SUPREME COURT DIRECTS RELEASE OF ACCUSED ON THE GROUNDS OF UNREASONABLE DELAY BY AUTHORITY IN PASSING THE DETENTION ORDER

Accentuating that “Preventive Detention is a serious invasion of personal liberty”, a 3 Judge Bench of Supreme Court comprising of Chief Justice of India U. U. Lalit, Justice Ravindra Bhat and Justice J B Pardiwala, passed a Judgment dated 30.09.2022 in the case titled as Sushanta Kumar Banik v. State of Tripura & Ors. in Criminal Appeal No. 1708 Of 2022 and ruled that an unreasonable and unexplained delay in passing the order of detention can vitiate the Detention Order and that there should be “live and proximate link” between the grounds of detention and the purpose of detention.

Facts:

In the present case, the Secretary (Home Department), Government of Tripura, pursuant to the Proposal dated 14.07.2021 forwarded by the Director General of Police, passed an Order of Preventive Detention against Shri Sushanta Kumar Banik (Appellant) dated 12.11.2021 under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PIT NDPS Act) (Power to make orders detaining certain persons) on the following grounds:

(i) He was charge sheeted in Amtali PS Case No.2019/AMT/208 dated 05.11.2019 under Section 22(b), 22(c) and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), which was registered following seizure of 92 gm brown sugar (Heroin) and 7600 nos yaba tablets. Investigation of the case has revealed that he was involved in running illegal business of narcotic drugs throughout the State and outside the State.

(ii) He again got involved in East Agartala PS Case No. 2021 EAG 052 dated 25.04.2021 under Section 21(B) and 29 of NDPS Act wherein on 25.04.2021 the said Appellant was again caught red handed with possession of one pouch filled with suspected heroin along with cash Rs. 20,400/- and android mobile phone.

(iii) He has association with the smugglers of NDPS articles and illicit drug traffickers in connection with the two aforesaid cases. He is a kingpin in illegal trafficking of narcotic drugs inside the State as well as outside the State. Apart from this, he did not stop his illegal activities of narcotic drugs and psychotropic substances even after his arrest in the aforesaid cases.

(iv) He 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.

Pursuant to the Order dated 12.11.2021, he was detained on 19.11.2021 under Section 3(1) of the PIS NDPS Act. The State Government referred the matter to the State Advisory Board (Board) constituted under Section 9(a) of the NDPS Act which sustained the Detention Order on the ground that he was involved in consistent and continuous criminal activities and thereby he has kept the society around him under threat. Also, despite the fact that the Appellant was given intimation of his right to representation, he did not submit his representation against the said Order. The State Government vide Order dated 28.01.2022 confirmed the Order of the Board.

High Court

Aggrieved by the aforesaid Order of the State Government dated 28.01.2022, a Writ Petition (Civil) No. 6 of 2021 in the nature of Habeas Corpus was subsequently filed by the Petitioner-Appellant (Detenue) before the High Court of Tripura at Agartala (High Court), challenging the legality and validity of the Detention Order passed by the State government and seeking his release from detention.

Ms. Madhumita Banerjee, Learned Counsel of the Petitioner-Appellant contended 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. Further, the Petitioner-Appellant 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 which renders the Order of Detention invalid and illegal. The Counsel further contended that the Detaining Authority at no stage followed the safeguards under Article 22(4) and (5) of the Constitution (Protection against arrest and detention in certain cases), hence the Order is liable to be set aside and quashed.

On the other hand, appearing for the State, Learned Advocate General argued that the Detention Order was issued against the Petitioner-Appellant 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. 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.

The High Court vide Impugned Order dated 01.06.2022 dismissed the Writ Petition by observing that 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. It further stated that unless he can show how he was prejudiced by non-supply of a particular document, he could not gain any benefit merely by agitating that a document mentioned in the Detention Order was not supplied to him.

Supreme Court

Aggrieved by the Order of the High Court dated 01.06.2022, the Appellant filed a Criminal Appeal No. 1708 of 2022 before the Apex Court.

The Supreme Court made the following observations:

1. The Proposal to take steps to preventively detain the Appellant is dated 28.06.2021. The Order of Detention is dated 12.11. 2021. There is no explanation worth name why it took almost five months for the Detaining Authority to pass the Order of Preventive Detention.
2. The ‘live and proximate link’ between grounds of detention and purpose of detention stood snapped in arresting the Detenu and hence the delay has not been explained in any manner. The same principles would apply even in the case of delay in passing the Order of Detention from the date of the Proposal.
3. Though the issue of delay was specifically raised and argued before the High Court as evident from Para 14 of the Impugned Judgment, the High Court has not recorded any finding on the same.
4. Further, 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 rigours of the Section 37 of the NDPS Act and the Detaining Authority remained oblivious of the said fact.

The Bench placed reliance on the decision in the case of Ashok Kumar vs Delhi administration (1982) 2 SCC 403 and further observed that “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.”

The Apex Court, therefore, vide Judgment dated 30.09.2022 allowed the Appeal filed by the Appellant by setting aside the Impugned Judgment and Order of the High Court dated 01.06.2022 and ordered to release the Appellant forthwith from the police custody.

Manisha Popli

Associate

The Indian Lawyer