Gauhati High Court
W.P.(Crl.)/14/2025 on 11 September, 2025
Bench: Kalyan Rai Surana, Manish Choudhury
Page No. 1/41
GAHC010090752025
2025:GAU-AS:12389-DB
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
W.P.(Crl.) no. 14/2025
Md. Selim Faraji, S/o Abdul Kuddus Faraji, R/o
Kadamoni Pathar, P.O. - Juria, Distnagaon,
Assam, Pin-782124
.......................Petitioner
-Vs-
1. The Union of India, represented by the
Secretary to Government of India, Department
Of Revenue, Ministry Of Finance, New Delhi,
Pin-110001
2. The Deputy Secretary [PITNDPS], Government
of India, Ministry of Finance, Department of
Revenue, 2nd Floor, Room no. 202, Jeevan Tara
Building Parliament Street, New Delhi, Pin -
110001
3. The State of Assam, represented by the
Commissioner and Secretary to the Government
of Assam Home & Political Department, Dispur
Guwahati-6
Page No. 2/41
4. The Secretary to the Government of Assam
Home & Political Department, Dispur, Guwahati
- 781006, Assam
5. The Additional Chief Secretary, Home & Political
Department Government of Assam, Assam
Secretariat, CM Block, 2nd Floor, Dispur,
Guwahati-6
6. The Detaining Authority [under PITNDPS ACT]
and the Secretary to the Government of Assam,
Home & Political Department Government of
Assam, Assam Secretariat, CM Block, 2nd Floor
Dispur, Guwahati-06
7. The Advisory Board [under PITNDPS ACT]
represented by the Secretary, Home & Political
Department, Government of Assam, Assam
Secretariat, CM Block 2nd Floor, Dispur,
Guwahati, Assam - 781006
8. The District Commissioner, Nagaon, Dist -
Nagaon, Assam, Pin - 782001
9. The Director General of Police Assam, Ulubari
Guwahati - 07
10. The Additional Director General of Police [CID],
Assam, Ulubari, Guwahati - 07
11. The Superintendent of Police, Nagaon, Assam,
Pin - 782001
Page No. 3/41
12. The Superintendent, Central Jail, Nagaon
Haibargaon, Fauzdaripatty, Nagaon-78200
..............Respondents
Advocates :
Petitioner : Mr. P.R. Sarma, Advocate
Respondent nos. 1 & 2 : Mr. K.K. Parasar, Central Government Counsel
Respondent nos. 3 to 12 : Mr. D. Nath, Senior Government Advocate, Assam
Date of Hearing : 24.07.2025
Date Judgment & Order : 11.09.2025
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER
[Manish Choudhury, J]
The present writ petition under Article 226 of the Constitution of India is
preferred by the father on behalf of the detenu, Md. Selim Faraji [hereinafter
also referred as 'the detenu', at places, for easy reference], who has been
detained in the Central Jail, Nagaon pursuant to a Detention Order dated
22.01.2025 passed by the Secretary to the Government of Assam, Home &
Political Department as the Detaining Authority in exercise of the powers
conferred by sub-section [1] of Section 3 of the Prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substances Act, 1988 ['the PIT-NDPS Act', for
short]. By the impugned Detention Order dated 22.01.2025, the detenu who
has been named therein as Selim Uddin @ Faraji, had been detained until
further order.
Page No. 4/41
2. Subsequent to issuance of the Detention Order dated 22.01.2025, the detenu
was served with the Detention Order dated 22.01.2025 along with the Grounds
of Detention, which were prepared vide no. eCF-580610/128 dated 22.01.2025,
on 30.01.2025.
3. On being served with the Detention Order and the Grounds of Detention, both
dated 22.01.2025, along with the other supporting materials, on 30.01.2025,
the detenu preferred a Representation each, on 13.02.2025, before [i] the
State Government of Assam in the Home & Political Department; [ii] the
Detaining Authority under the PIT-NDPS Act & the Secretary to the
Government of Assam, Home & Political Department; [iii] the Advisory Board,
PIT-NDPS Act; and [iv] the Government of India in the Ministry of Finance,
Department of Revenue.
4. The matter was referred to the Advisory Board vide Reference no. eCF-
580610/224 dated 13.02.2025. During one of the sittings of the Advisory Board
on 01.03.2025, the detenu was produced before the Advisory Board by the
Detaining Authority from the Central Jail, Nagaon and the Advisory Board heard
the detenu in person. The Advisory Board recorded its opinion in an Order no.
