Jharkhand High Court
Rampravesh Gupta @ Ramu Saw @ Ram Pravesh ... vs The State Of Jharkhand Through The Chief ... on 8 August, 2025
Bench: Sujit Narayan Prasad, Rajesh Kumar
2025:JHHC:22674-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) (DB) No.133 of 2025
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Rampravesh Gupta @ Ramu Saw @ Ram Pravesh Sao @
Ramu Sao, aged about 40 years, S/O Late Mahavir Saw,
R/O Village-Ramtunda, PO-Chatra & PS-Chatra Sadar,
Distt.-Chatra, Jharkhand. ... ... Petitioner
Versus
1. The State of Jharkhand through the Chief Secretary
Government of Jharkhand at Secretariat, Project
Bhawan, HEC Compound, PO & PS-Dhurwa, Distt.-
Ranchi, Jharkhand.
2. The Principle Secretary, Department of Home, Prison
and Disaster, Government of Jharkhand, Project
Bhawan, HEC Compound, PO & PS- Dhurwa, Distt.-
Ranchi, Jharkhand.
3. The Director General Of Police, Jharkhand Police
Headquarter, HEC Compound, PO & PS- Dhurwa, Distt.-
Ranchi, Jharkhand.
4. The Deputy Commissioner, Chatra, PO, PS & Distt.-
Chatra.
5. The Deputy Collector in charge, District General Branch,
Chatra, PO, PS & Distt.- Chatra.
6. The superintendent of Police, Chatra, PO & PS-Gidhour,
Distt.- Chatra, Jharkhand.
7. The Circle Officer, Gidhour, PO & PS- Gidhour, District-
Chatra, Jharkhand.
8. Praveen Kumar, S/o not known, A.S.I, Chatra Sadar
Police Station, PO & PS- Chatra, Distt.- Chatra,
Jharkhand.
9. Anand Kishore Osaga, S/o not known, A.S.I, Chatra
Sadar PS, PO & PS- Chatra, Distt.- Chatra, Jharkhand.
10. Pravesh Kumar Ram, S/o not known, A.S.I Chatra Sadar
PS, PO & PS- Chatra, Distt.- Chatra, Jharkhand.
11. The DIG, Investigation Department, CID, Ranchi,
Jharkhand, PO & PS- Doranda, Distt.- Ranchi.
Jharkhand. ... ... Respondents
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CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Petitioner : Mr. P.S. Dayal, Advocate
: Mr. Pankaj Kumar, Advocate
For the Respondent : Mr. Deepankar, A.C. to G.P.-III
-------
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C.A.V. on 17.07.2025 Pronounced on 08/08/2025
Per Sujit Narayan Prasad, J.
1. This writ petition has been filed under Article 226 of the Constitution of India for quashing the order dated 14.05.2024 passed in Memo No.18/PIT NDPS-23/2024- 3039 and order dated 14.05.2024 passed in 18/PIT NDPS- 23/2024-3041 issued by the Principal Secretary, Home, Prison & Disaster Management Department, Government of Jharkhand, Ranchi, under Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter to be referred to as the Act,1988) by which the petitioner has been directed to be detained in confinement. Factual Matrix
2. The brief facts of the case as per the pleading made in the writ petition, which are required to be enumerated, read as under: -
3. It is the case of the petitioner that the order of detention dated 14.05.2024 passed in 18/PIT NDPS- 23/2024-3041, by respondent no.2, shows that the detaining authority has observed that the petitioner is engaged in repeated cases of illicit traffic in narcotic drugs and psychotropic substances which pose a serious threat to the health and welfare of the people and harmful to the society and further that with a view to prevent the petitioner from committing any of the acts within the 2 2025:JHHC:22674-DB meaning of illicit traffic and also against the general public especially the younger generation from the use and occupation of the drugs, it is necessary to detain him.
