Shivbodh Kumar Mishra Alias Shiv Bodh ... vs The Union Of India And 4 Others on 5 May, 2023

[Cites 23, Cited by 3]

Allahabad High Court

Shivbodh Kumar Mishra Alias Shiv Bodh ... vs The Union Of India And 4 Others on 5 May, 2023

(Per : Hon'ble Rahul Chaturvedi, J.) (1). Heard Shri Vimlendu Tripathi, learned counsel for the petitioner; Shri Krishna Agarawal, learned counsel for respondent nos.1, 2 & 3 and also learned Additional Government Advocate for respondent nos.4 and 5. We have gone through the entire materials brought before us.

(2). Pleadings have been exchanged between the parties and the matter is ripe for final submission by the respective learned counsels.

(3). Instant Habeas Corpus Writ Petition by above named petitioner, who is invoking constitutional remedy under Article 226 of the Constitution of India, whereby the petitioner Shivbodh Kumar Mishra @ Shiv Bodh Mishra has sought the following prayer :-

"issue a Writ of Habeas Corpus commanding all the respondents to release the petitioner from his illegal detention in pursuance of the detention order dated 04.03.2022 (Annexure No.1) passed by respondent no.3 under section 3(1) of the PITNDPS Act, 1988 and to set the petitioner at liberty forthwith, and may further be pleased to quash the impugned order dated 04.03.2022 passed by the respondent no.3 of the writ petition."

(4). Thus, from the above prayer, it is clear that petitioner has sought a command and direction from this Court to release him from illegal detention pursuant to order passed by the respondent no.3 dated 04.03.2022 u/s 3(1) of "Prevention of Illegal Traffic in Narcotic Drug and Psychotropic Substance Act, 1988" (for the sake of brevity hereinafter referred to as 'PITNDPS Act') and the petitioner may be set at liberty forthwith after quashing the order impugned dated 04.03.2022.

FACTUAL BACKGROUND :-

(5). Before entering into the merits of the case, it is imperative to have a bird's eye view to the controversy involved and the alleged criminal antecedents of petitioner, which are as follows :-

(I) On 04.01.2016 the Zonal Director, NCB Lucknow after receiving a tip from his sources that 4-5 persons coming from Bihar on a truck, bearing registration No.HR-55-J-2062 and a Mahindra Scorpio car bearing registration No.BR-03-P-8311, are likely to deliver a consignment of illegal 'Ganja' to the petitioner near Nawabganj Bypass situated at Allahabad Lucknow Road around 01.00 in the day on 04.01.2016. On receiving this information, a team consisting of NCB officials intercepted the aforesaid vehicle and recovered 312.045 kgs of Ganja. In this operation total 8 persons were nabbed, though the petitioner was sitting in Mahindra Scorpio Car No.BR-03-P-8311. Accordingly, a criminal case was filed by NCB Lucknow having Criminal Case No.42 of 2016, u/s 8, 20, 29 of N.D.P.S. Act before the District & Session Judge, Allahabad on 29.6.2016.

It is contended by learned counsel for petitioner that after great deal and efforts, the petitioner was eventually let loose on bail by this Court vide order dated 05.03.2020 while allowing his Third Bail Application No.3604 of 2020 and thereafter the petitioner was bailed out after completing the necessary formalities, furnishing the bail bonds and sureties.

(II) After being released on bail, the petitioner started attending the court's proceeding and co-operating with the trial of Crl. Case No.42 of 2016. On 25.10.2020 he was again apprehended along with three other persons while travelling on a Swift Desire car along with Surajpal Soni, Vijay Kesarwani and Sanjay Kesarwani. After being searched out, a total quantity of 170 kgs of Ganja was recovered. In respect of this incident, an FIR was lodged on 25.10.2020 as Case Crime No.177 of 2020, u/s 8 & 20 of NDPS Act, Police Station Mahewaghat, District Kaushambi.

It is interesting to mention here that, petitioner again preferred a Bail Application No.83 of 2020 in aforesaid case crime which was allowed by the Additional Sessions Judge (POCSO Act), Kaushambi vide order dated 18.12.2020.

(6). These aforementioned are only two cases in which the petitioner was arrested and later on was bailed out on 05.03.2020 and 18.12.2020 respectively. Except above mentioned two cases, there is no other cases to the credit of petitioner.

(7). It has been strenuously argued by learned counsel for the petitioner that after being released on bail vide order dated 18.12.2020, the petitioner has never indulged into any offence, much less than the cases of NDPS Act, till he was bombarded by impugned detention order dated 04.03.2022, signed by Shri Ravi Pratap Singh, Joint Secretary, Government of India, Ministry of Finance, Department of Revenue (PITNDPS Unit) u/s 3(1) of the PITNDPS Act, 1988.