PITNDPS/1/2025 on 11.03.2025.
5. On the basis of the opinion of the Advisory Board forwarded on 11.03.2025,
the State Government, in exercise of the powers conferred by Section 9[f] of
the PIT-NDPS Act, had confirmed the Detention Order dated 22.01.2025 vide
its Order bearing no. eCF-580610/263 dated 29.03.2025 for a period of one
year from the date of detention.
7. Vide a Memorandum bearing no. F.No. U-11013/19/2025-PITNDPS dated
03.04.2025, Department of Revenue, PITNDPS Division, Ministry of Finance,
Government of India which was issued under the hand of the Deputy Secretary
to the Government of India, the Representation preferred by the detenu before
Page No. 5/41
the Central Government seeking revocation of the Detention Order dated
22.01.2025 came to be rejected.
8. We have heard Mr. P.R. Sarma, learned counsel for the petitioner; Mr. K.K.
Parashar, learned Central Government Counsel for the respondent nos. 1 & 2;
and Mr. D. Nath, learned Senior Government Advocate, Assam for the
respondent nos. 3 to 12.
9. By Orders passed on 23.06.2025, 25.06.2025 & 26.06.2025, the learned
State Counsel was requested to obtain and place the relevant records of the
detention proceeding. The learned Additional Senior Government Advocate,
Assam has placed the relevant records of the detention proceeding during
the course of the hearing.
10. It has been submitted on behalf of the detenu that the Constitutional principle
embedded in Clause [5] of Article 22 of the Constitution of India and the
prescription laid down in sub-section [3] of Section 3 of the PIT-NDPS Act have
been violated in the instant case as the detenu was not communicated with the
Order of Detention and the Grounds of Detention in a language understood by
him. He has submitted that the language used was English in the Order of
Detention, the Grounds of Detention and the other supporting documents; and
as the detenu cannot read and write in or does not understand the English
language, save and except giving signature in English; it was incumbent on the
part of the Detaining Authority to serve the detenu such copies in Assamese
language only, with which he is conversant with. The detenu was only read
over and explained the contents of the Detention Order in Assamese language.
Due to non-supply of the translated copies of the afore-stated documents
relied upon by the Detaining Authority, the detenu was prevented from
preferring an effective representation. It has been further contended that the
documents supplied were also not legible. It has been pointed out that in all
the five cases, which have been referred to in the Detention Order, the detenu
was released on bail pursuant to orders passed by courts of competent
Page No. 6/41
jurisdiction and there was no material before the Detaining Authority to draw
any inference on 22.01.2025 that he had subsequently violated any of the
conditions imposed at the time of granting bail. There was no live and
proximate link. No proper reason was recorded by the Detaining Authority in
the Detention Order for reaching satisfaction and the Detention Order was
passed mechanically. The Detaining Authority who had the power to decide the
Representation, did not consider and dispose of the Representation submitted
by the detenu. The State Government ought to have decided the
Representation expeditiously and thereafter, should have forwarded its decision
to the Advisory Board immediately without waiting for the opinion of the
Advisory Board. In fact, the Representation was not decided at all by the State
Government. The representation was also not forwarded to the Advisory Board.
It has been contended on behalf of the detenu that for the aforesaid reasons,
the Detention Order and the consequential Order of Confirmation are not
sustainable in law and therefore, keeping the detenu under preventive
detention for any longer period is unsustainable in law. The decision in Pebam
Ningol Mikoi Devi vs. State of Manipur and others, [2010] 9 SCC 618 ; Mrs.
Nafisa Khalifa Ghanem vs. Union of India and others, [1982] 1 SCC 422;
and Shaik Hanif vs. State of West Bengal, [1974] 1 SCC 637; have been
referred to.
11. Mr. Parashar, learned Central Government Counsel appearing for the
respondent nos. 1 & 2 has submitted that the Representation preferred by the
detenu before the Central Government seeking revocation of the Detention
Order dated 22.01.2025 was considered by the Government of India in the
Ministry of Finance, PIT-NDPS Division and after consideration, the
Representation was rejected vide the Memorandum dated 03.04.2025.
12. Mr. Nath, learned Senior Government Advocate, Assam appearing for the State
respondents has supported the Order of Detention dated 22.01.2025 and all
other subsequent actions taken for preventive detention. He has submitted that
the Detaining Authority on reaching a satisfaction, on the basis of the materials
Page No. 7/41
placed before it, had preventively detained the detenu with a view to prevent
him from engaging in illicit traffic in future. He has submitted that all
procedural safeguards were adhered to for detaining the detenu and have also
been followed during the detention period. He has referred to the materials,
available on record, regarding the five pending criminal proceedings, referred
to in the Detention Order by the Detaining Authority to contend that the
detenu is a habitual offender. In response to the contention advanced on
behalf of the detenu regarding violation of Article 22[5] of the Constitution and
Section 3[3] of the PIT-NDPS Act, it is submitted that the detenu had duly
received a copy of the Detention Order and the Grounds of Detention along
with its enclosures and he had also acknowledged their receipt. The Jailor,
Central Jail, Nagaon had appended a note on the Detention Order to the effect
that the contents of the Detention Order were read over and explained to the
detenu under videography in Assamese language on 30.01.2025, in presence
of witnesses. It is, thus, contended that in such situation, it is not open for the
detenu to contend that there was violation of the provisions contained in Article
22[5] of the Constitution and Section 3[3] of the PIT-NDPS Act. It is further
submitted that since all the procedures were duly adhered to, there is no scope
for interference with the Detention Order. The decision in G. Reddeiah vs.
Government of Andhra Pradesh and another, [2012] 2 SCC 389, has been
referred to.
13. We have considered the submissions made by the learned counsel for the
parties and have also gone through the records of the proceeding leading to
the passing of the Detention Order dated 22.01.2025 and steps taken
subsequent thereto, apart from the provisions contained in the PIT-NDPS Act.
14. The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances
Act, 1988 ['the PIT-NDPS Act, for short] is an Act which provides for detention
in certain cases for the purpose of preventing illicit traffic in narcotic drugs and
psychotropic substances and for matters connected therewith. The PIT-NDPS
Act has been brought for the reason that illicit traffic in narcotic drugs and
Page No. 8/41
psychotropic substances poses a serious threat to the health and welfare of the
people and the activities of persons engaged in such illicit traffic have a
deleterious effect on the populace.
15. The definition of 'illicit traffic' has been provided in Section 2 [e] of the PIT-
NDPS Act. As per Section 2 [e], 'illicit traffic' inter-alia means 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 transshipment, of narcotic
drugs or psychotropic substances.
16. The power to make orders detaining certain persons under the PIT-NDPS Act
traceable to Section 3. Section 3 reads as under :-
3. Power to make orders detaining certain persons :-
[1] 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
Page No. 9/41
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.
17. Sub-section [1] of Section 3 has empowered the Central Government or the
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 that section by the Government, or any Officer of a State
Government, not below the rank of a Secretary to that Government, specially
empowered for the purposes of that section by that Government, to make an
order of detention, if satisfied, with respect to any person [including a
foreigner] with a view to preventing him from engaging in illicit traffic in
narcotic drugs and psychotropic substances. Sub-section [2] of Section 3 has
provided that 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. Sub-section [3] of Section 3 has cast an obligation on the Detaining
Authority making the detention order to communicate to the person detained in
pursuance of the detention order the grounds on which the detention order has
been made. The Detaining Authority is required to communicate the grounds
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.
Page No. 10/41
18. It has been provided in Section 9[b] of the PIT-NDPS Act that in every case
where a detention order has been made under Section 3[1] of the PIT-NDPS
Act, the appropriate Government shall within five weeks from the date of
detention, make a reference of the detention order to the Advisory Board.
Thereafter, as per Section 9[c], the Advisory Board shall, after considering the
reference and the materials placed before it and after hearing the detenu in
person, if he expresses desire to be heard in person, record its opinion as to
whether or not there is sufficient cause for the detention of the person
concerned and such report is to be submitted by the Advisory Board within
eleven weeks from the date of detention of the detenu. It has been provided in
Section 9[f] to the effect that 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.
19. As per Article 22[4] of the Constitution of India, no law providing for preventive
detention shall inter-alia authorize the detention of a person for a longer period
than three months unless an Advisory Board has reported, before the
expiration of the period of three months, that there is, in its opinion, sufficient
cause for such detention. Article 22[5] has laid down that when any person is
detained in pursuance of an order made under any law 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.
20. The provisions for revocation of detention orders made under Section 3[1] are
provided in Section 12[1]. It has been laid down that without prejudice to the
Page No. 11/41
provisions of Section 21 of the General Clauses Act, 1897, a detention order
may, at any time, be revoked or modified [a] notwithstanding that the order
has been made by an Officer of a State Government, by that State Government
or by the Central Government; and [b] notwithstanding that the order has
been made by an Officer of the Central Government or by a State Government,
by the Central Government.
21. Personal liberty of a person has been protected under Article 21 of the
Constitution by providing the guarantee that no person shall be deprived of his
life or personal liberty except according to procedure established by law.
Personal liberty is precious and high in the scale of constitutional values. It has
been consistently held that the obligation of the Detaining Authority is not
confined just to meet the specific grounds of challenge but is one of showing
that the impugned detention meticulously accords with the procedure
established by law. As personal liberty is the highest form of one's freedom,
the laws of preventive detention are strictly construed and a meticulous
compliance with the procedural safeguards, however technical, is strictly
insisted upon by the Courts.
22. In order to consider and appreciate the submissions of the parties from the
standpoint of legality, validity and sustainability of the Detention Order passed
on 22.01.2025, it appears appropriate to refer to the Detention Order itself.
For ready reference, the Detention Order dated 22.01.2025 is extracted in its
entirety hereinunder :-
GOVERNMENT OF ASSAM
POLITICAL [A] DEPARTMENT : DISPUR
2nd Floor, I Block, Assam Secretariat, Dispur, Guwahati-6
Tele Fax No. 0361-2261421:: eMail : [email protected]
No. eCF-580610/132 Dated Dispur, the 22nd January, 2025
Page No. 12/41
ORDER
Whereas, a Police report and connected records have been laid before the undersigned by the Inspector General of Police [CR], Nagaon, Assam, vide his letter No. CR/41-NGN/2024/3409, dated 07.10.2024 and Superintendent of Police, Nagaon vide his Letter Memo No. IV/NGN/PITNDPS/2024/3634, dated 24.09.2024 and Letter No. IV/PITNDPS/2024/4439, dated 26.11.2024.
Whereas, it has been proposed to detain Selim Uddin @ Faraji, S/o- Abdul Kuddus Faraji, Vill - Kadamoni Pathar, PS - Juria, Dist - Nagaon, Assam with a view to preventing him from engaging in illegal and harmful activities of illicit business of Narcotic drugs and from the repeated violations of the provisions under the NDPS Act, 1985; and Whereas, on perusal of Police report and the connected records, it appears that the said accused has persistently involved himself with the crime of illegal business of Narcotic drugs since many years and was arrested in the following cases :
[1] Juria PS Case No. 286/23 U/S - 21[b]/29 NDPS Act, [2] Juria PS Case No. 325/21 U/S - 25[1] Arms Act, R/W Section 21[c]/29 NDPS Act [3] Juria PS Case No. 631/16 U/S - 25[1] Arms Act [4] Juria PS Case No. 251/20 U/S - 395 IPC and Page No. 13/41 [5] Juria PS Case No. 320/2023 U/S - 120B/328 IPC, R/W Section 21[b]/29 NDPS Act.
Whereas, it also appears from the Police report that during investigation, the seized particulars suspected to be psychotropic substances in respect of the Police cases mentioned at [1], [2] & [5] above were sent to FSL for examination and FSL report gave positive tests for Heroin.
Whereas, as intimated by the Superintendent of Police, Nagaon vide his Letter Memo No. IV/NGN/PITNDPS/2024/3634, dated 24.09.2024 that the accused Selim Uddin @ Faraji has been found to be a repeated offender under various Sections of NDPS Act 1985 and his detention under PITNDPS Act is imperative to keep him out of business of illicit trafficking in Narcotic Drugs and Psychotropic Substances and break the network of drugs supply in the district of Nagaon.
Whereas, I, XXX, IAS, Secretary to the Government of Assam, Home & Political Departments and Detaining Authority under PITNDPS Act, on perusal of the Police records and recommendation of the Inspector General of Police [CR], Nagaon and superintendent of Police, Nagaon, Assam satisfied that Selim Uddin @ Faraji, S/o - Abdul Kuddus Faraji, Vill - Kadamoni Pathar, PS - Juria, Dist - Nagaon, Assam has been acting in a manner prejudicial to the provisions under the NDPS Act, 1985 by continuously indulging in illicit trade in narcotic drugs even after his arrest several times and therefore, in exercise of powers conferred under Section 3[1] of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Page No. 14/41 Substances Act, 1988 [PITNDPS Act, 1988], do hereby issue this order directing that the above accused person, Selim Uddin @ Faraji, S/o - Abdul Kuddus Faraji, Vill - Kadamoni Pathar, PS
- Juria, Dist - Nagaon, Assam be detained under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 [PITNDPS Act, 1988] until further order.
Given under my hand and seal of the office on this 22nd January, 2025.
Secretary to the Govt. of Assam Home & Political Departments
23. On perusal of the records of the detention proceeding, as placed before this Court, few aspects which have caught the attention of the Court require mention.
24. On perusal of the relevant records, it is noticed that the Superintendent of Police, Nagaon vide an Office Letter dated 24.09.2024 forwarded a proposal, through the Inspector General of Police, Central Range at Nagaon, for issuing a Detention Order in respect of the detenu under the PIT-NDPS Act with utmost urgency. The Superintendent of Police, Nagaon reported that the detenu was found to be a repeated offender for various offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 ['the NDPS Act', for short] and the Arms Act, 1959 ['the Arms Act', for short] and his detention under the PIT- NDPS Act was imperative to keep him out of the business of illicit trafficking in narcotic drugs and psychotropic substances and to break the network of drugs supply in the district of Nagaon. By the proposal, request was made to issue the necessary detention order against the detenu, who was then on bail in connection with Juria Police Station Case no. 320/2023 under Sections 120B/328, Indian Penal Code [IPC] r/w Section 21[b]/29, NDPS Act. The Page No. 15/41 proposal for detention and the requisite documents in that connection were forwarded with the Office Letter dated 24.09.2024.
25. In the 'proposal' appended to the Office Letter dated 24.09.2024, details of the cases already registered against the detenu, were mentioned :-
[i] Juria Police Station Case no. 631/2016 under Section 25[i][a], Arms Act; [ii] Juria Police Station Case no. 251/2020 under Section 395, IPC; [iii] Juria Police Station Case no. 325/2021 under Section 25[1][A] Arms Act, r/w Section 21[c]/29, NDPS Act;
[iv] Juria Police Station Case no. 286/2023 under Sections 21[b]/29, NDPS Act; and [v] Juria Police Station Case no. 320/2023 under Sections 120B/328, IPC r/w Sections 21[b]/29 NDPS Act; were forwarded.
25.1. As per the details provided, Juria Police Station Case no. 631/2016 was registered on the allegations that reliable information was received on 24.12.2016 to the effect that the detenu who was involved in a nos. of dacoity cases, had reached his residence from Kerala the previous night. On the basis of the information, a Police team proceeded to the detenu's house. A search was made of the detenu's house and recovery of one handmade pistol was allegedly made from the detenu's possession and the same was accordingly seized in presence of witnesses. The FIR was lodged and registered on 24.12.2016.
25.2. One Ajimul Haque was the informant in Juria Police Station Case no.
251/2020. In the FIR lodged on 24.06.2020, it was inter-alia alleged that at around 04-30 a.m. on 24.06.2020, the informant was going to Juria to purchase fish by a TATA Mobile vehicle. When the informant reached Juria Chariali, four accused persons [i] Sarukh Islam; [ii] the detenu; [iii] Husain; and [iv] Babu, all from areas within Juria Police Station, stopped him and thereafter robbed him of Rs. 2,55,000/- by giving threats and showing Page No. 16/41 weapons to him and his driver, Shamsuddin Khan. The informant stated that by giving a fight, he and his driver were able to capture one of the accused persons and the captured accused person was, thereafter, handed over to Morajhar Out Post.
25.3. Juria Police Station Case no. 325/2021 was registered after receipt of information about selling of illegal drugs at Kadomoni Pathar under Juria Police Station on 15.07.2021. Information was received that one Atiqur Bahar and the detenu were in possession of firearms along with illegal drugs. A team led by a Deputy Superintendent of Police proceeded to the location to conduct search operation in reference to General Diary Entry no. 298 dated 15.07.2021. In search operation conducted in presence of independent witnesses, recovery and seizure were made of three soap boxes containing 41.01 grams of suspected heroin. The accused person named Atiqur Bahar was apprehended. A raid was also conducted in the house of the detenu at Kadomoni Town and during the raid, one countrymade pistol along with four rounds of 7.65 mm live ammunitions were recovered and seized from the house of the detenu. Based on the interrogation of the detenu, another accused person named Anowar Hussain was arrested. The FIR was lodged on 15.07.2021.
25.4. One Sub-Inspector of Police from Juria Police Station was the informant in the FIR registered on 07.11.2023 as Juria Police Station Case no. 286/2023 under Sections 21[b]/29, NDPS Act. In the FIR, it was inter alia stated that on receipt of a secret information at about 08-00 p.m. on 06.11.2023 from a confidential source that drugs could be delivered at the house of one Saidul Islam @ Kalia at Koloni Jalah and Saidul Islam and Surhab Ali were selling drugs for a long period, General Diary Entry no. 127 dated 06.12.2023 was registered. A team of Police personnel proceeded to the place of occurrence to conduct a search at the house of Saidul Islam. A search operation was accordingly conducted at the house of Saidul Islam. During the search, Saidul Islam could be apprehended. The FIR further stated that Md. Selim Uddin @ Faraji [the detenu] and Surhab Ali were able to escape from the place under cover of Page No. 17/41 darkness. Recovery of 26 nos. of plastic vials filled with suspected heroin, weighing 44.88 grams [with vials] and 13.52 grams [without vials], were seized from the accused person, Saidul Islam.
25.5. The informant in Juria Police Station Case no. 320/2023 registered for the offences under Sections 120B/328, IPC r/w Sections 21[b]/29, NDPS Act was one Sub-Inspector of Police from Juria Police Station. In the FIR lodged on 21.12.2023, it was inter alia stated that secret information was received from sources that delivery of illegal drugs was going to take place at Kadomoni Pathar under Juria Police Station by one Selim Uddin @ Faraji [the detenu] at the house of one Abdul Jalil. On receipt of the said information, a team of Police personnel proceeded to the place and a raid was planned. During the raid, the team apprehended three nos. of accused persons [i] Selim Faraji @ Selim Uddin [the detenu]; [ii] Furkan Ali; and [iii] Rokman Ali; and recovery of three nos. of plastic soap cases filled with suspected heroin was made. On weighment, the suspected contraband was found weighing 162.58 grams [with boxes] and 84.43 grams [without boxes].
26. On 26.11.2024, the Superintendent of Police, Nagaon vide an Office Letter forwarded additional information in connection with his earlier proposal for issuing Detention Order in respect of the proposed detenu. Along with the Office Letter dated 26.11.2024, the Superintendent of Police, Nagaon forwarded purportedly legible copies of the Charge-Sheets submitted in connection with Juria Police Station Case no. 325/2021, Juria Police Station Case no. 286/2023 and Juria Police Station Case no. 320/2023. It was informed that the proposed detenu was granted bail in the afore-stated three cases. It was further informed that the proposed detenu was on bail since 22.02.2024. It was further stated that the proposed detenu was in custody from 15.07.2021 to 14.09.2021 in connection with Juria Police Station Case no. 325/2021. The proposed detenu was in custody during the period from 21.12.2023 to 19.02.2024 in connection with Juria Police Station Case no. 320/2023. The proposed detenu was granted bail on 15.09.2021 in connection with Juria Page No. 18/41 Police Station Case no. 325/2021 and he was released on bail in connection with Juria Police Station Case no. 320/2023 on 20.02.2024. In the additional information so provided, it was informed that the proposed detenu was released on bail in all the afore-mentioned cases. It was mentioned that the accused was still suspected to be indulging in illegal activities.
27. In the Grounds of Detention prepared along with the Detention Order on 22.01.2025, the details of the afore-mentioned five cases were mentioned. As per the Grounds of Detention bearing no. eCF-580610/128 dated 22.01.2025, the documents furnished to the detenu in connection with the afore-stated five cases were as under :-
[i] Juria Police Station Case no. 631/2016 under Section 25[i][a], Arms Act :
Photocopies of [i] FIR; and [ii] Search and Seizure List; as Annexure-C and Annexure-C1.
[ii] Juria Police Station Case no. 251/2020 under Section 395, IPC :
Photocopy of [i] FIR as Annexure-D. [iii] Juria Police Station Case no. 325/2021 under Section 25[1][A] Arms Act, r/w Section 21[c]/29, NDPS Act : Photocopies of [i] FIR; [ii] Search and Seizure List; [iii] FSL Report; [iv] