Tripura High Court
Sri Litan Paul vs The State Of Tripura on 22 June, 2022
Author: S.G. Chattopadhyay
Bench: Indrajit Mahanty, S. G. Chattopadhyay
Page - 1 of 15
HIGH COURT OF TRIPURA
AGARTALA
W.P(Crl.) No.11 of 2021
Sri Litan Paul,
Son of Sri Bakul Paul,
Resident of Kasihpur, Reshambagan,
P.S-East Agartala, District-West Tripura.
-----Petitioner(s).
On behalf of :
Sri Mithan Paul @Buttu @ Mithun Paul,
Son of Sri Bakul Paul,
Vill- Netajinagar Coloney (Uricherra)
P.S-Kanchanpur, District-North Tripura.
-----Custody Accused Person.
Versus
1. The State of Tripura,
Represented by the Chief Secretary, Government of
Tripura, New Secretariat Building, Kunjaban, Agartala,
Agartala.
2. The Secretary,
Department of Home, Government of Tripura, New
Secretariat Building, Kunjaban, Agartala.
3. The Director General of Police,
Government of Tripura, Fire Brigade Chowmuhani,
Agartala.
4. The Assistant Inspector General of Police,
Government of Tripura, Fire Brigade Chowmuhani,
Agartala.
5. The Superintendent of Police,
North Tripura District, Dharmanagar,
North Tripura District.
6. The Sub-Divisional Police Officer (SDPO),
Kanchanpur, North Tripura District.
7. The Officer-in-Charge,
Kanchanpur Police Station, Kanchanpur, North Tripura.
8. The Chairman,
Advisory Board, PIT NDPS Act, 1988,
Kunjaban, Agartala, West Tripura.
----- Respondent(s)
W.P(Crl.) No.11 of 2021
Page - 2 of 15 BEFORE HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY For Petitioner(s) : Mr. A. K. Pal, Advocate, For Respondent(s) : Mr. Ratan Datta, Public Prosecutor.
Mr. Biswanath Majumder, CGC.
Date of hearing : 1st June, 2022.
Date of Judgment & Order : 22nd June, 2022.
Whether fit for reporting : Yes.
JUDGMENT AND ORDER
(S.G. Chattopadhyay, J)
We have heard Mr. A. K. Pal, learned counsel appearing for the detenue as well as Mr. Ratan Datta, learned public Prosecutor appearing for the State-respondents. Mr. Biswanath Majumder, learned CGC has appeared for the Union of India who submits that the Union of India has received copy of the detention order in due course. [2] Detenue Mithan Paul @ Buttu @ Mithun Paul was detained under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act, 1988 (PITNDPS Act, hereunder) by an order dated 13.10.2021 issued by the Secretary to the Government of Tripura in the Home Department. The grounds of his detention are stated to be as under:
"Grounds for detention Mithan Paul @ Butto @ Mitun S/o Shri Bakul Paul of Netajinagar, PS-Kanchanpur, North Tripura.
Following are the grounds for detention Mithan Paul @Butto @ Mitun, S/o Shri Bakul Paul of Netaji W.P(Crl.) No.11 of 2021 Page - 3 of 15 Nagar, P.S-Kanchanpur, North Tripura 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 Mithan Paul @Butto @ Mitun, S/o Shri Bakul Paul was involved in the following cases:-
(i) Kanchanpur PS Case No. 2018KCP033 dated 23.04.2018 U/S 21(c) of NDPS Act,1985.
(ii) Kanchanpur PS Case No. 2019KCP036 dated 21.05.2019 U/S 21(c)/25/29 of NDPS Act,1985.
(iii) Kanchanpur PS Case No. 2020KCP009 dated 27.02.2020 U/S 21(b)/29 of NDPS Act,1985.
