Tripura High Court
Kabir Hussain vs The State Of Tripura Represented By The ... on 21 June, 2022
Author: S.G.Chattopadhyay
Bench: Indrajit Mahanty, S.G.Chattopadhyay
1
HIGH COURT OF TRIPURA
AGARTALA
WP(C)(HC) 1/2022
KABIR HUSSAIN, S/O Safik Miah, resident of Birampur, P.O. &
PS. Jatrapur, Dist. Sepahijala Tripura
-----Petitioner(s)
On behalf of AKTER HOSSAIN, son of Safik Miah, resident of
Birampur, P.O. & PS. Jatrapur, Dist. 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, PO. Khejurbagan, PS. NCC, Sub-Division:
Agartala, District- West Tripura, Pin-. 799010.
2.THE SECRETARY, Department of Home, Government of
Tripura, New Secretariat Complex, PO. Khejurbagan, PS. NCC,
Sub-Division: Agartala, District: West Tripura, Pin- 799010.
3.THE DIRECTOR GENERAL OF POLICE, Tripura, having office
at Police Head Quarters, Fire Brigade Chowmohani, PO-
Agartala, PS: West Agartala, Sub-Division- Agartala, District-
West Tripura, Pin- 799001
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)
WP(C)(HC)1/2022 2 BEFORE HON'BLE THE CHIEF JUSTICE MR.INDRAJIT MAHANTY HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY For the Appellant(s) : Mr. Subrata Sarkar, Sr.Adv.
Mr. K.D.Singha, Adv.
For the Respondent(s) : Mr. B.Majumder, ASG Mr. Ratan Datta, PP.
Mr. S.Debnath, Addl. PP.
Whether fit for reporting: YES / NO
Judgment & Order (Oral)
21.06.2022
(S.G.Chattopadhyay), J
[1] Heard Mr.Subrata Sarkar, learned Sr.Advocate
appearing for the detenue along with Mr.K.D.Singha, learned advocate.
Also heard Mr. Bidyut Majumder, learned ASG representing the Union of India as well as Mr. S.Debnath, learned Addl. PP appearing for the State respondents. [2] The validity and propriety of the of the order of detention dated 09.09.2021 passed by the Secretary to the Government of Tripura (Home Department) and the final order dated 03.12.2021 confirming the preventive detention of the detenue for a period of 01 year are in challenge in this writ petition.
WP(C)(HC)1/2022 3 [3] The factual backgrounds, as stated in the detention order, are that the Director General of Police, Tripura proposed to the Detaining Authority for preventive detention of Akter Hossain on the grounds that the detenue was a repeated offender under the NDPS Act and there were reliable materials before police on the basis of which police was apprehensive that unless deterred by an order of preventive detention, the detenue would continue to indulge in nefarious activities involving trafficking in NDPS. Involvement of the detenue in the following cases was considered by the Detaining Authority: (i) Kalamchoura P.S. Case No.2019 KLC 069
dated 22.11.2019 under Sections 353, 302 read with Section 34 IPC.
(ii) Sonamura P.S. Case No.2020 SNM 026 dated 29.03.2020 under Sections 22(C) and 29 of the NDPS Act.
(iii)Kakraban P.S. case No.2019 KKB 112 dated 07.12.2019 under Section 382(D) IPC [4] The grounds which were considered by the Detaining Authority to arrive at a subjective satisfaction WP(C)(HC)1/2022 4 about the necessity of preventive detention of the detenue under Section 3(1) of the PIT NDPS Act are stated to be as under:
"Grounds for detention Akter Hossain S/O Safik Miah of Birampur, PS- Jatrapur, Sepahijala District"
Following are the grounds for detention Akter Hossain S/O Safik Miah of Birampur, PS- Jatrapur, Sepahijala District under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act,1988. [1] As per report of Director General of Police, Tripura, the aforesaid Akter Hossain S/O Safik Miah of Birampur, PS- Jatrapur, Sepahijala District was involved in the following cases:-
(i) Kalamchoura P.S. Case No.2019 KLC 069 dated 22.11.2019 U/S 353/302/34 of IPC.
(ii) Sonamura P.S. Case No.2020 SNM 026 dated 29.03.2020 U/S 22(C)/29 of NDPS Act.
(iii)Kakraban P.S. case No.2019 KKB 112 dated 07.12.2019 U/S 382(D) of IPC and he is still operating the help of his associates and supporters in transportation of NDPS articles.
