Chattisgarh High Court
Chandrika Prasad Sahu vs State Of Chhattisgarh on 7 April, 2025
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2025:CGHC:16159-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WP(CR) No. 186 of 2025
Chandrika Prasad Sahu S/o Sipahi Lal Sahu Aged About 54 Years R/o
Village- Pihrid Police Station- Malkharauda, District- Sakti (C.G.),
Prisoner Through - Next Friend Father Sipahi Lal Sahu S/o Fulsay
Sahu, Aged About 70 Years, R/o Village- Pihrid, Ward No. 1,
Shikaripara, Police Station- Malkharauda, District- Sakti (C.G.).
... Petitioner
versus
1 - State Of Chhattisgarh Through The Secretary, Home Department,
Mantralaya, Mahanadi Bhawan, Nawa Raipur, Atal Nagar, District-
Raipur Chhattisgarh.
2 - The Commissioner -Cum Detaining Authority Under The Prevention
Of Illicit Traffic In Narcotic Drugs And Psychotropic Substances Act,
1988, Bilaspur Division, Bilaspur C.G.
3 - Superintendent Of Police, Sakti, District- Sakti (C.G.).
4 - Station House Officer, Police Station- Malkharauda, District- Sakti
(C.G.).
... Respondents
Digitally signed
by VASANT
VASANT KUMAR Date: KUMAR 2025.04.11 13:08:47 +0530 2 (Cause-title taken from Case Information System) For Petitioner : Mr. Dharmesh Srivastava, Advocate For Respondents-State : Mr. Sangharsh Pandey, Government Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Arvind Kumar Verma, Judge Order on Board Per Ramesh Sinha, Chief Justice 07.04.2025
1. Heard Mr. Dharmesh Srivastava, learned counsel for the petitioner as well as Mr. Sangharsh Pandey, learned Government Advocate, appearing for the State/respondents.
2. The present petition under Article 226 of the Constitution of India has been filed with the following relief(s):-
"10.1 That, this Hon'ble Court may kindly be pleased to call for the entire records pertaining to the case of the petitioner for kind perusal of this Hon'ble Court.
10.2 That, this Hon'ble Court may kindly be pleased to allow the petition by setting aside the impugned order dated 20.02.2025 passed by the learned Commissioner-cum-3
Detaining Authority, Bilaspur Division, Bilaspur in Case No. 2024910100038/B-
1231/2024.
10.3 That, this Hon'ble Court may kindly be pleased to pass an order to release the petitioner forthwith from the jail as he has been sent behind bar by the impugned order dated 20.02.2025.
10.4 That, this Hon'ble Court may kindly be pleased to pass an order whereby the police authorities / State may kindly be directed to pay the petitioner a sum of Rs. 1,00,000/- as compensation for mental harassment and illegal detention from 20.02.2025.
10.5 That, any other writs and direction which this Hon'ble Court deems fit and just in the facts and circumstances of the case be granted to the petitioner.
10.6 That the cost of the petition may kindly be awarded in favour of the petitioner."4
3. Brief facts of the case, in a nutshell, are that in the year 2024, the petitioner has been prosecuted for an offence under the provisions of Narcotics Drugs and Psychotropic Substances Act, 1881 (for short, "NDPS Act") and he has granted bail vide order dated 29.05.2024 (Annexure P-2) by the learned Special Judge (NDPS), Janjgir, District Janjgir-Champa (C.G.) in Bail Application No.574 of 2024, till date, no any criminal records have been registered against the petitioner in any Police Station.
4. Thereafter, the petitioner has received a notice dated 26.09.2024 (Annexure P-6) issued by respondent No.2 under the provision of Sections 3(1) of Prevention of Illicit Trafficking Narcotics, Drugs, and Psychotropic Substances Act, 1988 and from the perusal of the notice along with the document, it is clear that in the aforesaid notice, the respondent No.2 has given the reference of earlier case, in which the petitioner has already been granted bail by the the learned Special Court and insofar as the Istagasa is concerned, the said istagasa is vague and not contain any kind of the complaint and simply mentions that the petitioner is indulged in the offence. Though, for the aforesaid istagasa, the respondent has not submitted any written complaint about the indulgence of the petitioner in any kind of crime. Thereafter, the petitioner has filed reply to the aforesaid show cause notice, but the prosecution 5 agency never recorded any kind of the statement of the SHO Malkharoda in presence of the petitioner, even did not seek any kind of the written complaint, if any, from the respondent SHO as also did not give any opportunity of hearing for cross examination the said SHO and took the written argument of the petitioner, in which the petitioner has categorically stated that the aforesaid istagasa is vague and with the malafide intention to implicate the petitioner in this case the said istagasa has been prepared, as such, he made a prayer to quash the istagasa as well as the present case, which has been initiated against the petitioner under the Illicit Trafficking of Narcotics, Drugs, and Psychotropic Substances Act.