[2] Mithan Paul @Butto @ Mitun, S/o Shri Bakul Paul of Netaji Nagar, PS-Kanchanpur, North Tripura has association with the smugglers of NDPS articles and illicit drug traffickers in connection with Kanchanpur PS case No. Kanchanpur PS Case No. 2018KCP033 dated 23.04.2018 U/S 21(c) of NDPS Act,1985, Kanchanpur PS Case No. 2019KCP036 dated 21.05.2019 U/S 21(c)/25/29 of NDPS Act,1985 and Kanchanpur PS Case No. 2020KCP009 dated 27.02.2020 U/S 21(b)/29 of NDPS Act,1985.
[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 PITNDPS will also help Police in initiating financial investigation laid down under Chapter-V(A) of NDPS Act.
[4] He is a habitual offender and he is continuously involved in illegal business of NDPS especially in Kanchanpur Sub-Divisional areas. Action for prosecution u/s 110 Cr. PC is being initiated him. As a result, his illegal activities there is a serious threat to the health and welfare of the people of Kanchanpur areas specially the youths in particular. Mithan Paul is a dreaded and hard-core criminal and despite being arrested for similar cases on several occasions, he has not restrained himself from illegal trade of NDPS. Even the local publics are presently aggrieved for his illegal activities.
Such kind of criminals are dangerous and detrimental for the society where several youths are falling pray to drug addiction without being aware of the evil consequences. If this type of clandestine but organised illegal business is carried on by Mithan Paul in this part of the State, there is very possibility of further deleterious effect to the youth group in adjoining areas and the whole W.P(Crl.) No.11 of 2021 Page - 4 of 15 State in general too in a larger magnitude. Drug addiction is a menace which completely destroy the individual mentally and physically which usually lead the drug user to resort to other crime like burglary, theft, crime against Women etc."
[3] The detenue was served with the order of detention along with the grounds thereof on 20.10.2021. Pursuant to the order, he was detained in Kanchanpur sub-jail on the same day i.e. on 20.10.2021. Copies of the documents relied on by the detaining authority were also served on the detenue. He also acknowledged the receipt of those documents. The detenue was apprised of his right to make representation to the Central/State Government, the detaining authority as well as to the Advisory Board.
[4] The detenue had submitted representation on 20.11.2021 to the detaining authority claiming that he was falsely implicated in all the three NDPS cases in which charge sheet was laid without application of mind. He claimed that in none of those cases, any contraband was recovered from his possession. As a result, he was granted bail in all those cases by the learned Trial Court but the detaining authority issued the detention order without even considering the bail orders passed in those cases. The detenue further claimed that since he did not commit any offence under NDPS Act, the question of his being a repeated offender did not arise. According to the detenue, the detaining authority issued the detention order without application of mind and, therefore, the said order W.P(Crl.) No.11 of 2021 Page - 5 of 15 should be quashed. His representation was rejected by the detaining authority by an order issued on 09.12.2021 which reads as under:
"O-R-D-E-R WHEREAS, a detention order vide No.15(9)- PD/2021(P-V) dated 12.10.2021 under PITNDPS Act, 1988 was issued by the Home Department, Government of Tripura against Shri Mithan Paul @Butto @ Mitun, S/o Shri Bakul Paul of Netajinagar, PS-Kanchanpur, North Tripura District on the basis of a proposal received from the Director General of Police, Tripura.
AND WHEREAS, Shri Mithan Paul was detained on 20.10.2021 under PITNDPS Act, 1988 in pursuance to the aforesaid order of the Home Department dated 12.10.2021.
AND WHEREAS, Shri Mithan Paul at present under detention at Kanchanpur Sub-Jail, North Tripura has submitted a representation to the Secretary, Home Department, Government of Tripura 20.11.2021 for releasing him from the present detention.
AND WHEREAS, the representation filed by Shri Mithan Paul and the parawise comments submitted by Superintendent of Police, North Tripura have been carefully examined and found that he is a repeated offender and he continuously involved in illicit trafficking of NDPS and that his claim of being falsely implicated by police does not stand.