(8). On this score, Shri Vimlendu Tripathi, learned counsel has hammered his submission by making a mention that except aforementioned two cases in which the petitioner was bailed out lastly on 18.12.2020 till the impugned order is passed on 04.03.2022, there was no material with respondent authorities which could justify their conduct for proceeding against the petitioner under the PITNDPS Act. It is further contended by learned counsel that the petitioner is rendering fullest cooperation before the trial court, but for the reasons best know to the respondent authorities, off late at unknown time and date they have proceeded in a clandestine fashion in order to book the petitioner under the aforesaid preventive Act. There is no justification on the part of respondent authorities to justify their instant action under PITNDPS Act.

(9). In para-12 of the petition, it has been mentioned that on 25.4.2022 when the petitioner had gone to attend the date fixed in aforementioned case in District Court Allahabad, where he was illegally arrested from the District Court Allahabad itself. The police brought the petitioner to Police Station Saraiakil, District Kaushambi and thereafter admitted him to District Jail, Lucknow in the night of 27.4.2022.

(10). On this factual background, learned counsel for the petitioner has contended that a person who is being arrested on 25.4.2022, was booked to District Jail, Lucknow in the night of 27.4.2022 after two days of his alleged arrest, that too at District Jail, Lucknow. This is a gross violation of Section-4 of PITNDPS Act, which speaks that a detention may be executed at any place in India in the manner provided for the execution of warrant of arrest under the Code of Criminal Procedure, 1973. Thus, there is no justification coming forward about the delay of two days after the factual arrest of petitioner and not producing him before the concerned Magistrate within 24 hours and thereafter dumping him to the District Prison at Lucknow.

(11). Yet another issue raised by learned counsel for the petitioner, is that the Joint Secretary, Government of India, specially empowered u/s 3(1) of PITNDPS Act, has passed the order for detaining the petitioner illegally on 4.3.2022 and keep him in District Jail, Lucknow. This order of detention is a blanket and baseless, without containing any ground of detention which was served upon the petitioner only after seven weeks i.e. on 27.4.2022 for the reasons best know to the authorities concerned.

(12). As mentioned above, the arrest was effected pursuant to the order dated 4.3.2022 passed by the Joint Secretary, Government of India; but as late as on 27.4.2022 a copy of detention order along with the 'so-called' grounds of detention were served upon the petitioner. Submitted by counsel that this detention order dated 4.3.2022 came out of blue and petitioner remain clueless as to what went wrong after 18.12.2020, when he was bailed out. The petitioner could not think in his wildest dream that the authorities were preparing the papers/documents to book him under PITNDPS Act in a clandestine way.

(13). As mentioned above, after the release of petitioner on bail on 18.12.2020, there is not a single case to the credit of petitioner. Thus, factually speaking, from the date when the petitioner was released on bail i.e. 18.12.2020 up to the date of passing of impugned detention order i.e. 04.03.2022, there is no material on record to justify the respondent authorities to initiate preventive proceeding under the PITNDPS Act, that too, after delay of almost one year and four months. On this premise, it has been argued by learned counsel for the petitioner that there is no near proximity or legal justification to initiate the present proceeding under the Act of 46 of 1988. It is further asserted by the learned counsel for the petitioner that after the lapse of considerable time, all of a sudden the respondent authorities woke up from slumber and on 4.3.2022 pasted the detention order u/s 3(1) of PITNDPS Act on the back of the petitioner.

(14). Learned counsel for the petitioner has drawn attention of the Court to Ground No.2, on that basis the detention order F.No.U-11011/05/2022-PITNDPS dated 4th March, 2022 has been issued against the petitioner. For ready reference ground no.2 of the detention order is being reproduced as under :

"2. There are intelligence inputs that you i.e. Shri Shivbodh Kumar Mishra @ Shiv Bodh Mishra are again indulging in trafficking of narcotics drugs after you were released from the jail. It clearly shows that you are a habitual offender and not going to mend your ways but continue to be in drug trafficking. You have deep involvement and have continued propensity for trafficking of narcotics and Psychotropic Substances."

(15). After a plain reading of aforementioned ground, learned counsel for the petitioner hammered his submission, that simply after referring to the previous credentials of two cases against the petitioner, the detention order has been passed. This ground contains a lots of gray areas which has been exploited against the petitioner for curtailing his rights of personal liberties and his freedom, guaranteed in Part-III of the Constitution of India. The ground that 'his deep involvement and continued propensity for trafficking of narcotics and Psychotropic Substances' goes haywire, when there is no criminal credentials of the petitioner, after his release on bail i.e. 18.12.2020. The provisions of Section 3(1) of PITNDPS Act are not only words but it carries deep rooted significance. The satisfaction of the authorities must be based on concrete and tangible grounds and his satisfaction must be subjective satisfaction. Only using the expression "satisfaction" in the detention order looses its significance, if it is not based on tangible evidence or there is no proximity or live link between the alleged offence of the petitioner and the preventive detention order.