4. It is the further case of the petitioner that the petitioner came to know about his detention, after receiving the letters vide letter no. 239 and 240 both dated 27.06.2024 issued by the Deputy Collector, District General Branch,Chatra (respondent no.5) to the Circle Officer,Chatra(respondent no.7).
5. The petitioner had been implicated in connection with- Chatra Sadar P.S. Case No.123 of 2020 dated 13.05.2020 for offence u/s 17(C), 18(C), 22(C) and 29 of NDPS Act; Chatra Sadar P.S. Case No.01 of 2021 dated 01.01.2021 under Section 18 of NDPS Act; Chatra Sadar P.S. Case No.06 of 2021 dated 13.01.2021 under section 18 of NDPS Act; Itkhori P.S. case No. 210 of 2020 dated 30.12.2020 under section 18 of NDPS Act and Barhi (Hazaribagh) P.S. Case No. 175 of 2007 dated 22.08.2007 under section 15/8 of NDPS Act
6. Apart from the aforesaid F.I.R., the Respondents lodged some Sanhas against the petitioner, which are as follows:-
(i) Station diary entry bearing Chatra Sadar P.S..
Sanha No-23/2024 dated 17.03.2024 has been lodged by A.S.I. Praveen Kumar, Chatra Sadar 3 2025:JHHC:22674-DB Police Station, against the petitioner for opium smuggling activities.
(ii) Station diary entry bearing Chatra Sadar P.S..
Sanha No-24/2024 dated 22.03.2024 has been lodged by A.S.I. Anand Kishore Osga, Chatra Sadar Police Station, against the petitioner and others for opium smuggling activities.
(iii) Station diary entry bearing Chatra Sadar P.S..
Sanha No-21/2024 dated 23.03.2024 has been lodged by A.S.I. Pravesh Kumar Ram, Chatra Sadar Police Station, against the petitioner and others for opium and Brown Sugar smuggling activities.
7. It has been stated that the accused arrested under the NDPS Act, 1985 can be ordered to be released on bail only if the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.
8. Petitioner has already been enlarged on regular bail by the Hon'ble High Court in Chatra Sadar P.S. Case No.123 of 2020; Chatra Sadar P.S. Case No.01 of 2021 and Itkhori P.S. case No. 210 of 2020.
9. In Chatra Sadar P.S. Case No.06 of 2021, the petitioner has already been discharged from all the charges by the learned trial court in NDPS Case No. 87 of 2021 and 4 2025:JHHC:22674-DB the same is suggestive that the Court concerned might have not found any prima facie case against him. Had this fact been brought to the notice of the detaining authority, then it would have influenced the mind of the detaining authority one way or the other on the question whether or not to make an order of detention.
10. Further, the State never thought to even challenge the bail orders passed by the court releasing the petitioner on bail.
11. The said decision of the State has been challenged by filing the instant writ petition.
Submission of the learned counsel appearing for the petitioner:
12. Learned counsel appearing for the petitioner has taken the following grounds in assailing the impugned decision: -
(i) The writ petitioner has illegally been confined without any subjective satisfaction of the competent authority as also the Advisory Board has confirmed the decision of confinement without taking into consideration the issue of subjective satisfaction of the competent authority.
(ii) The issue of subjective satisfaction, in the facts of the present case, is relevant since the writ petitioner was made accused in connection with the cases of illicit 5 2025:JHHC:22674-DB trafficking of narcotic drugs and psychotropic substances. In the detention order dated 14.05.2024, there is reference of to Chatra Sadar P.S. Case No.06 of 2021, in which the petitioner has already been discharged from all the charges. Petitioner has already been enlarged on regular bail by the Hon'ble High Court in Chatra Sadar P.S. Case No.123 of 2020;
Chatra Sadar P.S. Case No.01 of 2021 and Itkhori P.S. case No. 210 of 2020. Thereafter, sanhas although have been made and based upon that, the petitioner has been detained by passing the order of detention in exercise of power conferred under Section 3(1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.