[2] Akter Hossain has association with the smugglers of NDPS articles and illicit drug traffickers in connection with Kalamchoura PS case No.2019KLC069 dated 22.11.2019 U/S 353/302/34 of IPC, Sonamura P.S. Case No.2020SNM026 dated 29.03.2020 U/S 22(C)/29 of NDPS Act and Kakraban PS case No.2019KKB112, dated 07.12.2019 U/S 382(D) of IPC and he is still operating the help of his associates and supporters in transportation of NDPS articles. [3] The person is still active in illicit trafficking of NDPS articles as revealed from field information but could not be arrested red-handed again and issue of detention order under WP(C)(HC)1/2022 5 PITNDPS will also help Police in initiating financial investigation laid down under Chapter-V(A)of NDPS Act. [4] He is a repeated offender and is continuously doing illegal activities regarding transportation of NDPS articles. This is very dangerous for the society at large where several youths are heading towards drug addiction, which further decrease the national productivity in all walks of life. Despite of arrest, Akter Hossain S/O Safik Miah of Birampur, P.S-Jatrapur did not mend his ways and is continuously spoiling the future generation.
[5]It is essential to keep Akter Hossain behind the bars in the national interest since this drug addiction not only spoil the individual drug addict but also spoils the careers of youths. Under the influence of drugs, youths are easily motivated towards social crimes which may further lead to communal violence, hatred among communities and even international tensions, since Tripura is having Indo-Bangladesh border. This drug addiction encourages youths to commit crime like chain snatching, bike theft, burglary, dacoity etc. when they need money to fulfill their urges for drugs.
[6] He is spoiling the future youths in our society and making them drug addicts. It is a social crime. Therefore, his detention under PIT NDPS Act is required for eradication of the menace of drugs.
(Sd/-Illegible) SECRETARY HOME DEPARTMENT GOVERNMENT OF TRIPURA"
[5] The detention order along with copies of the essential documents was served on the detenue on 23.09.2021 and he has been undergoing detention in District Jail at Udaipur since then.
[6] The Detaining Authority referred the matter to the State Advisory Board under Section 9(b) of the PIT WP(C)(HC)1/2022 6 NDPS Act under a communication dated 27.10.2021. The State Advisory Board heard the detenue in person and recorded his statement. The detenue claimed before the Board that no NDPS was ever recovered from his possession and he was detained by police without any ground. The detenue pleaded before the Board that he was maintaining his wife, 2 children and parents with his earnings from cultivation.
[7] The Advisory Board, however, viewed that preventive detention in the case was justified because the detenue was continuously carrying on nefarious activities involving illicit trafficking in narcotic drugs and psychotropic substances and its deterrence was necessary. It sent its report dated 29.11.2021 to the Detaining Authority. On the basis of the report received from the State Advisory Board, the Detaining Authority confirmed the detention order for a period of 01 year w.e.f. 23.09.2021 by an order dated 03.12.2021. WP(C)(HC)1/2022 7 [8] It is submitted by Mr.B.Majumder, learned ASG, that the detention order has been communicated to the Union of India in due course.
[9] The State respondents have filed counter affidavit on 30.05.2022 in which the respondents have asserted that 2100 yaba tablets wrapped in a plastic pouch was recovered and seized from the possession of the detenue along with a motor bike without registration number and later it was discovered that the said motor bike was a stolen property. It was further asserted by the state respondents that the detenue engaged himself in smuggling NDPS across the border and police was apprehensive that it would not be possible to deter him from such nefarious activities without his preventive detention under Section 3(1) of the PIT NDPS Act. Respondents have stated that the detention order is well founded and the grounds of detention along with the copies of the essential documents have been served on the detenue within stipulated time and there is no complaint of any infraction of the safe guards provided under Article WP(C)(HC)1/2022 8 22(5) of the Constitution. The following averments of the state respondents are considered relevant for the purpose of appreciation of the case:
"20.That, the averments so made in Para 18 that the detenue was not intimated by the authority as to when the Advisory board was constituted nor the detenue was asked about his desires to be heard in person before the Advisory Board as per the Mandatory requirements of provision of Section 9 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988(in short PIT NDPS Act) and /or though in the order of confirmation of detention dated 03.12.2021 it has been inter-alia mentioned that as per section 9 of the PITNDPS Act, the matter was referred to the Advisory Board on 27.10.2021 and /or the Advisory Board after examination of records and documents has passed its report on 29.11.2021 wherein it has inter-alia opined that the detaining authority has sufficient reasons, in passing the order of detention. But it is not known that what type of records and documents were examined by type Advisory Board and the Report of the Advisory Board dated 29.11.2021 as stated above has not been served or intimated upon the detenue which is amounting to gross violation of the mandatory provision of law and as such the impugned detention order is liable to be set-aside/ quashed are absolutely false and hence denied by the Answering respondents as because of the fact, after execution of the order of detention dated 09.09.2021 the detenue petitioner was supplied with all relevant documents and he was made aware that against the order of detention the detenue petitioner has got his right to file a representation to the State Government, Central Government and Advisory Board, he was also made aware that he would be supplied with all necessary articles to make such effective representation against the order of detention dated 09/09/2021.
