Tripura High Court
Mst. Kamrul Nahar vs The State Of Tripura on 8 July, 2020
Equivalent citations: AIRONLINE 2020 TRI 246
Bench: S. Talapatra, S. G. Chattopadhyay
IN THE HIGH COURT OF TRIPURA
AGARTALA
W.P.(C)(HC) No.2 of 2020
Mst. Kamrul Nahar,
wife of Billal Miah, resident of
Lodhamura, Bashpukur, P.S. Jatrapur,
District: Sepahijala Tripura
............ Petitioner (s)
on behalf of the Detenue
Billal Miah,
son of late Ali Ajjan, resident of
Lodhamura, Bashpukur, P.S. Jatrapur,
District: Sepahijala Tripura
...........Detenue
-Versus-
1. The State of Tripura,
represented by the Secretary to the
Government of Tripura, Home
Department, having office at New
Secretariat Complex, P.O. Khejurbagan,
P.S. NCC, Sub-Division: Agartala,
District: West Tripura, PIN: 799 010
2. The Additional Secretary,
Department of Home, Government of
Tripura, New Secretariat Complex, P.O.
Khejurbagan, P.S. NCC, Sub-Division:
Agartala, District: West Tripura, PIN: 799
010
3. Director General of Police,
Tripura, having office at Police Head
Quarters, Fire Brigade Chowmohani, P.O.
Agartala, P.S. West Agartala, Sub-
Division: Agartala, District: West Tripura,
PIN:799 001
Page 2 of 10
4. The Chairman,
Advisory Board, Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic
Substance Act, 1988, represented by the
Secretary, Advisory Board, State of
Tripura, Agartala, Tripura (West)
5. The Union of India,
represented by the Secretary,
Department of Home, Government of
India, Jai Singh Marg, Connaught Place,
New Delhi-110001
............ Respondent (s)
For the Petitioner (s) : Mr. S. Sarkar, Adv.
For the Respondent (s) : Mr. H Deb, Asst. S.G.
Mr. S. Debnath, Addl. P.P.
Date of hearing & delivery : 08.07.2020
of Judgment & order
Whether fit for reporting : No
HON'BLE MR. JUSTICE S. TALAPATRA
HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY
JUDGMENT & ORDER [ORAL]
Heard Mr. S. Sarkar, learned counsel appearing for the Detenue as well as Mr. S. Debnath, learned Addl. P.P. appearing for the respondents No. 1 to 4. Mr. H. Deb, learned Asst. S.G. has appeared on earlier occasion for the Union of India to submit that the Union of India has received a copy of the detention order in the due course.
[2] The detenue has been detained under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Page 3 of 10 Substances Act, 1988 (PIT NDPS Act, in short) by the order dated 09.08.2019 under No.F.15(9)-PD/2019(P-III) [Annexure-6 to this petition] on the purported grounds of nefarious activities in trafficking of NDPS and forming illegal business ring for proliferation of such activities. By means of purported business which is grossly illegal he has enmassed huge land properties. That apart, as it appears from the order dated 09.08.2018 which had been served on the petitioner on 14.08.2019, several pending criminal cases were considered along with the report of the Director General of Police proposing for detention for forming the opinion for detention. The cases which were thus considered are as follows:
"[i] Kakraban P.S. case No.2018KKB075 dated 20.05.2018 U/S 120(b) read with Section 20(b)(II)(C) and added Section 25/29 of NDPS Act, 1985.
[ii] Jatrapur PS case No.2018JTP007 dated 31.03.2018 under Section 20(b)(II)(C) and added Section 8/25/29 of NDPS Act, 1985.
[iii] Sonamura PS No.2018SNM138 dated 17.10.2018 under Section 20(b)(ii)(c)/25/29 of NDPS Act.
[iv] Pecharthal PS Case No.2018PTL014 dated 01.06.2018 under Section 22(C) of NDPS Act, 1985 and added Section 179/181/184/197 of MV Act and Section 333 of IPC & Section 29 of NDPS Act, 1985. [v] Manu PS case No.2018MNU018 dated 05.06.2018 under Section 20(c)/25/29 of NDPS Act, 1985.
[vi] Jatrapur PS case No.2015JTP033 dated
07.06.2015 under Section 302 IPC."
[3] Since 14.08.2019 the detenue is under detention.
According to the detenue, he had submitted one representation on 02.09.2019 claiming that he has been implicated in false cases and Page 4 of 10 those were subsequently considered for the purpose of passing the detention order. But Mr. Debnath, learned Addl. P.P appearing for the respondents, particularly for the detaining authority, has submitted that no such representation has been received by the detaining authority ever or at any point of time, and as such there was no question of considering the said representation. It appears that in the course, the materials were placed before the Advisory Board which included grounds for detention other documents. The Advisory Board sent its report dated 25.09.2019 after examination of the records and documents placed before it. It is apparent from the record that the Board was satisfied that there were enough materials for detention as the detenue was indulging in nefarious activities like illicit trafficking of NDPS and further, there was no sign of deterrence. On considering the said report, the detaining authority passed the final order under Section 9 of the PIT NDPS Act confirming the order of detention dated 09.08.2019 issued by the Home Department, Government of Tripura in respect of the detenue observing that the detention period shall continue until the expiration of one year from the date of detention i.e. 14.08.2019. [4] The detenue has challenged the initial order of detention as well as the final order of detention. As it appears to us that the Page 5 of 10 challenge is structured on solitary ground that the documents and the report of the DGP which formed the basis for directing detention, was not supplied to the detenue at all. [5] Mr. Sarkar, learned counsel appearing for the detenue has submitted that unless those were supplied within the stipulated period i.e. five days from the date of passing the detention order, the detention order itself will be vitiated and liable to be illegal. Mr. Sarkar, learned counsel has taken us to the reply filed by the respondents No.1 to 4 on 02.07.2020 where they have asserted without reservation that the detenue was never served the copies of the documents with the proposal signed by the DGP. It has been subscribed by the answering respondents that nowhere in the PIT NDPS Act, 1988, it has been provided that the copies of the documents are to be served to the detenue. Rather, in sub-section 3 of Section 3 of PIT NDPS Act it has been provided that only the communication, to a person detained in pursuance of a detention order, of the grounds on which the order has been made shall be made as soon as 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 Page 6 of 10 detention. Thus, those respondents have claimed that they have discharged their statutory obligation.