(16). It is next contended by learned counsel for the petitioner that this ground of detention is not accompanied by the alleged report of sponsoring authority i.e. NCB, Lucknow, which forms the very basis of the illegal detention of petitioner, which has been knitted and likely to go to shambles. Yet another significant aspect of the issue is the alleged ground of detention, it is supposed to be based on the complete material relied by detaining authority. If the very basis of detention is missing, relying upon which the sponsoring authority passed an order of detention and allegedly furnishes the 'so called' grounds of detention, then to expect that the petitioner would give an effective representation, is simply a dream and would be stark contrast of basic tenets of Natural Justice. However, after guessing the so-called grounds, a representation was got prepared by the petitioner relying upon the limited material in the shape of ground and same was placed on 13.5.2022 to the authority concerned. Interestingly, said representation of the petitioner was rejected by respondent no.2 and was duly communicated by means of a memorandum dated 3.6.2022, whereby the petitioner was informed that his representation dated 13.5.2022 was outrightly rejected by the detaining authority without assigning any good reason for the same.

(17). On 5.6.2022, a copy of order dated 3.6.2022 issued by the subordinate of respondent no.1, informing the petitioner that his representation has been rejected by the detaining authority vide order dated 3.6.2022.

(18). On 4.7.2022 the petitioner was informed that the date of hearing fixed before the Advisory Board pursuant to Section 9 (b) of PITNDPS Act was 7.7.2020 at 3.00 p.m., whereby the petitioner was produced and the matter was heard, but on 18.7.2022 he was informed that vide order dated 15.7.2022 the Advisory Board has opined to the effect that there is sufficient cause for detaining of the petitioner, and in fact the Advisory Board has confirmed the order of detention for a period of one year from the date of detention dated 27.4.2022.

(19). By way of writ petition it was argued by learned counsel for the petitioner that sponsoring authority i.e. NCB Lucknow no report in that regard was enclosed with the grounds of detention, hence, the petitioner was complete at loss as how and when the detaining authority came into the knowledge of the fact in the case by which mode either orally or writing and the material provided by the sponsoring authority to the detaining authority to initiate a proceeding of preventive detention of petitioner under PITNDPS Act, 1988. The report of the sponsoring authority was never shared with the petitioner as to when and on what date the detaining authority took a decision of preventive detention of petitioner. All these are the grey areas which touches the root of the controversy in which the petitioner finds himself at complete loss and an effective opportunity of hearing to him. In addition to this, the applicant has unable to demonstrate that there is no live link between his two antecedents and the proposed/ impugned preventive detention.

(20). The Court has an occasion to peruse the grounds of detention dated 4.3.2022 (Annexure-2 to the petition) in which it finds reference to an earlier credentials of the petitioner as shared by NCB, Lucknow Zonal Unit and its pending proceedings. The relevant grounds mentioned in the grounds of detention dated 4.3.2022 are as under :

"2. There are intelligence inputs that you i.e. Shri Shivbodh Kumar Mishra @ Shiv Bodh Mishra are again indulging in trafficking of narcotics drugs after you were released from the jail. It clearly shows that you are a habitual offender and not going to mend your ways but continue to be in drug trafficking. You have deep involvement and have continued propensity for trafficking of narcotics and Psychotropic Substances.

3. In view of the facts mentioned above, I have no hesitation in arriving at the conclusion that you i.e. Shri Shivbodh Kumar Mishra @ Shiv Bodh Mishra through your above acts engaged yourself in prejudicial activities of illicit traffic of narcotics and psychotropic substances, which poses serious threat to the health and welfare not to the citizens of this country but to every citizen in the world, besides deleterious effect on the national economy. The offences committed by you i.e. Shri Shivbodh Kumar Mishra @ Shiv Bodh Mishra are so interlinked and continuous in character and are of such nature that these affect security and health of the nation. The grievous nature and gravity of offences committed by you i.e. Shri Shivbodh Kumar Mishra @ Shiv Bodh Mishra in well-planned manner clearly establishes your continued propensity and inclination to engage in such acts of prejudicial activities. Considering the facts of the prsent case mentioned in foregoing paras, I have no hesitation in arriving at the conclusion that there is ample opportunity for Shri Shivbodh Kumar Mishra @ Shiv Bodh Mishra i.e. you to repeat the above serious prejudicial acts. Hence, I am satisfied that in the meantime you i.e. Shri Shivbodh Kumar Mishra @ Shiv Bodh Mishra should be immobilised and there is a need to prevent you i.e. Shri Shivbodh Kumar Mishra @ Shiv Bodh Mishra from engaging in such illicit traffic of narcotic drug and psychotropic substances in future by detention under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances (PITNDPS) Act, 1988.

