Jharkhand High Court
Charitra Kumar Dangi @ Chalitar Dangi @ ... vs The State Of Jharkhand on 22 August, 2024
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Criminal) No.557 of 2024
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Charitra Kumar Dangi @ Chalitar Dangi @ Charitra Dangi,
aged about 33 years, son of Suraj Dangi, resident of Village &
P.O. & P.S. Gidhour, District Chatra (Jharkhand).
... ... Petitioner
Versus
1. The State of Jharkhand.
2. The Principal Secretary, Department of Home, Prisons &
Disaster Management, having its office at Project
Building, Dhurwa, P.O. & P.S. Dhurwa, District Ranchi
(Jharkhand)
3. The Director General of Police, Jharkhand.
4. The Superintendent of Police, Chatra.
5. The Deputy Commissioner, Chatra.
6. The Circle Officer, Gidhour, District Chatra.
7. The Officer-In-Charge, Gidhour Police Station, Gidhour,
Chatra.
... ... Respondents
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PRESENT : SRI ANANDA SEN, J.
: SRI GAUTAM KUMAR CHOUDHARY, J.
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For the Petitioner : Mr. Manoj Kumar Choubey,
Advocate.
For the State : Mr. Ashutosh Anand, AAG.
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ORDER
CAV on 19.08.2024 Pronounced on : 22/08/2024 Per Ananda Sen, J.:
By way of this Criminal Writ Petition under Article 226 of the Constitution of India in the nature of certiorari, the petitioner has challenged the impugned detention order (Number-18/PITNDPS-07/2024-2453) dated 19.04.2024 passed by respondent No.2, wherein by exercising powers under Section 3(3) of The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act), the order of detention has been passed 1 against the petitioner.
2. Learned counsel representing the petitioner argues that the detention order has been passed without application of mind. It is his contention that the criminal cases filed under the NDPS Act, wherein the petitioner was tried ended in acquittal, that being so the entire allegation against the petitioner that he is involved in dealing with drugs and narcotic substances, is without any basis. So far as the reference of some Station Diary Entries are concerned, those admittedly did not culminate in any F.I.R. or proceedings against the petitioner, thus, they cannot form a basis of passing the detention order. On these grounds, he challenges the impugned order.
3. Learned AAG Mr. Ashutosh Anand, representing the respondent-State submitted that the order has been passed under the provisions of Section 3 of The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. The order is not cryptic and assigns reason as to why the order of detention has been passed against the petitioner. The Deputy Commissioner, Chatra, forwarded a proposal for detention of the petitioner invoking the provisions of the aforesaid Act to the Secretary, Department of Home, Prison and Disaster Management, Jharkhand, and the grounds of detention has been mentioned therein.
As per the State, the petitioner is a professional and well known brown sugar smuggler and due to the act of this petitioner and others attached with him, the entire image 2 of the State has been tarnished. It is not only this petitioner but also his family members including his brother are involved in a drug racket. There are several criminal cases pending against the petitioner and even after his release on bail, the petitioner gets involved in dealing with narcotic and psychotropic substances. Thus, it was necessary to pass a detention order against the petitioner. The grounds for detention was served upon the petitioner and after consideration of all the facts, a reasoned order has been passed which should not be interfered with.
4. We have heard the learned counsel representing the petitioner and learned AAG representing the State.
5. The impugned order has been passed against the petitioner detaining him by invoking Section 3 of The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as „PITNDPS Act‟). The impugned order has been placed on record as Annexure-1 to this Criminal Writ Petition.
6. The PITNDPS Act, was promulgated to provide for detention to prevent illicit traffic of narcotic drug and psychotropic substances and for the matters connected thereto with a view to prevent any person from engaging any illicit trafficking of narcotic drugs and psychotropic substances. A detention order can be passed in terms of Section 3 of the PITNDPS Act. In terms of Section 3, the power is vested upon the Central Government or the State Government or any Officer of the Central Government not 3 below the rank of Joint Secretary to that Government specially empowered for that purpose or any officer of the State Government not below the rank of Secretary of that Government specially empowered for the purpose to pass an order of detention. As per Section 3, the said officer while passing the order of detention must be satisfied that the person against whom the detention order is being passed is engaged in illicit traffic in narcotic drug and psychotropic substance.
7. It is necessary to quote Section 3(1) of the PITNDPS Act for better appreciation which reads as here under:-
"3. Power to make orders detaining certain persons.-- 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) 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 Cl. (5) of Art. 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."4
8. The word "illicit traffic" is defined under Section 2
(e) of the PITNDPS Act. It is necessary to quote Section 2 (e) of the PITNDPS Act, which is as here under:-
"2. Definitions.-- In this Act, unless the context otherwise requires,--
(a) ............
