Tripura High Court
Sri Rana Dutta vs The Chairman on 19 December, 2019
Author: A. Lodh
Bench: Akil Kureshi, Arindam Lodh
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THE HIGH COURT OF TRIPURA
AGARTALA
WP(CRL) 7 OF 2019
Sri Rana Dutta,
Son of Sri Ramu Dutta,
Resident of Office Tilla,
P.O. Bishalgarh,
P.S. Bishalgarh,
District-Sepahijala Tripura
...................Petitioner
- Vs -
1. The Chairman, Advisory Board,
Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988,
Represented by the Secretary, Advisory Board
State of Tripura, Agartala, Tripura(W).
2. The Secretary of Home Department
Represented by State Govt. of Tripura,
New Secretariat Building,
New Capital Complex, Agartala
Tripura West
3. The Director General of Police,
Police Head Quarter Complex,
Agartala, West Tripura
4. The Superintendent of Police
Sepahijala, Bishramganj,
Dist-Sepahijala.
....Respondents
BEFORE HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE ARINDAM LODH For the Petitioner : Mrs. S. Deb(Gupta), Advocate.
For the respondents : Mr. A.K.Bhowmik,
Advocate General.
Mr. Ratan Datta, P.P.
Mr. K. De, Addl. G.A.
Date of hearing : 16.12.2019
Date of delivery of : 19.12.2019
Judgment & Order
Whether fit for reporting : NO
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JUDGMENT & ORDER
(A. Lodh, J.)
By means of filing the present petition, in the nature of habeas corpus, the petitioner has prayed for quashing the order of detention under Sub Section (1) of Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (here-in-after referred to as the PITNDPS Act), issued by the Additional Secretary, Department of Home, Government of Tripura vide Order No.F.15(09)-PD/2018(P- II)/4199 dated 26.12.2018.
2. The facts, which are said to have led to the quashing of the detention order, are briefly summarized here-under:
The petitioner, namely Rana Datta was detained by Srinagar Police personnel on 20.10.2018 in connection with Srinagar P.S. Case No.05/2018 under Section 21(C) of NDPS Act and subsequently he was also shown arrest on 11.12.2018 in connection with Madhupur P.S. Case No.36/2018 under Sections 22(C)/25/29 read with Section 8 of NDPS Act. The petitioner alleged that he was innocent and he has been falsely implicated in those cases. The petitioner was implicated only on the basis of the interrogation report of other accused persons. He has claimed that though he was arrested in both the cases, but, the I.O. has not made any prayer to record his statement under Section 164 of CrPC. The petitioner has further stated that the detention order vide No.F.15(09)-PD/2018(P-II)/4199 dated 26.12.2018 was 3 passed against the petitioner unnecessarily with some unjustified reasons only to harass the petitioner.
3. The petitioner has further submitted that on 15.12.2018, learned Special Judge, Court No.2, West Tripura, Agartala in case No. Special NDPS 02/2018 corresponding to Srinagar PS Case No.05/2018 passed an order directing the I.O. of the case to satisfy the Court on the next date some points for further justification of the accused person and those points are as follows:
i) Whether the accused has got any go-down of his own in any place? If so the details of the same?
ii) Whether during investigation I.O. has collected any evidence that the accused at any point of time has stored contraband items in his alleged go-down for the purpose of sell or any other purpose?
iii) What definite evidence is collected by I.O. in this case against this accused showing his direct involvement with the office punishable u/s 21(c) of NDPS Act?
iv) If there is any abatement or conspiracy on the part of the accused to commit crime? If so the details of the abatement or conspiracy, be submitted before this Court on the next date.
But, the I.O. failed to produce any document that whether the petitioner has any go-down or not. 4
4. However, the main controversy arises in this petition is that though the detention order was issued on 26.12.2018, but, the copy of the said order was communicated to the petitioner on 29.01.2019 i.e. after the prescribed statutory period of 15(fifteen four) days in compliance with Sub-Section (3) of Section 3 of the PITNDPS Act.
5. Mrs. S. Deb(Gupta), learned counsel appearing for the petitioner has submitted that it is mandatory to supply the copy of the detention order as soon as it may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention.
6. Mrs. Deb(Gupta), learned counsel has further contended that the police personnel who detained the petitioner had violated the provision of Article 22(5) of the Constitution of India because as per Article 22(5) "when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order" .
7. Next, Mrs. Deb(Gupta), learned counsel has contended that from the order dated 12.02.2019 passed by the Advisory Board, PITNDPS Act it is crystal clear that the detention of the petitioner was communicated to him only on 29.01.2019 5 and in that way he was languishing in jail illegally and unnecessarily.