4. In view of the overwhelming evidences discussed in foregoing paras, detailing how you i.e. Shri Shivbodh Kumar Mishra @ Shiv Bodh Mishra have indulged in organising the illicit trafficking of Narcotic Drugs and Psychotropic substances as well as have a high propensity to engage in this illicit activity, it is conclusively felt that if you are not detained under section 3(1) of the PITNDPS Act, 1988, you i.e. Shri Shivbodh Kumar Mishra @ Shiv Bodh Mishra would continue to so engage yourself in possession, purchase, sale, transportation, storage, use of narcotics and psychotropic substances illegally and handling the above activities, organizing directly in the above activities and conspiring in furtherance of above activities which amount to illicit trafficking of psychotropic substances under section 2(e) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances (PITNDPS) Act, 1988 in future also. I am, therefore, satisfied that there is full justification to detain you i.e. Shri Shivbodh Kumar Mishra @ Shiv Bodh Mishra under section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing you i.e. Shri Shiv Bodh Kumar Mishra @ Shiv Bodh Mishra from engaging in above illicit traffic of narcotics and psychotropic substances specified under scheduled to the NDPS Act, 1985.

5. Considering the magnitude of the operation, the chronicle sequence of events, the well-organized manner in which such pre-judicial activities have been carried on, the nature and gravity of the offence, the consequential extent of investigation involved including scanning/examination of papers, formation of grounds, I am satisfied that the nexus between the dates of incident and passing of the Detention Order as well as object of your detention has been well maintained.

6. I consider it to be against public interest to disclose the source of information at the relevant paragraphs of the grounds of detention above."

(21). On a careful perusal of these grounds, of which the sources kept in secret under the garb of "public interest", it has been argued by the learned counsel for petitioner that when there is no criminal activities after his release on bail from 18.12.2022, then instant proceeding under PITNDPS Act, 1988 is nothing but a vague justification of an old proverb "give a dog bad name and hang him". The only sin is that the petitioner is facing two criminal cases of NDPS Act and he is facing the trial for the same. The grounds, could be safely termed as using of hyperbolic expressions and high sounding words, there is virtually nothing against the petitioner to brand him habitual offender.

(22). Per contra, Shri Krishna Agrawal, learned counsel for the respondent no.1, 2 and 3 has filed detailed counter affidavit, sworn by Shri Bhagwan Sahai Meena, Under Secretary, PITNDPS Devision, Department of Revenue, Ministry of Finance, Government of India, New Delhi. In paragraph 4 of the counter affidavit it is mentioned that the records pertaining to the present case and after consulting the Sponsoring Authority i.e. NCB Lucknow Zonal Unit this counter affidavit is being filed. Thus it is evident that the sponsoring authority and detaining authority were hand in glove with each other.

It clearly indicates that the deponent of this case was well aware of the proceedings initiated and at the end of NCB, Lucknow Zonal Unit it was further mentioned in paragraph 7 of the counter affidavit that the Detaining Authority has relied upon the documents/material evidences supplied by the sponsoring authority, after arriving at their subjective satisfaction on 4.3.2022 a letter was issued under Section 3(1) of PITNDPS Act by Ravi Pratap Singh, Joint Secretary, Government of India directing him to detain in the District Prison Lucknow U.P. in order to prevent the petitioner from engaging in illicit traffic in narcotic drugs and psychotropic substances. The aforesaid detention order along with grounds of detention, relied upon the documents and list of documents were served upon the petitioner physically within prescribed period on 27.4.2922 at District Prison Lucknow where petitioner was detained pursuant to the detention order passed by the competent authorities and its acknowledgment was received in the Ministry on 29.4.2022. On 5.5.2022 the U.P. Advisory Board (Detentions) have heard the petitioner in person, the Sponsoring Authority and the officers of the Ministry and had opined that "there is sufficient cause for the detention of the detenue". Based on the opinion of the Advisory Board the Ministry confirmed the detention order vide order dated 15.7.2022 fixing the period of detention for one year from the date of detention w.e.f. 27.4.2022.

(23). In paragraph 8 of the counter affidavit it was submitted that the petitioner was detained by P.S.- Mahewaghat on 25.4.2022 in respect of execution of detention order dated 4.3.2022. Thereafter, the aforesaid detention order along with grounds of detention were served physically to the petitioner on 27.4.2022.