(iii) The contention has been raised that if the order of the competent sanctioning authority will be taken into consideration, it would be evident that there is no reference of the issue of acquittal and release on bail of the petitioner.
(iv) It has further been contended that the petitioner has been released on bail/acquitted also which fact has also not been brought before the authority at the time of passing of the impugned orders.
(v) Therefore, it is a case where the sanctioning authority cannot be said to have the subjective satisfaction, 6 2025:JHHC:22674-DB rather, in absence of the material having not been perused since it was not placed before the District Authority, hence, there is lack of subjective satisfaction.
(vi) It is a case where the petitioner although have been ordered to be detained vide order dated 14.05.2024 but the petitioner was taken into custody on 18.09.2024 i.e., after lapse of about more than 4 months. Hence, the slackness which has been shown by the authority in putting the petitioner behind confinement appears to be not available, otherwise, the petitioner would have been detained in confinement in order to effect the order of detention.
(vii) It has been contended that even the ground of absconding will be of no any aid to the State and if that ground is said to be available then it was the bounden duty of the State to take recourse to Section 8 of the Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, wherein the procedure has been laid down to deal with the absconders in order to effect the order of detention.
13. Learned counsel for the petitioner has relied on judgment rendered by the Apex Court delivered in case of Sushanta Kumar Banilk Vs. State of Tripura and Others reported in 2022 SCC Online SC 1333. 7
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14. Learned counsel, based upon the aforesaid grounds, has submitted that the order of detention, therefore, suffers from error and hence not sustainable in the eye of law. Submission made by the learned counsel for the State
15. Per contra, Mr. Deepankar, learned A.C. to G.P.-III appearing for the State, has submitted on the basis of the counter affidavit filed on behalf of the State that there is no error in the impugned decision, since, the petitioner was found to be habitual in trafficking of the narcotics which would be evident from the institution of First Information Reports and Sanhas.
16. It has been contended that so far the argument which has been advanced on behalf of the petitioner that due to the non-arrest of the petitioner for a period of about four months, the order of detention should not have been passed and not arresting the petitioner in execution of the order of detention itself suggest that there was no need of passing of order of detention is concerned, the petitioner cannot be allowed to take advantage of the same since petitioner was absconding. Hence, it is incorrect on the part of the petitioner to say that the order of detention is not for the useful purpose.
17. Learned counsel has submitted that it is also incorrect on the part of the petitioner to take the ground that there is no subjective satisfaction, rather, each and 8 2025:JHHC:22674-DB every aspect of the matter has been taken into consideration by the competent sanctioning authority of the State Government which on being deliberated by the Advisory Board has upheld the decision so taken by the State. When two authorities have upheld the issue of confining the petitioner in detention, it cannot be said that there is no subjective satisfaction.
18. Learned counsel appearing for the State, based upon the aforesaid grounds, have submitted that it is, therefore, not a case where the order of detention is said to suffer from an error.
Analysis
19. We have heard learned counsel for the parties and gone through the order of detention as also the pleadings made on behalf of the petitioner and the State as available in the writ petition and the counter affidavits.
20. The issues which require consideration herein are -
(i) Whether in the facts and circumstances of the present case, can it be said that the authorities have got the subjective satisfaction while passing the order of detention?
(ii) Whether the issue of subjective satisfaction can be said to be made out if the documents in entirety have not been placed by the District Authority along with 9 2025:JHHC:22674-DB the proposal before the Sanctioning Authority of State Government to apply its proper mind?
(iii) Whether the order of detention can be passed in such a casual manner where the issue of the fundamental right as conferred under Article 22 of the Constitution of India particularly Sub-clause (5) thereof, is there?
(iv) Whether the issue of absconding which has been taken on behalf of the State can be said to be acceptable in absence of any recourse having been taken of the procedure as provided under Section 8 of the Act, 1988?
21. All the issues since are interlinked, as such, the issues are being taken up together for its consideration. But, before considering the said issues, the statutory provision as contained under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with its object and intent needs to be referred herein.