NOW, THEREFORE, the State Government after careful examination of the records available is pleased to reject the prayer/representation of Shri Mithan Paul for his release from detention under the PITNDPS Act, 1988."
[5] We have been taken through the official records maintained by the department. It has appeared to us that in due course the matter was referred to the Advisory Board in terms of Section 9(b) of the PITNDPS Act along with necessary documents. To provide an opportunity of personal hearing, the Advisory Board asked the detaining authority to produce the detenue before the Board if the detenue so desired. W.P(Crl.) No.11 of 2021
Page - 6 of 15 Accordingly, the detenue was produced before the Advisory Board on 23.11.2021. He was heard by the Advisory Board and his statement was also recorded by the Advisory Board where he stated that he was shocked to know that even after being granted bail in all the three cases registered against him under NDPS Act, he was again detained under a preventive detention order. The detenue stated before the Advisory Board that he was maintaining his family with the income generated from his grocery business. All the three cases were planted against him and he had no connection with the alleged illegal activities. The Advisory Board however, opined that the detention order was based on adequate materials and the detaining authority issued the order after proper application of mind. The Advisory Board communicated its opinion dated 21.12.2021 to the detaining authority.
[6] Pursuant to the report received from the Advisory Board, the detaining authority by order dated 27.12.2021 confirmed the detention order in terms of Clause (f) of Section 9 of the PITNDPS Act for a period of one year from the date of his detention i.e. from 20.11.2021. The said confirmation order was also served on the detenue at Kendriya Sansodhanagar, Bishalgarh on 01.02.2022 in presence of the witnesses. [7] Aggrieved by his detention, the petitioner has challenged the detention order by making this application under Article 226 of the W.P(Crl.) No.11 of 2021 Page - 7 of 15 Constitution seeking issuance of a writ of a habeas corpus, commanding the respondents to release him from detention.
[8] The petitioner has challenged the detention order mainly on the following grounds:
(i) The order of detention is vitiated by non-application of mind of the detaining authority.
(ii) The detaining authority did not consider the fact that the detenue was granted bail in the 03 NDPS cases lodged against him. The detaining authority should have considered the bail orders to arrive at a subjective satisfaction about the need of preventive detention of the detenue.
(iii) The last case was registered against him under NDPS Act in 2020. There was no complaint against him that he was likely to commit further offence. In these circumstances, the detaining authority should not have passed a preventive detention order against the detenue.
[9] Counter affidavit was filed by the State-respondents on 27.04.2022 in which it was asserted that the detenue was engaged in nefarious activities in trafficking of NDPS and forming of illegal business ring for proliferation of such activities over a quite long period of time. He was booked in as many as three cases for violation of the various provisions of the NDPS Act and after collecting adequate materials against him charge sheet was laid in the following three cases:
(i) Kanchanpur PS Case No. 2018KCP033 dated 23.04.2018 U/S 21(c) of NDPS Act,1985.W.P(Crl.) No.11 of 2021
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(ii) Kanchanpur PS Case No. 2019KCP036 dated 21.05.2019 U/S 21(c)/25/29 of NDPS Act,1985.
(iii) Kanchanpur PS Case No. 2020KCP009 dated 27.02.2020 U/S 21(b)/29 of NDPS Act,1985. [10] It was further asserted by the State-respondents that he was a repeated offender under the NDPS Act and, therefore, with a view to preventing him from engaging in illegal traffic and narcotic drugs and psychotropic substances, it was necessary to make an order directing his preventive detention.