This is the own admission of the deponent that after two days of his alleged illegal detention its material was furnished to petitioner. During this period, petitioner was not produced before any Magistrate as contemplated under Article 22(2) of the Constitution of India.

(24). In paragraph 13 of the counter affidavit, the deponent of the counter affidavit states that the competent authorities on the basis of the material supplied by the sponsoring authority and applying mind and also recording the subjective satisfaction has passed the order for detaining the petitioner as a preventive measure. Since the petitioner was not available at his house and upon the knowledge of aforesaid order through his family members, he absconded and the local police arrested him and thereafter booked him to District Prison Lucknow in compliance of the detention order passed by respondent no.3.

(25). In paragraph 17 of the counter affidavit it has been alleged that the petitioner is a habitual offender and is continuously involved in trafficking of Ganja and thus in order to protect the public at large from the said illegal trafficking in future the detention order was passed. However, in paragraph b & c of the counter affidavit, it has been mentioned that since the petitioner was not available at his home and he sneaked away, but eventually nabbed by P.S. Mahewaghat on 25.4.20222 and was served with the grounds of detention and other allied documents on 27.4.2022.

(26). In paragraph (i) it has been clearly mentioned that the work schedule of Detaining Authority need not to be disclosed and it has been alleged that whatever time has been consumed was for the purposes of better verification, scrutiny and examination of material placed before the Detaining Authority to record his subjective satisfaction. The detaining authority acted promptly and vigilantly and issued order of detention after arriving at his subjective satisfaction.

(27). On these pleadings, learned counsel for the petitioner submits that after being released on bail the petitioner was duly cooperating with the process of law and pursuing his family responsibilities while residing at his permanent place as mentioned above. He never sneaked away or absconded as alleged in the counter affidavit. As mentioned above, he was very much present during 4.3.2022 to 25.4.2022 at his residence, but the authorities were sleeping over the matter for seven good weeks and woke up and pasted the impugned detention order on 25.4.2022. On 25/4/2022 the petitioner visited District Court Allahabad for attending the date fixed in above noted case crime no.42 of 2016 and soon after attending the court proceeding he was arrested pursuant to the detention order under Section 3(1) of PITNDPS Act and was taken away to Police Station Saraiakil, District Kaushambi, where he was detained and thereafter he was transported to District Jail Lucknow in the night of order dated 26.4.2022. He was never produced before any competent Magistrate during this two days which is violation of the provisions provided for the execution of warrant of arrest under the Criminal Procedure Code.

At the cost of repetition it was argued that the detention order was never appended with or contained the alleged report of sponsoring authority i.e. NCB Lucknow or the material relied upon them for their alleged subjective satisfaction. Respondent no.3 in his point no.6 of the grounds, kept the source of information under his sleeves and did not disclose the same. On account of non supply of complete material the petitioner found himself unable to represent himself against the impugned detention order, however with limited means and anticipating those grounds, the petitioner got one representation prepared and submitted the same on 13.5.2022. This is the most crucial aspect of the issue that the petitioner is not in knowledge as to how and when detaining authority has come to knowledge of the material relied upon by the sponsoring authority and the material available on the record, by which the sponsoring allegedly formed their subjective satisfaction.

LEGAL DISCUSSION :

(28). After hearing the submissions advanced by contesting parties and perusing the pleadings/grounds taken by them, the Court finds it proper and imperative to reproduce the 'Statement of Object and Reasons' for enactment of 'The Prevention of Illegal Traffick in Narcotic Drugs and Psychotropic Substances Act, 1988' which reads thus :

"In recent years, India has been facing a problem of transit traffic in illicit drugs. The spillover from such traffic has caused problems of abuse and addiction. This trend has created an illicit demand for drugs within the country which may result in the increase of illicit cultivation and manufacture of drugs. Although a number of legislative, administrative and other preventive measures, including the deterrent penal provisions in the Narcotic Drugs and Psychotropic Substances, Act, 1985, have been taken by the Government, the transit traffic in illicit drugs had not been completely eliminated. It was, therefore, felt that a preventive detention law should be enacted with a view to effectively immobilising the traffickers. The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 provides for preventive detention in relation to smuggling of drugs and psychotropic substances, but it cannot be invoked to deal with persons engaged in illicit traffic of drugs and psychotropic substances within the country. It was, therefore, felt that a separate legislation should be enacted for preventive detention of persons engaged in any kind of illicit traffic in narcotic drugs and psychotropic substances. Accordingly, the President promulgated the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Ordinance, 1988 on 4th July, 1988."