8. In view of such submission, we have given our conscious thought to the detention order as well as the communication. Before adverting to the merit of the case, we may take note of the said law in this regard. In Usha Agarwal Vrs. Union of India & Ors., (2007) 1 SCC 295, the Apex Court while interpreting the scope of Clause(5) of Article 22 has observed thus:-
"21. The scope of Clause (5) of Article 22 which provides that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against such order, has been examined in several decisions. Interpreting the said provision, this Court in Sk. Abdul Karim vs. the State of West Bengal [AIR 1969 SC 1028], held as follows :-
"Apart from those enabling and disabling provisions certain procedural rights have been expressly safeguarded by Clause (5) of Article 22. A person detained under a law of preventive detention has a right to obtain information as to the grounds of detention and has also the right to make a representation protesting against an order of preventive detention. Article 22(5) does not expressly say to whom the representation is to be made and how the detaining authority is to deal with the representation. But it is necessarily implicit in the language of Article 22(5) that the State Government to whom the representation is made should properly consider the representation as expeditiously as possible. The constitution of an Advisory Board- under Section 8 of the Act does not relieve the State Government from the legal obligation to consider the representation of the detenu as soon as it is received by it. On behalf of the respondent It was said' that there was no express language in Article 22(5) requiring the State Government to consider the representation of the detenu. But it is a necessary implication of the language of Article 22(5) that the State Government should consider the representation 6 made by the detenu as soon as it is made, apply its mind to It and, if necessary, take appropriate action. In our opinion, the constitutional right to make a representation guaranteed by Article 22(5) must be taken to include by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made. The right of representation under Article 22(5) is a valuable constitutional right and is not a mere formality."
22.In Rashid Sk. vs. State of West Bengal [AIR 1973 SC 824], this Court interpreting the words 'as soon as may be' occurring in clause (5) of Article 22, held as follows :
"The use of the Words "as soon as may be" is important. It reflects the anxiety on the part of the framers of the Constitution to enable the detenu to know the grounds on which the order of his detention has been made so that he can make an effective representation against it at the earliest. The ultimate objective of this provision can only be the most speedy consideration of his representation by the authorities concerned, for, without its expenditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. This right to represent and to have the representation considered at the earliest flows from the constitutional guarantee of the right to personal liberty - the right which is highly cherished in our Republic and its protection against arbitrary and unlawful invasion."
Now, whether or not the State Government has in a given case considered the representation made by the detenu as soon as possible, in other words, with reasonable dispatch, must necessarily depend on the facts and circumstances of that case, it being neither possible nor advisable to lay down any rigid period of time uniformly applicable to all cases. The Court has in each case to consider judicially on the available material if the gap between the receipt of the representation and its consideration by the State Government is so unreasonably long and the explanation for the delay offered by the State Government so unsatisfactory as to render the detention order thereafter illegal"
23.In Kamleshkumar Ishwardas Patel vs. Union of India [1995 (4) SCC 51], this Court observed thus :-
"Construing the provisions of Article 22(5) we have explained that the right of the person detained to make a representation against the order of detention comprehends the right to make such a representation to the authority which can grant such relief, i.e., the authority which can revoke the order of detention and set him at liberty and since the officer who has made 7 the order of detention is competent to revoke it, the person detained has the right to make a representation to the officer who made the order of detention. The first premises that such right does not flow from Article 22(5) cannot, therefore, be accepted."
This Court has also repeatedly held that though there can be no specific or mechanical test for determining whether there has been undue delay, where there is an unexplained delay in either making the order or serving the order, it would vitiate the order of detention."
9. What we find in this case is that though the detention order was issued on 26.12.2018 it was provided to the petitioner on 29.01.2019 i.e. the day much after period of 5(five) days as prescribed under sub-section (3) of Section 3 of PITNDPS Act. The Legislature in their best wisdom has given some relaxation to the authorities concerned that in exceptional circumstances they may provide the copy of the order of detention within 15(fifteen) days but with a clear and specific rider that in that circumstance the authorities concerned are to justify the exceptional circumstance and in that case the authorities concerned has to record reasons in writing for the delay caused in supplying the copy of the detention order to the detenu. Here, we have noticed that the detaining authority has failed to provide the copy of the detention order as soon as the order of detention was issued against the petitioner and even the detaining authority has failed to provide the copy of the detention order within 5(five) days or within 15(fifteen) days. Further, noticeably, though the detention order was made available to the petitioner first on 29.01.2019 but the said copy did not reflect the 8 reasons for such inordinate delay in violation of the provisions of Sub-Section(3) of Section 3 of PITNDPS Act.
10. However, after receipt of the detention order, as stated earlier, the petitioner had submitted a representation before the Home Secretary to the Government of Tripura and also before the Advisory Board, PITNDPS Act on 18.12.2019, but, no satisfactory order was passed by the Home Department or by the Advisory Board, PITNDPS Act, apart from one order vide No.F.15(9)-PD/2018(P-II) dated 17.04.2019.