[11] Mr. A. K. Pal, learned counsel appearing for the detenue has submitted that the detaining authority did not consider the fact that no contraband was seized from the possession of the detenue in any of the NDPS cases registered against him and moreover, the detaining authority did not also consider the fact that he was granted bail in all the three cases registered against him and there was no report that he further engaged himself in trafficking NDPS. Counsel contends that non-consideration of these essential facts has vitiated the detention order due to non application of mind. It is contended by Mr. A. K. Pal, learned counsel that petitioner is a poor man who is the only breadwinner of his family consisting of his old and ailing parents. According to learned counsel, the petitioner runs a grocery shop and he has no connection with trafficking in NDPS. Counsel therefore, urges the Court for quashing the preventive detention order. W.P(Crl.) No.11 of 2021
Page - 9 of 15 [12] Mr. Ratan Datta, learned Pubic Prosecutor has contended that in the detention order, the grounds of the detention of the petitioner have been indicated. Moreover, the grounds of his detention more elaborately discussed in a separate sheet of paper have also been communicated to the petitioner along with the documents at the time of service of the detention order on the detenue. Detenue was also informed about his right to make a representation against the detention order. Mr. Datta, learned Public Prosecutor has contended that the detenue exercised his right to representation by submitting a written representation to the detaining authority and it would appear from the said written representation that there is no complaint of any infraction of the provisions of Sub-Section (1), (2) and (3) of Section 3 of the PITNDPS Act and Clause (5) of Article 22 of the Constitution. Counsel contends that as many as three cases under NDPS Act has already been registered against the detenue and still he is pursuing his illegal activities in the trafficking of NDPS. Therefore, his preventive detention was absolutely necessary to maintain law and order in the society by preventing the detenue from further engaging in illicit trafficking in NDPS. Counsel has therefore, urged the Court for dismissing the petition.
[13] In Sub-Section (3) of Section 3 of PITNDPS Act it is provided that for the purpose of Clause (5) of Article 22 of the Constitution, the communication, to a person detained in pursuance of W.P(Crl.) No.11 of 2021 Page - 10 of 15 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 cases and for reasons to be recorded in writing, not later than 15 days, from the date of detention. [14] On bare reading of Section 3(1) of the NDPS Act, it would emerge that a detention order under Section 3(1) can be issued on the subjective satisfaction of the detaining authority that, with a view to preventing a person from engaging in illicit trafficking in narcotic drugs and psychotropic substances, preventive detention of such person is necessary. In a catena of decisions, the Apex Court has made it absolutely unambiguous that the documents and all other materials including police report, if any, proposing such detention are to be supplied to the detenue so as to enable him to make an appropriate and effective representation challenging the grounds of detention.
[15] In Sub-Section (3) of Section 3 of the PITNDPS Act it has been provided as under:
―3. Power to make orders detaining certain persons.-- (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.‖ W.P(Crl.) No.11 of 2021 Page - 11 of 15 [16] Clause (5) of Article 22 provides that when any person is detained in pursuance of an order made under any order providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
[17] Clause (4) of Article 22 of the Constitution provides as under:
―22. Protection against arrest and detention in certain cases.--
(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless -
(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) or clause (7); or.
(b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).‖ [18] As discussed, the detention order along with the grounds of detention and all other material documents were served on the detenue within the stipulated time and he was thus afforded the earliest opportunity of making a representation against such order. Undisputedly, the detenue made a written representation on 20.11.2021 which was rejected by the W.P(Crl.) No.11 of 2021 Page - 12 of 15 detaining authority by an order dated 09.12.2021 after consideration of the representation on merit.