The arguments of respective counsels have to be tested in the light of abovementioned object and reasons of enactment. Any action on the part of authorities namely sponsoring authority or detaining authority or Advisory Board has to be in consonance with the aforesaid objective and reasons and has to be strictly adhered because it relates to the individual's own freedom, life and liberty, which cannot be negotiated.

(29). Learned counsel for the petitioner in order to buttress his contentions has relied upon the Hon'ble Apex Court's decision in Sushanta Kumar Banik vs. State of Tripura and others, 2022 LiveLaw (SC) 813, whereby the Hon'ble Apex Court have allowed the appeal on the following grounds :

(I) Delay in passing the order of detention from the date of proposal thereby snapping "live and proximate link" between the prejudicial activities and the purpose of detention and failure on the part of detaining authority in explaining such delay in any manner.

(II) The detaining authority remain oblivion of the fact that both the criminal cases relied upon by the sponsoring authority/detaining authority for the purposes of passing the order of detention the appellant-detainue was ordered to be released on bail by the special court. The detaining authority also remain oblivion as this material and vital fact of the detainue being released on bail in both the cases was suppressed, rather not brought on notice of detaining authority by the sponsoring authority at the time of proposal to pass appropriate order for preventive detention.

(30). In this regard learned counsel for the petitioner submits that taking the strength from "live and proximate link between the prejudicial activities and purpose of detention" it has been contended by the counsel that there are only two cases to the credit of petitioner and in both of these cases he has been bailed out on 5.3.2020 and 18.12.2020 respectively. Since thereafter not a single case to the credit of the petitioner. The Court wonders that how the authorities would justify their detention order unless they would depict that there is 'live and proximate link' between the act done and passing of the alleged detention order. No doubt, the petitioner is facing prosecution in both the cases and the alleged detention order was passed on 4.3.2022 after lapse of about one year and 3-4 months. During this period, not a single case has been registered against the petitioner either in any offences of I.P.C. or NDPS Act has been registered against the petitioner. It is fuhrers submitted that there are only two cases against the petitioner for which he is facing prosecution and in the absence of any 'live and proximate link' between the alleged release of petitioner on bail in December, 2020 till passing of detention order on 4.3.2022, makes entire proceeding vitiated on this score. The sponsoring authority must justify that the petitioner is offender and as soon as he would come out in the affinity of his accomplices he would again indulge into the same activities. In the grounds of detention, except a bald averment that Shivbodh Kumar Mishra @ Shivbodh Mishra would again indulged into the trafficking of narcotics drugs if he would be released from jail, is nothing but a device crafted by the sponsoring authority to dump a person in jail for ever. It is further mentioned in the detention order the detaining authority has not whispered about the source of information in the light of public interest give a free hand to the sponsoring/ detaining authority to pass any order of detention. At the cost of repetition, no doubt the petitioner was indulged into the two cases is NDPS Act but this would not going to justify the pasting of preventive detention order in the backdrop of aforesaid two cases. There has to be a concrete tangible material on record so as to justify the aforesaid detention order.

(31). In the instant case, the petitioner has not been provided any document relying upon the sponsoring authority has prepared his report or as to when the sponsoring authorities have started preparing the report for forwarding the same to the detaining authority. All these vital aspects of the issue remain under the carpet of secrecy which is prejudicial to the interest of petitioner. It is binding and statutory duty to share all documents material of which the sponsoring authority has firmed opinion to proceed against the petitioner under the PITNDPS Act, without which the entire detention order gets vitiated.

(32). As mentioned above, in Ashok Kumar vs. Delhi Administrative and ors, (1982) 2 SCC 403 the Hon'ble Supreme Court has observed that preventive detention is devised to afford protection 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.

(33). In view of 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.

(34). 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 the case of delay in passing the order of detention from the date of the proposal. The common underlying principle in both situations would be the "live & proximate link" between the grounds of detention & the avowed purpose of detention.

(35). In the case of Sushanta Kumar Banik (supra) the Hon'ble Apex Court has also held as under :

"18. Chinnappa Reddy, J. speaking for the Bench in Bhanwarlal 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 order of detention unless the grounds indicate a fresh application of the mind of the detaining authority to the new situation and the changed circumstances. But where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the "link" not snapped but strengthened."

(Emphasis supplied)

19. Sabyasachi Mukharji, J. (as the learned Chief Justice then was) in Shafiq Ahmed v. District Magistrate, Meerut and Ors., (1989) 4 SCC 556, having regard to the fact that there was a delay of two and a half months in detaining the petitioner (detenu) therein, pursuant to the order of detention has concluded that "there was undue delay, delay not commensurate with the facts situation in that case and the conduct of the respondent authorities betrayed that there was no real and genuine apprehension that the detenu was likely to act in any manner prejudicial to public order. The order, therefore is bad and must go". However, the learned Judge observed that "whether the delay was unreasonable depends on the facts and circumstances of each case."