22. The Narcotic Drugs and Psychotropic Substances Act, 1988 has been enacted keeping in view that 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 10 2025:JHHC:22674-DB 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.
23. The relevant provisions which require consideration are Section 3, 6, 8, 9 and 11 of the Act,1988, which are necessary to be referred herein which read hereunder as :-
3. Power to make orders detaining certain persons.-(I) The Central Government or a State Government, or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner) 11 2025:JHHC:22674-DB that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary so to do, make an order directing that such person be detained.
(2) When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order.
(3) For the purposes 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.
6. Grounds of detention severable.-Where a person has been detained in pursuance of an order of detention under sub-section (1) of section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly-
(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are-
(i) vague,
(ii) non-existent,
(iii) not relevant,
(iv) not connected or not proximately connected with such person, or
(v) invalid for any other reason whatsoever, and it is not therefore possible to hold that the Government or officer making such order would have been satisfied as provided in sub-section (I) of section 3 with reference to the remaining ground or grounds and made the order of detention;
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(b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said sub-section (I) after being satisfied as provided in that sub-section with reference to the remaining ground or grounds.
8. Powers in relation to absconding persons.-(l) If the appropriate Government has reason to believe that a person in respect of whom a detention order has been made has absconded or is concealing himself so that the order cannot be executed, that Government may-
(a) make a report in writing of the fact to a Metropolitan Magistrate or a Magistrate of the first class having jurisdiction in the place where the said person ordinarily resides; and thereupon the provisions of sections 82, 83, 84 and 85 of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply in respect of the said person and his property as if the order directing that he be detained were a warrant issued by the Magistrate;
(b) by order notified in the Official Gazette direct the said person to appear before such officer, at such place and within such period as may be specified in the order; and if the said person fails to comply with such direction, he shall, unless he proves that it was not possible for him to comply therewith and that he had, within the period specified in the order, informed the officer mentioned in the order of the reason which rendered compliance therewith impossible and of his whereabouts, be punishable with imprisonment for a term which may extend to one year, or with fine, or with both.
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under clause (b) of sub-section (I) shall be cognizable.
9. Advisory Boards.-For the purposes of sub-clause (a) of clause (4) and subclause (c) of clause (7) of article 22 of the Constitution,-
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(a) the Central Government' and each State Government shall, whenever necessary, constitute one or more Advisory Boards each of which shall consist of a Chairman and two other persons possessing the qualifications specified in sub-clause (a) of clause (4) of article 22 of the Constitution;
(b) save as otherwise provided in section 10, the appropriate Government shall, within five weeks from the date of detention of a person under a detention order, make a reference in respect thereof to the Advisory Board constituted under clause (a) to enable the Advisory Board to make the report under sub- clause (a) of clause (4) of article 22 of the Constitution;
(c) the Advisory Board to which a reference is made under clause (b) shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person, called for the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven weeks from the date of detention of the person concerned;
(d) when there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board;
(e) a person against whom an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board and the proceedings of the Advisory Board and its report, excepting that part 14 2025:JHHC:22674-DB of the report in which the opinion of the Advisory Board is specified, shall be confidential;
(f) in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith.
11. Maximum period of detention.-The maximum period for which any person may be detained in pursuance of any detention order to which the provisions of section 10 do not apply and which has been confirmed under clause (f) of section 9 shall be one year from the date of detention, and the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of section 10 apply and which has been confirmed under clause (f) of section 9, read with sub- section (2) of section 10, shall be two years from the date of detention:
Provided that nothing contained in this section shall affect the power of appropriate Government in either case to revoke or modify the detention order at any earlier time."