5. Thereafter, the respondent authority, i.e., respondent No.2 vide impugned order dated 20.02.2025 without looking into the relevant provisions of law, held that the petitioner after the legal proceeding did not improve his behaviour and the police has received many complaints about his indulgence in the same type of crime. Though, the said finding is not supported by any material and further held that due to the act of the respondent, public at large have some public outrage and in view of the aforesaid finding held that the petitioner is a habitual offender and legal proceeding under the provision of Section 10 of the Prevention of 6 Illicit Trafficking Narcotics, Drugs, and Psychotropic Substances Act is just and proper and accordingly, directed the respondents to detain the petitioner for a period of 03 months in District Jail Sakti.
6. Learned counsel for the petitioner submits that the respondent authorities without finding any material against the petitioner, only on the basis of surmises and conjuncture presumed that he is a habitual offender, though except one case which is already decided and the petitioner has been granted bail and except that no other criminal case or any kind of criminal complaint against the petitioner is pending before any Court of law or before any Police Station, which is totally contrary to the material available on record. He further submits that according to the information on file, it is evident that the police of the Malkharoda District Sakti Police Station filed a vague istagasa against the petitioner without any supporting documentation and only on the basis of suspicion and without receiving any written complaints from the general public, based upon which, the Police has issued a show cause notice against the petitioner, which is likewise unsupported by any documentation, which is blatantly an abuse of the legal process and the order impugned is not at all sustainable in the eye of law. It has been further contended that the respondents have overlooked the fact that at the one instance, the istagasha itself 7 mentioned that the petitioner is doing his agriculture works and leading a routine life and on the other hand, stated that the petitioner is indulge in similar criminal activities, which are contrary versions mentioned in the istagasha itself can be a basis for the rejection of the same, but it has not been considered by the respondents. It has been submitted that the respondents have not considered the reply of the petitioner which was filed and inspite of that, it has passed an non-speaking impugned order, which needs to be quashed in the ends of justice as the conclusion reached by the respondent No.2 cannot be considered credible in any way because it has not been founded on any kind of legal proof or cogent evidence.
7. On the other hand, learned State counsel opposes the submissions on behalf of the learned counsel for the petitioner and supported the impugned order.
8. We have heard learned counsel appearing for the parties and perused the documents annexed with the writ petition.
9. A worst case of violation of human rights took place during arrest made by the Police, the Hon'ble Apex Court in D.K. Basu vs. State of West Bengal, reported in (1997) 1 SCC 416 observed as under:
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"20. In Joginder Kamar vs. State of U.P., [(1994) 4 SCC 260: 1994 SCC (Cri) 1172] considered the dynamics of misuse of police power of arrest and opined:
"No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another..... No arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter."
21. ****** A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first - the criminal or society, the law violator 9 or the law abider........."
10. The Hon'ble Apex Court in the matter of D.K. Basu (supra), after referring to the authorities in Joginder Kumar vs. State of U.P. , reported in (1994) 4 SCC 260. Nilabati Behera (Smt.) Alias Lalita Behera Vs. State of Orissa & Others, reported in (1993) 2 SCC 746 and State of M.P. vs. Shyamsunder Trivedi, reported in (1995) 4 SCC 262; the Hon'ble Apex Court laid down certain guidelines to be followed in cases of arrest and detention till legal provisions are made in that behalf as preventive measures. The said guidelines reads as follows:
"(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.10
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the articular place, unless the attesting witness of the meme of arrest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and 11 particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor every 18 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.
(9) Copies of all the documents including the memo of arrest, referred above, should be sent to the Illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and State headquarters, where 12 information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous noticeboard."
11. Applying the aforesaid principles in the case at hand, it is reflected that earlier, the petitioner has been made accused for the offence punishable under the provisions of NDPS Act, in which he is facing trial and after appreciating the materials on record, the trial Court has granted bail for the charges levelled against him vide order dated 29.05.2024. It is further reflected that a show cause notice dated 26.09.2024 has been issued to the petitioner, to which he has filed his reply, but without considering the same and the same is found to be unsatisfactory, respondent No.2 vide order dated 20.02.2025, directed to detain the petitioner for a period of three months.
12. Considering the overall facts and circumstances of the case, particularly the fact that petitioner has already been granted bail by the trial Court vide order dated 29.05.2024 and for the very same offence under the provisions of NDPS Act, he cannot be detained in the custody for a period of three months as ordered by respondent No.2, we deem it appropriate to exercise our discretionary jurisdiction under Article 226 of the Constitution of India and allow the petition filed by the petitioner. 13
13. Accordingly, the impugned order dated 20.02.2025 (Annexure P-
1) is hereby set-aside. The petitioner be released forthwith, if not required in any other case. However, the petitioner shall not be entitled for any compensation.
14. In the result, the present writ petition is allowed to the extent indicated above.
Sd/- Sd/-
(Arvind Kumar Verma) (Ramesh Sinha)
Judge Chief Justice
Vasant