20. It is manifestly clear from a conspectus of the above decisions of this Court, that the underlying principle is that if there is unreasonable delay between the date of the order of detention & actual arrest of the detenu and in the same manner from the date of the proposal and passing of the order of detention, such delay unless satisfactorily explained throws a considerable doubt on the genuineness of the requisite subjective satisfaction of the detaining authority in passing the detention order and consequently render the detention order bad and invalid because the "live and proximate link" between the grounds of detention and the purpose of detention is snapped in arresting the detenu. A question whether the delay is unreasonable and stands unexplained depends on the facts and circumstances of each case."

(36). In yet another case of Ahmedhussain Shaikhhussain @ Ahmed Kalio VS. Commissioner of Police, Ahmedabad and another, (1989) 4 Supreme Court Cases 751, the Hon'ble Apex Court has observed thus :

"10. We may now refer to two decisions of this Court under the present Act. In the case of Abdul Razak Abdul Wahib Sheikh vs. Shri S.N. Sinha, 'Commissioner of Police, Ahmedabad & Anr.,(1989) 2 SCC 222; 1989 SCC (Cri) 326, it has been held that the detaining authority must disclose in a case where the detenu is already in jail that there is cogent and relevant material constituting fresh facts to necessitate making of an order of detention. In that case, as here, the detenu was in jail in connection with a criminal case and the order of detention was served on him in jail. The detenu's mere complicity in earlier incidents was not considered adequate and the detention under the Act was set aside. In the case of Ramesh v. State of Gujarat & Ors., (1989) 4 SCC 124, an order of detention under the Act was under challenge. The Court found that referring to incident which constituted the subject-matter of an earlier order of detention vitiated the impugned order.

(11) ...................

(12) Disclosure of adequate facts to enable a full and adequate representation to the Preventive Detention Board is one of the positive guarantees within the scope of Article 22(5) of the Constitution. In A.K. Roy's case, [1982] 1 SCC 271 a Constitution Bench of this Court indicated that fullest disclosure of material should be made to enable the representation to be effective. In the present case the grounds which we have extracted show that the allegations are more or less vague and have the effect of making it difficult for the petitioner to make an adequate representation."

(37). Thus, from the above discussion it is abundantly clear that on account of non supply of material by sponsoring authority the petitioner was not in a position to give effective representation. Secondly, there is no direct 'live and proximate link' between the action of petitioner and the detention order passed by the detaining authority. In the ground of detention order, not a single word has been whispered that the petitioner even after being bailed out was regularly in touch with his sources or mobilising them.

(38). The petitioner was bailed out on 18.12.2020 and since then there is no criminal antecedents reported to his credit. He is already attending the proceedings of the court and cooperating with the trial in two cases before the trial court concerned and now whimsically the respondent authorities nabbed the petitioner under Section 3(1) of PITNDPS Act allegedly preventing him from the unknown unheard forthcoming offence which the petitioner is said to have been planning.

(39). In this regard the Court has the occasion to lay its hands on a judgment of Calcutta High Court in the case of Heisnam Chaoba Singh vs. The Union of India and others in Criminal appeal No.1184 of 2022, 2021 SCC Online Cal 2691, whereby the Hon'ble Apex Court has held that preventive detention would normally regard as anathema to liberty. Personal liberty of an individual is precious, invaluable and to be jealously secured and protected. The word "preventive" is different from 'punitive' as said by Lord Finley in R.V. Haliday reported in 1917 AC 260. The law of preventive detention operate harshly on the accused and, therefore, it should be strictly construed and should not be used merely to clip the wings of the accused who has involved in the criminal prosecution. Freedom from arbitrary arrest is a basic human right recognised over the years. This right has been preserved and respected whenever there has been cases of preventive detention unless there were compelling necessity or reasons. The courts have upheld the sanctity of the personal liberty and placed it over all other rights. In cases of habeas corpus there is a principle which "is one of the pillars of liberty", that in English Law every imprisonment is prima facie unlawful and that it is for a person directing imprisonment to justify his act. It would be contextually useful to quote the following paragraphs of aforesaid judgment, herein below :

"28. It may appear to be strange that amongst the loudest critics who were members of the independent movement and might have suffered preventive detention in British India without even being tried or convicted, however, were in favour of inserting preventive detention in the Constitution and thereafter in various legislation authorising detention without trial. The sweeping power given to executive to arrest and detain a person for months together without even seeking the confirmation of the advisory board, however, has now been diluted due to various judicial pronouncements which uphold the constitutional rights of detenue notwithstanding the right of the detaining authority to issue order for preventive detention and similar legislation setting a time limit for such consideration.