24. It is evident from the scope that the Act, 1988 has been enacted since India has been facing a problem of transit traffic in illicit drugs. It was, therefore, felt that a preventive detention law should be enacted with a view to effectively immobilising the traffickers. The Central Government and the State Governments have been empowered to make orders of detention with respect to any 15 2025:JHHC:22674-DB person in respect of whom an order of detention is made under the Ordinance at any time before the 31st July, 1990 may be detained without obtaining the opinion of an Advisory Board for a period not exceeding one year from the date of his detention if the detaining authority is satisfied that such person is engaged, or is likely to engage, in illicit traffic in narcotic drugs and psychotropic substances in any area highly vulnerable to such illicit traffic.
25. The "illicit Traffic" has been defined as under
Section 2(e) of the Act, 1988 which reads hereunder as :-
2. (e) "illicit traffic", in relation to narcotic drugs and psychotropic substances, means-
(i) cultivating any coca plant or gathering any portion of coca plant;
(ii) cultivating the opium poppy or any cannabis plant;
(iii) engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter-State, export inter-State, import into India, export from India or transhipment, of narcotic drugs or psychotropic substances;
(iv) dealing in any activities in narcotic drugs or psychotropic substances other than those provided in sub-clauses (i) to (iii); or
(v) handling or letting any premises for the carrying on of any of the activities referred to in sub-clauses (i) to (iv), other than those permitted under the Naroctic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) or any rule or order made, or any condition of any licence, term or authorisation issued, thereunder and includes-
(1) financing, directly or indirectly, any of the aforementioned activities:
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2025:JHHC:22674-DB (2) abetting or conspiring in the furtherance of or in support of doing any of the aforementioned activities; and (3) harbouring persons engaged in any of the aforementioned activities:
26. Section 3 of the Act, 1988 provides power to make ordes detaining certain persons wherefrom it is evident that the competent authority if satisfied, with respect to any person (including a foreigner) that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary so to do, make an order directing that such person be detained.
But, for the 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.
27. Section 8 provides by conferment of power upon the appropriate Government that if the Government has reason to believe that a person in respect of whom a detention order has been made has absconded or is concealing himself so that the order cannot be executed, that Government may - (a) make a report in writing of the fact to a Metropolitan Magistrate or a Magistrate of the first class 17 2025:JHHC:22674-DB having jurisdiction in the place where the said person ordinarily resides; and thereupon the provisions of sections 82, 83, 84 and 85 of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply in respect of the said person and his property as if the order directing that he be detained were a warrant issued by the Magistrate; (b) by order notified in the Official Gazette direct the said person to appear before such officer, at such place and within such period as may be specified in the order; and if the said person fails to comply with such direction, he shall, unless he proves that it was not possible for him to comply therewith and that he had, within the period specified in the order, informed the officer mentioned in the order of the reason which rendered compliance therewith impossible and of his whereabouts, be punishable with imprisonment for a term which may extend to one year, or with fine, or with both.
28. Section 9 of the Act, 1988 provides constitution of an Advisory Board with an intent to achieve the purposes of sub-clause (a) of clause (4) and subclause (c) of clause (7) of article 22 of the Constitution of India with the conferment of power upon the Advisory Board that if any reference has been made and the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person, called for the purpose through the appropriate 18 2025:JHHC:22674-DB Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven weeks from the date of detention of the person concerned.
29. The maximum period of detention has been provided under Section 11 of the Act, 1988 and as provided therein any person may be detained in pursuance of any detention order to which the provisions of section 10 do not apply and which has been confirmed under clause (f) of section 9 shall be one year from the date of detention, and the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of section 10 apply and which has been confirmed under clause (f) of section 9, read with sub-section (2) of section 10, shall be two years from the date of detention.
30. It is in the backdrop of the aforesaid statutory provision, the factual aspect of the present case is to be considered in order to consider the issue as formulated hereinabove.
31. The Hon'ble Apex Court has also taken into consideration the issue of detention and agreeing with the 19 2025:JHHC:22674-DB object of the preventive detention enactments, the law has been laid down that since the power to detain a person is snatching away the liberty as enshrined as a fundamental right under the Constitution and, as such, the said power is to be exercised with all care and circumspection so that there may not be any vice of malice or the arbitrary exercise on the part of the State to snatch away the personal liberty of an individual.