(b) .............
(c) .............
(d) .............
(e) "illicit traffic" , in relation to narcotic drugs and psychotropic substances, means--
(i) cultivating any coca plant or gathering any portion or 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 in 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 Narcotic 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 ;
(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;"
9. As per Section 3(2), once a detention order is made by the State Government or by an officer empowered by the State Government, the State Government is mandated to forward a report to the Central Government within ten days with respect to the said order. As per Section 3(3) 5 communication to the detained person in respect of the detention order and the grounds of detention shall be made available to the detained person ordinarily within five days and in exceptional cases not later than fifteen days from the date of detention. If under exceptional circumstances, the order along with the reasons therewith is communicated after five days and within fifteen days, the reasons for the delay should also be recorded in writing. Aforesaid is the mandate of Section 3(3) of the Act.
10. Section 6 provides that the ground of detention is severable. It provides that if a person is detained on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds are vague, non- existent, non-relevant, not connected with such person or invalid for any other reason. As per the aforesaid provision, it will be deemed that if one of the ground falls within the aforesaid categories, then it will be deemed that the order of detention is passed in reference to the remaining grounds. It is necessary to quote Section 6 (a) and (b) :-
"6. Grounds of detention severable.-- Where a person has been detained in pursuance of an order of detention under sub-section (1) of Sec. 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each 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, 6
(iv) not connected or not proximately connected with such persons, 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 provided in sub-section (1) of Sec. 3 with reference to the remaining ground or grounds and made the order of detention;
(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 (1) after being satisfied as provided in that sub- section with reference to the remaining ground or grounds."
11. Section 7 of the PITNDPS Act provides that detention order will not be invalid or inoperative merely because the person to be detained is outside the limits of the territorial jurisdiction of the Government or the Officer making the order or the place of detention of such person is outside the said limits. It is necessary to quote Section 7 of the PITNDPS Act, which reads hereunder:-
"7. Detention orders not to be invalid or inoperative on certain grounds.-- No detention order shall be invalid or inoperative merely by reason--
(a) that the person to be detained thereunder is outside the limits of the territorial jurisdiction of the Government or the officer making the order of detention; or
(b) that the place of detention of such person is outside the limits."
12. In the instant case, I find that the order of detention has been passed by the Principal Secretary of the Government of Jharkhand. As per Section 3 of the said Act, the said officer has power to pass the aforesaid detention order. Further none questioned the power of the respondent No.2. Thus, the impugned order is not without jurisdiction.
13. When I go through the order of detention, I find 7 that the reasons for detention has been mentioned therein. It has been mentioned that the petitioner is a professional and renowned dealer in brown sugar. Because of his act, the image of the State of Jharkhand is gaining bad reputation. His brother is also involved in the activities of dealing in narcotics. Because of this act, police of several States have conducted raids in his house. There are several cases and Station Diaries lodged against this petitioner and he has been sent to jail on several occasions but he has not amended his behaviour and nature. Even after obtaining bail, he is involved in dealing with drugs and narcotic substance. It has further been mentioned that against the petitioner, following F.I.R.s and Station Diary Entries have been lodged :-
FIRs :-
i. "Gidhour P.S. Case No.57 of 2016 under Sections 147/ 148/ 149/ 323/ 342/ 353/ 332/ 427/ 504/ 152 IPC.
ii. Rajpur P.S. Case No.5 of 2018, under Sections 8(B)/15/18/18(c)/22/32/46 of the NDPS Act and Section 33 of Forest Act, 1927 iii. Rajpur P.S. Case No.3 of 2018 under Sections 8/(B)/15/18/18(C)/22/34/46 of the NDPS Act iv. Khunti P.S. Case No.107 of 2017, under Sections 414/34 IPC and Section 17(ii) of the NDPS Act Station Diary Entries :-
i. Gidhour Station Diary No.8 of 2023
ii. Gidhour Station Diary No.17 of 2023,
iii. Gidhour Station Diary No.23 of 2023,
iv. Gidhour Station Diary No.14 of 2023
v. Gidhour Station Diary No.21 of 2024."
Thus, it has been concluded by the Authority that the petitioner does not have any regard for law and as he is indulging in illegal activities in dealing with narcotic drugs 8 and psychotropic substances which has a negative impact on humanity and on the nation and there is a law and order problem, it is necessary to detain him.