[6] We are not surprised to note that in para 10 those respondents have stated as follows:
"That, with regard to the statements made in paragraph-4 of the writ petition the answering respondents state that as per Section 3(1) of PITNDPS Act, 1988 for detaining any person with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is not at all essential to consider whether such narcotic drugs were recovered from the possession of the detained person or not. The answering respondents also deny that the detenue earned the displeasure of the persons or that he has been detained with malafide intention without any reason and ground. It is further stated that the detention order contained reason and grounds for issuing order of detention clearly indicating all relevant materials for detaining the detenue petitioner under Section 3(1) of PITNDPS Act-1988. It is pertinent to mention here that the detention order under reference was duly supplied to the detenue. Beside this, the reason and grounds for detention were supplied to the above named detenue petitioner on obtaining signature on the copy as acknowledgement of receipt."
[7] Those respondents have filed one additional affidavit in terms of the order passed by us on 03.07.2020. In that additional affidavit it has been asserted that in para-7 of the report of the Advisory Board dated 25.09.2019 it has been clearly noted that grounds of detention with copies of the document on the basis of which the decision was taken in respect of the preventive detention along with the order of detention were served on the detenue and he was made aware that he might make representation against the order of detention to the detaining authority [the Home Department, Government of Tripura].
Page 7 of 10[8] Mr. Debnath, learned Addl. P.P. has in his fairness submitted that the original copy of the report is kept in the File No.15(9)-PD/2019(P-III). He produced the said file for our verification. We have perused that report and found such observation has really been made by the Advisory Board. We are really surprised that how the Advisory Board can vouch the fact that the report of the DGP proposing detention with all 'supporting' documents were supplied, when the respondents No. 1, 2 and 3 have taken a categorical stand that no such documents or the report of the DGP proposing the detention was supplied to the petitioner. We have scrutinized the report and discovered that no such statement had come from the detenue.
[9] As such, we do not have any dilemma to hold that detenue was never supplied with the copies of the documents which were formed the basis of detention and the report of the DGP proposing detention within the stipulated time as provided under sub-section 3 of Section 3 of the PITNDPS Act.
[10] Thus, the solitary question that falls for our consideration is whether the detaining authority is bound to supply the documents or the report of the DGP as stated, to the detenue or whether non- Page 8 of 10 supply of those documents and the report of the DGP would frustrate absolutely the right of the detenue to representation? [11] In sub-section 3 of Section 3 of PITNDPS Act it is provided that for purpose of clause (5) of Article 22 of the Constitution, the communication, to a person detained in pursuance of a detention order, of the grounds on which the order has been made shall be made as soon as 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. Whether, the supply of documents as considered for forming opinion on detention will be considered the ground of detention?
[12] On a bare reading of the said provision would support the contention of Mr. Debnath, learned Addl. P.P. that there is no statutory requirement of providing the documents and the report of the DGP, but by the development of law, the apex court has made it absolutely unambiguous that the mere grounds of detention without the documents so considered cannot be construed as substantive disclosure of grounds and as such, the documents and any other materials such as the report of the DGP proposing detention in the present case are to be supplied to the detenue so that he can make Page 9 of 10 the appropriate and effective representation challenging the grounds of detention. For this purpose, this court in Nirmal Shil vs. the State of Tripura and Ors. [the judgment dated 16.06.2020 delivered in W.P.(C)(HC) No.09 of 2019] has elaborately discussed the law as on today and observed that the copies of documents or the report which were instrumental in forming the grounds of detention are required to be supplied or non-supply thereof would substantially prejudice the detenue. According to us, the said judgment squarely covers the present case where non-supply of the documents relating to several police cases, as noted above, and the report of the DGP proposing detention, as considered for forming opinion as regards the detention were not supplied to the detenue. Moreover, this fact has been admitted by the detaining authority in the reply. As such, the detenue had been sufficiently prevented from making an appropriate or effective representation against the order of detention. Hence, the exercise of submitting the representation had been reduced in futility. The law is very clear in this regard that the grounds as referred in Article 22(5) do not mean mere factual inferences but the factual inference plus factual materials which propel to such factual inferences. The grounds must be self- sufficient and self-explanatory. In our view, copies of the documents Page 10 of 10 to which reference have been made in the ground must be supplied as part of the ground. This obligation is inescapable and non- negotiable.
[13] Having observed thus, we are persuaded to interfere with the detention order dated 09.08.2019 [Annexure-6 to this petition] and the final order dated 03.10.2019 [Annexure-8 to this petition] and hence, those are set aside and quashed. The detenue shall be released forthwith, if not required in any other case.
In the result, this petition stands allowed and disposed of.
A copy of this order be supplied to Mr. S. Debnath, learned Addl. P.P. appearing for the respondents No.1-4.
The record as produced by Mr. Debnath, learned Addl. P.P. is returned.
JUDGE JUDGE Moumita