11. In this situation, we may profitably refer a decision of the Apex Court in Adiswar Jain Vrs. Union of India & Anr., (2006) 11 SCC 339 wherein the Apex Court has held thus:-
"14.The question came up for consideration recently in Rajinder Arora v. Union of India and Others [(2006) 4 SCC 796] wherein it has been held:
"20.Furthermore no explanation whatsoever has been offered by the Respondent as to why the order of detention has been issued after such a long time. The said question has also not been examined by the authorities before issuing the order of detention.
21.The question as regard delay in issuing the order of detention has been held to be a valid ground for quashing an order of detention by this Court in T.D. Abdul Rahman v. State of Kerala and others [AIR 1990 SC 225] stating:
"10The conspectus of the above decisions can be summarised thus: The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending 9 acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case.
11.Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner."
22.The delay caused in this case in issuing the order of detention has not been explained. In fact, no reason in that behalf whatsoever has been assigned at all."
12. Recently, a Division Bench of this Court in WP(C)(HC) 3 of 2019, titled as Golam Hossain @ Golab @ Golap vs. State of Tripura & Ors. was confronted with a similar question and had observed thus:
"28. We have given our thoughtful consideration to the object of the Act that the provisions of the NDPS Act have been stringent to strengthen the existing control over drug abuse and to prevent the menace of illicit trafficking of narcotic drugs and psychotropic substances. It is now a well-settled principle of law that the more stringent is the law, more strict construction thereof would be necessary. As such, according to us Sub-Section (3) of Section 3 is mandatory in nature. As we said earlier, there are three phases of the said provision that the grounds of detention has to be communicated to a detenu within 5(five) days of his 10 detention. However, some exceptions are provided in the provision itself that if it is not possible to provide copy along with grounds of detention within the period of 5(five) days then the detaining authority may provide the copy after expiry of said 5(five) days but with a rider that in the circumstance, the detaining authority has to assign reasons in writing and again another rider has been given that it also must be within 15 (fifteen) days, from the date of detention.
29. In our opinion, the legislature while enacting the Act was well aware of the fact that in all cases it might not be possible to make the copy along with the grounds available to a detenu within 5(five) days and with that object and view they permitted discretionary power upon such authority to provide such copy after the expiry of 15(fifteen) days, in that case the authority had to record its reasons in writing and it also must be within 15(fifteen) days, from the date of such detention. Keeping the provision as stringent, the legislatures in their own wisdom had made further rider that, in that case too, the communication had to be made not later than 15 days, from the date of such detention.
30. The riders inserted in Sub-Section (3) of Section 3 of the PITNDPS Act, in our considered view, clearly mandates that the authorities concerned must follow and observe each and every mandates expressed unequivocally therein and any violation of such mandates would vitiate the entire process keeping in view the constitutional mandate of right to life and personal liberty as guaranteed under Article 21 of the Constitution of India.
32. The phraseology "not later than 15 days", according to us, has wider amplitude and should not be construed narrowly. The legislatures with well-thought 11 mind consciously had phrased the sentence as "not later than 15 days". The framers would have easily phrased it as "within 15 days" instead of designing the same "not later than 15 days". In our thoughtful consideration, the language of the provision was so crafted that the legislature with a view to achieve a distinct object wanted to bind the authorities concerned with the bounden liability to communicate their decision within the period "not later than 15 days", if not within 5 days and this exhortation is aimed to extend supplementary benefit to the detenu."
13. In the instant case, as we have already held that the decision of the State Government to detain the petitioner vide order dated 26.12.2018 was not communicated to the petitioner within 5(five) days and it was made available to him on a much later date even beyond the period of 15 (fifteen) days and without having taken care of the mandate, that in that circumstance, the detaining authority must record its own reasons with such explanation in support of causing delay. The detaining authority was also under mandatory obligation to justify the exceptional circumstances, which prevented them to make such communication within the mandatory period. What appears more shocking to us, in the context of the case, is that the detaining authority being the appropriate authority i.e. the State- respondents, after the receipt of representation dated 18.02.2019 submitted by the petitioner, had confirmed the order of detention on 17.04.2019, the copy of which was supplied to the petitioner only on 02.05.2019.
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14. Mr. A.K. Bhowmik, learned Advocate General appearing for the State respondents has contended that there was no unreasonable delay in supplying the copy of the detention order.
15. In our opinion, State-respondents have failed to justify showing any cogent reasons from the available records of such inordinate delay to pass order of rejection of the representation of the petitioner. It is utter violation of the statutory mandate as discussed here-in-above.
16. Situated thus, we have no other alternative, but, to hold that the detention of the petitioner is absolutely illegal and arbitrary and hence, the petitioner be released forthwith.
17. Ordered accordingly.
18. The petition accordingly stands disposed.
JUDGE CHIEF JUSTICE