[19] It is on record that the detaining authority referred the matter to the Advisory Board within the stipulated period of time. The Advisory Board heard the detenue in person and recorded his elaborate statement and sent a written report to the detaining authority approving the detention order. Thereafter, the detaining authority confirmed the detention order for a period of one year w.e.f the date of detention i.e. from 13.10.2021. Nowhere, in his written representation the detenue has made any complaint of any violation of Sub-Sections (2) and (3) of Section 3 of the NDPS Act or Clauses (4) and (5) of Article 22 of the Constitution. The only challenge of the detenue to the detention order is that the detaining authority did not consider the material documents to arrive at a subjective satisfaction about the need of preventive detention of the petitioner (detenue). For this purpose, this Court in the judgment dated 01.06.2022 in the case of Sri Sushanta Kumar Banik Vrs. The State of Tripura and others has elaborately discussed the law. On the issue of subjective satisfaction of the detaining authority, the decision of the Apex Court in Shalini Soni Vrs. Union of India: reported in (1980) 4 SCC 544 was referred to in which the Apex Court held that whenever a decision making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation of such authority to apply its mind to pertinent and proximate W.P(Crl.) No.11 of 2021 Page - 13 of 15 matters only eschewing the irrelevant and the remote. Observation of the Apex Court in the said judgment is as under:
―7..........Communication of the grounds pre-supposes the formulation of the grounds and formulation of the grounds requires and ensures the application of the mind of the detaining authority to the facts and materials before it, that is to say to pertinent and proximate matters in regard to each individual case and excludes the elements of arbitrariness and automatism (if one may be permitted to use the word to describe a mechanical reaction without a conscious application of the mind). It is an unwritten rule of the law, constitutional and administrative, that whenever a decision making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only eschewing the irrelevant and the remote. Where there is further an express statutory obligation to communicate not merely the decision but the grounds on which the decision is founded, it is a necessary corollary that the grounds communicated, that is, the grounds so made known, should be seen to pertain to pertinent and proximate matters and should comprise all the constituent facts and materials that went in to make up the mind of the statutory functionary and not merely the inferential conclusions. Now, the decision to detain a person depends on the subjective satisfaction of the detaining authority. The Constitution and the statute cast a duty on the detaining authority to communicate the grounds of detention to the detenue. From what we have said above, it follows that the grounds communicated to the detenu must reveal the whole of the factual material considered by the detaining authority and not merely the inferences of fact arrived at by the detaining authority. The matter may also be looked at from the point of view of the second fact of Art. 22(5). An opportunity to make a representation against the order of detention necessarily implies that the detenue is informed of all that has been taken into account against him in arriving at the decision to detain him. It means that the detenue is to be informed not merely, as we said, of the inferences of fact but of all the factual material which have led to the inferences of fact. If the detenue is not to be so informed the opportunity so solemnly guaranteed by the Constitution becomes reduced to an exercise in futility. Whatever angle from which the question is looked at, it is clear that "grounds" in Art. 22(5) do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences. The W.P(Crl.) No.11 of 2021 Page - 14 of 15 'grounds' must be self- sufficient and self explanatory. In our view copies of documents to which reference is made in the `grounds' must be supplied to the detenue as part of the `grounds'.‖ [Emphasis added] [20] Among the 03 cases pending against the detenue, the last case was registered in 2020 which cannot be said to be an irrelevant and remote mater for the purpose of arriving at a subjective satisfaction about the need of the preventive detention of the petitioner.
[21] It is apparent from the record that repeated involvement of the petitioner in NDPS cases and the police report available against him made the detaining authority apprehensive that unless prevented by a detention order he would further engage himself in illicit trafficking in narcotic drugs and psychotropic substances. The detaining authority therefore, issued the impugned order of preventive detention. All the documents on the basis of which the detaining authority formed its opinion were supplied to the detenue. In his written representation detenue did not make any complaint that he could not submit an effective representation for want of any particular document. There is no complaint of any violation of the safeguards provided under Clauses (4) and (5) of Article 22 of the Constitution.
[22] In these circumstances, we are of the considered view that there is no ground to interfere with the impugned detention order.
Resultantly, the petition stands dismissed.W.P(Crl.) No.11 of 2021
Page - 15 of 15 [23] In terms of the above, the matter is disposed of. Department's file and the case diary be returned to the learned Public Prosecutor forthwith.
Pending application(s), if any, shall also stand disposed of.
(S.G.CHATTOPADHYAY), J (INDRAJIT MAHANTY), CJ Dipankar W.P(Crl.) No.11 of 2021