32. It is for this reason also specific reference has been made under Section 3(3) of the Act, 1988 wherein Clause (5) of Article 22 of the Constitution of India has been referred, meaning thereby, the mandate of the Constitution as enshrined under Article 22 is mandatorily to be followed so as to not to subject any individual from the vice of arbitrariness for the purpose of snatching away the liberty of an individual. But, simultaneously it has also been held that if situation so warrants then the detention order can be passed but subject to fulfilment of all requirements as provided under Section 3, Section 6 and Section 8 of the Act, 1988, by taking care of that the period of detention does not exceed one year as provided under Section 11 of the Act, 1988 so as to make balance while snatching away the liberty of an individual, reference in this regard be made to the judgment rendered by Hon'ble Apex Court in the case of Mortuza Hussain Choudhary Vs. State of 20 2025:JHHC:22674-DB Nagaland and Others reported in 2025 SCC Online SC 502, wherein at para-2 Apex Court has held as follows-
"2. Preventive detention is a draconian measure whereby a person who has not been tried and convicted under a penal law can be detained and confined for a determinate period of time so as to curtail that person's anticipated criminal activities. This extreme mechanism is, however, sanctioned 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."
33. Adverting to the factual aspect of the present case, it is the admitted case that the order of detention was passed on 14.05.2024.
34. We have perused the aforesaid detention order of the petitioner. The detention order of the petitioner was issued by Respendent no.2 on 14.05.2024 and he was detained on 18.09.2024. Subsequent thereto, i.e., after passing of the order of detention, petitioner was not immediately taken into custody in execution of order of confinement. Rather, petitioner was taken into custody after lapse of a period of more than four months. Thus, 21 2025:JHHC:22674-DB petitioner was allowed to remain outside the purview of confinement order for a period more than four months approximately.
35. Thus, in this pretext, submission has been made on behalf of the petitioner that if that was the situation by not arresting the petitioner, then for what the order of detention was passed and if such was the conduct of the authority, then passing of detention order itself suggests that there was no requirement of passing the order of detention. Otherwise, the petitioner would have been taken into custody immediately after order of detention. Here, it is pertinent to note that Hon'ble Apex Court in case of Sushanta Kumar Banilk (Supra), at para-15 has said that an unreasonable and unexplained delay in securing a detenu and detaining him vitiates the detention order.
36. This Court has found substance in the said argument keeping the object of the Act, 1988 which has been enacted for the purpose of dealing with the traffickers of narcotics by putting such person on detention even without instituting an F.I.R. taking into consideration the nature of offence which is said to be crime against society.
37. The question of subjective satisfaction has also been taken. This Court, in order to appreciate the said argument, has gone through the order of detention of the petitioner. We find that in detention order dated 14.05.2024, there is 22 2025:JHHC:22674-DB reference to Chatra Sadar P.S. Case No.06 of 2021 dated 13.01.2024. But, the petitioner has annexed the copy of Judgment dated 21.02.2023(Annexure- 1 series) passed in NDPS case no. 87/2021, arising out of Chatra Sadar P.S. Case No.06 of 2021, in which the learned Special Judge (NDPS) has discharged the petitioner from all the charges. Likewise, Petitioner has already been enlarged on regular bail by the Hon'ble High Court in Chatra Sadar P.S. Case No.123 of 2020; Chatra Sadar P.S. Case No.01 of 2021 and Itkhori P.S. case No. 210 of 2020 and copy of the bail orders has been annexed by the petitioner in Annexure-1 series.