14. From the aforesaid order of detention, it is clear that the detention is only on one ground i.e. the petitioner is engaged in dealing with narcotic, drugs and psychotropic substances and is habitual in such dealings. The basis of coming to the said conclusion is the criminal cases mentioned above and the Station Diary Entries. Thus, the satisfaction of the authority passing the detention order that the petitioner is a habitual dealer in drugs is based on the criminal cases against him.
15. Since the ground of detention is only one, there cannot be any application of Section 6 of the PITNDPS Act.
16. A preventive detention amounts to loss of liberty without there being any trial. This detention is preventive and not punitive. There should be sufficient materials before the detaining authority to conclude that a person needs to be detained. The satisfaction as envisaged in Section 3 is paramount and there should be a strong basis of such satisfaction. The satisfaction cannot be merely on assumption and presumptions. The same should be based on some sufficient materials. The satisfaction should be raised on materials which are of rationally probative value and the entirety of the material placed before the Authority should be considered.
17. The Hon‟ble Supreme Court in the case of 9 Ameena Begum Vs. State of Telangana & Ors. reported in (2023) 9 SCC 587, has culled out the principles and the test of legality which the Courts should embark upon while dealing with prevention detention order. It is necessary to quote para-27 & 28 which are as hereunder:-
"27. Be that as it may, culling out the principles of law flowing from all the relevant decisions in the field, our understanding of the law for deciding the legality of an order of preventive detention is that even without appropriate pleadings to assail such an order, if circumstances appear therefrom raising a doubt of the detaining authority misconceiving his own powers, the Court ought not to shut its eyes; even not venturing to make any attempt to investigate the sufficiency of the materials, an enquiry can be made by the Court into the authority's notions of his power. Without being remotely concerned about the sufficiency or otherwise of the materials on which detention has been ordered, the Court would be justified to draw a conclusion, on proof from the order itself, that the detaining authority failed to realise the extent of his own powers. This is quite apart from questioning the action for want of sufficient materials that were before the detaining authority. The authority for the detention is the order of detention itself, which the detenu or the Court can read. Such a reading of the order would disclose the manner in which the activity of the detenu was viewed by the detaining authority to be prejudicial to maintenance of public order and what exactly he intended should not be permitted to happen. Any order of a detaining authority evincing that the same runs beyond his powers, as are actually conferred, would not amount to a valid order made under the governing preventive detention law and be vulnerable on a challenge being laid. "
"28. In the circumstances of a given case, a constitutional court when called upon to test the legality of orders of preventive detention would be entitled to examine whether:
28.1. The order is based on the requisite satisfaction, albeit subjective, of the detaining authority, for, the absence of such satisfaction as to the existence of a matter of fact or law, upon which validity of the exercise of the power is predicated, would be the sine qua non for the exercise of the power not being satisfied;
28.2. In reaching such requisite satisfaction, the detaining authority has applied its mind to all relevant circumstances and the same is not based on material extraneous to the scope and purpose of the statute;10
28.3. Power has been exercised for achieving the purpose for which it has been conferred, or exercised for an improper purpose, not authorised by the statute, and is therefore ultra vires;
28.4. The detaining authority has acted independently or under the dictation of another body; 28.5. The detaining authority, by reason of self-
created rules of policy or in any other manner not authorised by the governing statute, has disabled itself from applying its mind to the facts of each individual case;
28.6. The satisfaction of the detaining authority rests on materials which are of rationally probative value, and the detaining authority has given due regard to the matters as per the statutory mandate;
28.7. The satisfaction has been arrived at bearing in mind existence of a live and proximate link between the past conduct of a person and the imperative need to detain him or is based on material which is stale; 28.8. The ground(s) for reaching the requisite satisfaction is/are such which an individual, with some degree of rationality and prudence, would consider as connected with the fact and relevant to the subject- matter of the inquiry in respect whereof the satisfaction is to be reached;
28.9. The grounds on which the order of preventive detention rests are not vague but are precise, pertinent and relevant which, with sufficient clarity, inform the detenu the satisfaction for the detention, giving him the opportunity to make a suitable representation; and 28.10. The timelines, as provided under the law, have been strictly adhered to."
18. Considering the aforesaid provisions of law, when I go through the impugned order of detention, as held earlier, I find that there is only one ground for detention which is mentioned above. As mentioned, the ground is backed up by a fact which is the criminal case and the Station Diaries lodged against him.