It is to mention here that reference was made to Advisory Board on 27th October, 2021 and as per order dated 06.11.2021 passed by the Advisory Board, detenue was produced before the Advisory Board on 11.11.2021 and on his production before the Advisory Board on the same date he made his submission before the Advisory Board on 11.11.2021. The advisory board after hearing the detenue in person and after careful consideration materials placed WP(C)(HC)1/2022 9 before the Advisory Board, such as Grounds of detention of the detenue that he was involved in three number of cases, Report of the DGP that the detenue had association with the smuggling of NDPS Articles and illicit Traffic in Narcotic Drugs and Psychotropic substance which are harmful and prejudicial to the society and as such he spoiling the youth of the district, was please enough to pleased enough to form an opinion dated 29th November,2021 that the satisfaction of the detaining authority was not mechanical and the authority was in full awareness of mind while passing the detention order. Accordingly the advisory board disposed of the reference by uploading the order of detention 09/09/2021.
21.That, the averments so made in para 19 the instant writ petition that to the effect that it is evident that no case u/s 3(1) of the PITNDPS Act, was even prima facie made out against the detenue and /or the detention order is wholly beyond the parameter of law and / or accordingly the same is liable to be quashed and / or set aside are all false hence denied with the answering respondents. In this regard the answering respondents most humbly submits that, the grounds on which the proposal for detention was initiated are well substantiated through investigation and submission of charge sheets against the detenue in connection with SNM PS case no 26/2020 u/s22(C)/25/29 NDPS Act and KLC PS case No 69/2019 u/s 353/302/34 IPC on the strength of evidence collected and produced by the respective Investigating Officers. Whereas the detenue was again arrested in connection with KKB PS case no 112/2019 u/s 382(D) IPC based upon recovery of stolen motor bike from his possession while he was arrested in c/w SNM PS case no 26/2020 u/s 22(C)/25/29 NDPS Act as mentioned above.
In the above conspectus the answering respondents most humbly submits that The grounds on which the detention proposal was initiated are well substantiated through investigation and submission of charge sheets against the detenue in r/o SNM PS case no 26/2020 u/s 22(C)/25/29 NDPS Act and KLC PS case no 69/2019 u/s 353/302/34 IPC on the strength of evidence collected and produced by the respective IOs. Whereas the detenue was again arrested in c/w KKB PS case no 112/2019 u/s 382(D) IPC based upon recovery of stolen motor bike from his possession while he was arrested in c/w SNM PS case no 26/2020 u/s 22(C)/25/29 NDPS Act as mentioned above."
WP(C)(HC)1/2022 10 [10] Mr. Sarkar, learned senior advocate, appearing for the detenue has contended that detenue was initially arrested in Sonamura P.S. Case No.2020/SNM/026 under Sections 22(C),25 and 29 of the NDPS Act 1985 on false charges of recovery and seizure of NDPS from his possession. While he was in custody, he was shown arrested in KLC P.S Case No.2019/KLC/069 under Sections 353, 302 read with Section 34 IPC which had no connection with NDPS. Counsel contends that the detenue was also booked under Kakraban PS case No. 2019 KKB 112 under Section 382(D) IPC. In all those cases he was granted bail by the trial court and the Detaining Authority did not refer to those bail orders in the detention order which indicates that the Detaining Authority did not apply its mind to the essential facts of the case to justify the necessity of preventive detention of the detenue. Learned counsel has contended that the cases which have been considered by the Detaining Authority for the purpose of forming its opinion about the necessity of preventive detention of the detenue are all remote and stale matters which do not have any relevance in this case. Learned WP(C)(HC)1/2022 11 counsel contends that grounds on which the preventive detention order is passed have no probative value and these were extraneous to the scope, purpose and object of Section 3(1) of the PIT NDPS Act. Learned counsel, therefore, urges the court to set aside the impugned detention order and release the detenue. [11] The State counsel on the other hand supports the detention order and contends that since the detenue was granted bail in the NDPS cases and there were materials before the Detaining Authority to believe that he was likely to continue with the nefarious activities in trafficking NDPS, the Detaining Authority arrived at the subjective satisfaction that it was necessary to issue a detention order to deter him from carrying out such illicit activities and accordingly the detention order was issued. Counsel has contended that the detention order and copies of all documents on the basis of which the detention order was issued were supplied to the detenue in time to afford him the earliest opportunity to make an effective representation against the detention order and as such the WP(C)(HC)1/2022 12 detention order cannot be faulted with. Learned counsel, therefore, urges the court for rejecting the petition. [12] We have perused the entire record and considered the whole facts and circumstances of the case as well as the submissions made by learned counsel appearing for the parties.
[13] Similar cases have recently come up for our consideration where we have observed that the power of preventive detention under Section 3(1) of the PIT NDPS Act entrusted to the executive authority is an extraordinary power which should be exercised with care and caution. We have set aside some of the detention orders on the ground that the Detaining Authority issued such order considering remote and stale matters and it could not come out with genuine reasons as to how it was apprehensive that without a preventive detention order it was not possible to deter the detenue from carrying out the nefarious activities involving trafficking in NDPS. In the present case also the Detaining Authority seems to have considered 03 cases, only one of which relates to NDPS. WP(C)(HC)1/2022 13 Two of those matters date back to 2019 and the other matter dates back to 29.03.2020 whereas the detention order was issued on 09.09.2021. In SAMA ARUNA VERSUS STATE OF TELENGANA AND ANOTHER reported in (2018)12 SCC 150, the Hon'ble Apex Court categorically held that stale matters cannot be considered relevant for arriving at the subjective satisfaction that the detenue must be detained. Observation of the Apex Court in paragraph 17 of the judgment in this regard is as under:
"17. We are, therefore, satisfied that the aforesaid detention order was passed on grounds which are stale and which could not have been considered as relevant for arriving at the subjective satisfaction that the detenu must be detained. The detention order must be based on a reasonable prognosis of the future behavior of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case. A detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. See G. Reddeiah v. State of A. P. and, and P.U. Iqbal v. Union of India."
[14] This apart, long before the issuance of the detention order, detenue was released on bail in all those WP(C)(HC)1/2022 14 cases. Apparently, the Detaining Authority did not consider those bail orders because there is no reference to those orders in the detention order. The learned Addl. PP could not inform us as to whether the detenue engaged himself in any prejudicial activities after he was granted bail to necessitate his preventive detention. [15] As there is no reference in detention order to the orders passed by the courts granting bail to the detenue, the detention orders are obviously vitiated by non consideration of vital and essential materials. [16] Even though the detenue stated before the Advisory Board that he submitted a representation against the detention order, the state counsel submits that no such representation was submitted by the detenue. Counsel of the detenue on the other hand, contends that the representation submitted by the detenue is still pending for consideration of the Detaining Authority. Detenue has, however, submitted copy of his representation [Annexure-6 to this petition] which carries the seal of the District Jail, Udaipur to show that the WP(C)(HC)1/2022 15 representation was received at the District Jail on 05.10.2021. Moreover, the State counsel could not show any order passed by the Detaining Authority disposing the said representation.
[17] Having gone through the grounds of the detention order and the materials relied on by the Detaining Authority in passing the detention order, we are of the considered view that the grounds which may lead the Detaining Authority to the subjective satisfaction for issuing a preventive detention order are completely non- existent in the present case and as such the detention order is liable to be set aside.
[18] Having observed thus, we are persuaded to interfere with the detention order dated 09.09.2021[Annexure-5 to this petition] and the final order dated 03.12.2021 [Annexure-7 to this petition] and hence, these are set aside and quashed. The detenue shall be released forthwith if not required in any other case. WP(C)(HC)1/2022 16 In the result, this petition stands allowed and disposed of.
[19] Copy of this order be supplied to Mr.S.Debnath, learned Addl.PP, appearing for the State respondents.
The record, as produced by Mr.Debnath,
learned Addl.PP, be returned.
(S.G.CHATTOPADHYAY),J (INDRAJIT MAHANTY),CJ
Saikat Sarma, P.S-II
WP(C)(HC)1/2022