerned required to be detained so as to prevent him/her from engaging in illicit trafficking of narcotic drugs and psychotropic substances. Such 'satisfaction' of the detaining authority necessarily has to be spelt out after application of mind by way of separate grounds of detention made by the detaining authority itself and cannot be by inference from a casual reference to the material placed before such detaining authority or a bald recital to the effect that the detaining authority was 'satisfied on examination of the proposals and supporting documents' that the detention of the individuals concerned was necessary. 17. On the aforestated analysis, we hold that the Gauhati High Court erred in the application of settled legal norms while testing the validity of the impugned detention orders. The common judgement dated 29.08.2024 passed by the Gauhati High Court dismissing the two writ petitions is accordingly set aside and the appeals are allowed. In consequence, the detention orders dated 30.05.2024 passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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