29. Sardar Ballavbhai Patel, the first Home Minister of independent India moving the Bill which culminated in the preventive detention Act 1950 told parliament that it was directed against persons "whose avowed object is to create disruption, dislocation and tamper(ing) with communication, to suborn loyalty and make it impossible for normal Government based on law to function.

30. ...............

31. Justice Vivian Bose a crusader of personal liberty in his dissenting judgment in S. Krishnan Koths v. State of Madras reported at AIR 1951 SC 301 in the context of the validity of the Preventive Detention (Amendment) Act 1951. observed:

"I cannot bring myself to believe that the framers of our Constitution intended that the liberties guaranteed should be illusory and meaningless or that they could be toyed with by this person or that. They did not bestow on the people of India a cold, lifeless, inert mass of malleable clay but created a living organism, breathed life into it and endowed it with purpose and vigour so that it should grow healthily and sturdily in the democratic way of life, which is the free way. In the circumstances, I prefer to decide in favour of the freedom of the subject. ......I am not speaking technically at the moment. I am viewing it broadly as the man in the street would. I am placing myself in the position of the detenu and looking at it through his eyes. The niceties of the law do not matter to him. He does not care about grammar. All that matters to him is that he is behind the bars and that Parliament has not fixed any limit in his kind of case and that local authorities tell him that they have the right to say how long he shall remain under detention. I cannot bring myself to think that this was intended by the Constitution".

32. .....................

33. The catena of decisions relied upon by the learned Counsel for the petitioner and Addl. Solicitor General would show that the courts have tried to balance between the personal liberty and the necessity for curtailment such freedom or liberty. One would argue that when a person has committed acts which are punishable as crime be detained under the garb of preventive detention. It is quite arguable that a detention can never be proper as the very object of the detention keeping the culprit behind bars can be achieved by any ordinary criminal court by convicting him for offence. However, the concept that emerged that while the object of a trial and a conviction is punitive the object of detention without trial is preventive.

.................

39. Preventive detention is an exceptional mechanism compromising on the personal liberty of individuals. Therefore, the legal qualification of preventive detention laws ought to be interpreted strictly and preventive detention should not be permissible unless it absolutely qualifies all the necessary legal facets. The Hon'ble Courts have acknowledged the gravity and repercussions of preventive detention laws. Preventive detention is a tool in isolation which operates to curtail a person's personal liberty. Preventive detention is more excessive than normal measures of arrest, hence preventive detention cannot be misconstrued to be a direct alternative to the normative criminal prosecution. The Indian legal jurisprudence already has a set of pre-existing criminal law legislations which caters to the culpability of various modes of offences. Preventively detaining any person is an exclusive measure and operates separately than the Indian Penal Code or Code of Criminal Procedure. Therefore, preventive detention as a measure ideally should be utilised when the other existing criminal laws are inadequate and the preventive detention is squarely falling within the intention of the legislature to implement preventive detention. The Hon'ble Courts have looked down upon the practice of detaining a person under preventive detention when such person has been enlarged on bail in the same case. The intention with which courts have made such an observation is to ensure that preventive detention is not used as an added tool to curtail judicial decisions allowing bail of a person. The Hon'ble Supreme Court in Vijay Narain Singh v. State of Bihar (1984) 3 SCC 14 observed the following:

"It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court."

(40). The preventive detention laws in India are a colonial legacy and have a great potential to be abused and misused. Laws that have the ability to confer arbitrary powers to the state, must in all circumstances, be very critically examined, and must be used only in the rarest of care cases. In cases of preventive detention, where the detenue is held in arrest not for a crime he has committed, but for a potential crime he may commit, the courts must always give every benefit of doubt in favour of the detenue, and even the slightest of errors in procedural compliances must result in favour of the detenue.

(41). After having gone through the aforementioned judgments of Hon'ble Apex Court and having considered the contentions raised by learned counsel for the respective parties, we have no hesitation to say that the impugned detention order dated 4.3.2022 and the grounds are de hors the provisions of law, and therefore, the impugned detention order dated 4.3.2022 and the grounds dated 04.03.2022 on which the detention order was passed, are hereby set aside and consequently the petitioner is set at liberty forthwith, if he is not wanted in any other case.

(42). The instant Habeas Corpus Writ Petition stands ALLOWED. All the concerned parties shall be given a copy of this order as per rules.

(43). We make it clear that the observations made in this order are only for the purpose of deciding the instant habeas corpus and shall not affect the trials pending against the petitioner before the court concerned. Trial courts are directed to proceed and decide the case on its own merits, unaffected by any observation made in this order.

Order Date :- 5.5.2023 M. Kumar/Abhishek Sri

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