19. So far as the Station Diary Entry is concerned, from the Counter Affidavit there is nothing to suggest that those Station Diary Entries have culminated in any criminal proceedings. Mere Station Diary Entries making some 11 allegations and casting aspersions against any person without the same being converted into any criminal proceedings under the provisions of the Penal Law, is not a sufficient ground to reach at a satisfaction that the person needs to be detained. Further so far as the criminal cases are concerned, in the impugned order, references have been made, but surprisingly the said information about the criminal case is not in its entirety. There are references of four criminal cases against this petitioner which have been mentioned in para-14 above. Out of those four cases, in three criminal case namely Rajpur P.S. Case No.5 of 2018, Rajpur P.S. Case No.3 of 2018, Khunti P.S. Case No.107 of 2017, this petitioner has been acquitted. The judgments of acquittal has been brought on record and has been annexed along with the writ petition. The fact of this acquittal has not been denied by learned AAG on behalf of the State.
20. So far as Gidhour P.S. Case No.57 of 2016 is concerned, I find that the same is not under the NDPS Act. The aforesaid P.S. Case is under the provisions of the Indian Penal Code. In the aforesaid case, this petitioner along with others were found guilty of offence under Sections 147, 148, 332, 342, 427 and 504 IPC and was sentenced to undergo rigorous imprisonment by the Trial Court. The Appellate Court being the Sessions Judge, Chatra in Criminal Appeal No.16 of 2023 modified the judgment and convicted the petitioner under Section 323, 353 and 149 of the IPC and released him after due admonition as per Section 3 of Probation of 12 Offenders Act.
21. Thus, the impugned order of detention was only based on half of the information supplied to the Authority about the pending cases. The material which was before the Detaining Authority was incomplete. Based on any incomplete information, no detention order, taking away liberty of a person, can be passed.
Satisfaction based on irrelevant documents or incomplete document or satisfaction only on the basis of filing of charge sheet ignoring acquittal of the detenu of the said charges is not a proper satisfaction in the eye of law to take away the liberty of a person by passing a detention order.
22. Further, once the State fails to achieve conviction under the Penal Laws after a proper and full-fledged trial, by taking a circuitous method, relying on the same cases in which the petitioner stands acquitted, cannot pass an order of detention against the same person who has already been acquitted. When the petitioner has been acquitted in all the cases, it cannot be said that he is a habitual offender. It was the duty of the State to ensure conviction of the petitioner in those trials, if at all he was involved in the offences but when the State failed to obtain conviction of the petitioner in the criminal cases only thereafter has come up with the impugned detention order.
23. It is true that the detention order has to be based on some satisfaction. It is also true that the satisfaction is subjective and this Court exercising jurisdiction under Article 13 226 of the Constitution of India cannot sit as an Appellate Court evaluating the satisfaction of the Detaining Authority nor can substitute the same, but this Court can very well look into the sufficiency of the material which was placed before the Authority to arrive at such satisfaction. On the basis of some half-baked, incomplete information, if a satisfaction is arrived at, the same cannot be said to be a logical satisfaction based on sufficient complete materials. There has to be complete material to arrive at a satisfaction before issuing the order of detention. As per para-28 of the judgment passed in the case of Ameena Begum (supra), the satisfaction must rest on materials which are of rationally probative value and the authority must give due regard to the matters as per the statutory mandate. When the material which is before the Authority is incomplete, it cannot be said that the satisfaction is based on complete materials. Before the Authority, the materials must be complete.
24. The consideration that the petitioner is a habitual offender is also based on the incomplete information i.e. Station Diary Entries which did not culminate in any criminal proceeding. The criminal case also ended in acquittal, thus, the aforesaid information cannot be the basis to conclude that the petitioner is a habitual offender.
25. Thus, from what has been held above, I am of the opinion that the satisfaction as recorded by the Detaining Authority in this case cannot be said to be a proper satisfaction which is based on complete information. The 14 impugned order does not even whisper about acquittal of this petitioner in the criminal case in which the petitioner was an accused under the provisions of NDPS Act, which forms the sole basis of passing the impugned order.
26. Thus, I hold that the order of detention has been passed based on materials which are incomplete and the basis of satisfaction being incomplete, vitiates the entire process. Further I hold that since there is only one ground of detention, there is no applicability of Section 6 of The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 and the entire order gets vitiated, thus, cannot be sustained.
27. In view of the above findings arrived at, the impugned detention order (Number-18/PITNDPS-07/2024- 2453) dated 19.04.2024, passed by respondent No.2, is hereby quashed and set aside.
28. Accordingly, the instant criminal Writ Petition is allowed.
29. If the petitioner in the meantime is kept under detention, he be released forthwith.
30. Pending I.A., if any, stand disposed of.
(ANANDA SEN, J.) Sri Gautam Kumar Choudhary, J : I agree.
(GAUTAM KUMAR CHOUDHARY, J.) HIGH COURT OF JHARKHAND, RANCHI Dated:- 22/08/2024 AFR / Prashant 15