38. At this juncture, it would be important to refer the judgment delivered by the Hon'ble Apex Court in case of Sushanta Kumar Banilk (Supra), wherein Apex court has dealt the issue of vital material or vital fact withheld and not placed by the sponsoring authority before the detaining authority. Paragraph 25, 27 and 28 of the said judgment is quoted hereinbelow for ready reference-
"25. In Asha Devi v. Additional Chief Secretary to the Government of Gujarat, 1979 Cri LJ 203, this Court pointed out that:
"... if material or vital facts which would influence the minds of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not considered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal."
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27. From the above decisions, it emerges that the requisite subjective satisfaction, the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influence his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order.
28. It is clear to our mind that in the case on hand at the time when the detaining authority passed the detention order, this vital fact, namely, that the appellant detenu had been released on bail by the Special Court, Tripura despite the rigours of Section 37 of the NDPS Act, 1985, had not been brought to the notice and on the other hand, this fact was withheld and the detaining authority was given to understand that the trial of those criminal cases was pending."
39. The question of subjective satisfaction, therefore, assumes paramount satisfaction so far as the statutory mandate as provided under Section 3 and the very object of the Act, 1988 is concerned, wherein the subjective satisfaction of the concerned authority is a primary condition for passing the detention order, meaning thereby, there must not be mechanical order.
40. The connotation of subjective satisfaction means that the authority, who is proposing to put a person in confinement, is to produce all relevant documents before the sanctioning authority for its consideration before taking any decision of snatching away the personal liberty. Subjective satisfaction, therefore, means the active application of mind and such active application of mind 24 2025:JHHC:22674-DB cannot be said to be made applicable in absence of the relevant documents for which the person concerned is being detained by infringement of his fundamental right as enshrined under the Constitution of India.
41. The F.I.R. and Sanha is the basis of passing the order of detention but very surprisingly the order of discharge of the petitioner in connection with Chatra Sadar P.S. Case No.06 of 2021 passed by the Learned Special Judge (NDPS) in NDPS Case No. 87/2021 vide order dated 21.02.2023 was not placed before the Sanctioning Authority. Further, orders granting regular bail to the petitioner in Chatra Sadar P.S. Case No.123 of 2020; Chatra Sadar P.S. Case No.01 of 2021 and Itkhori P.S. case No. 210 of 2020 was not placed before the Sanctioning Authority.
42. The sanctioning authority would have applied its mind if the order of discharge and orders granting bail to the petitioner would have been placed by the authority who has proposed the order of detention.
43. The conduct of the proposing authority is further appears to be not proper since the order of detention has been given effect to after lapse of more than four months which also clarifies that the conduct of the authority who has proposed detention, said to be very casual. 25
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44. The mandate of the Act, 1988 prohibits that there must not be casual approach by the authority while passing the order of detention. The State, however, has taken the plea that the delay in arrest is caused by the petitioner himself since the petitioner was absconding. Even accepting the same, but then the procedure has been laid down under Section 8 of the Act, 1988 that what to be done by the State machinery in order to secure the arrest of such detenu. But, it is admitted case of the State that no such procedure has been taken recourse as provided under Section 8 of the Act, 1988, since, no submission to that effect has been made in the counter affidavit.
45. This Court, on consideration of the aforesaid factual aspect and applying the same on the teeth of Article 21 and 22 of the Constitution of India, is of the view that the liberty of such person cannot be taken away in such a casual manner as is the case herein.
46. This Court, therefore, is of the view that the orders of detention need interference.
47. Accordingly, the order dated 14.05.2024 passed in Memo No.18/PIT NDPS-23/2024-3039 and order dated 14.05.2024 passed in 18/PIT NDPS-23/2024-3041 issued by the Principal Secretary, Home, Prison & Disaster Management Department, Government of Jharkhand, Ranchi, are hereby quashed and set aside. 26
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48. The writ petition stands allowed.
49. Consequently, the petitioner, abovenamed, is directed to be released forthwith, if not required in any other case.
I agree (Sujit Narayan Prasad, J.)
(Rajesh Kumar, J.) (Rajesh Kumar, J.)
A.F.R.
Birendra/
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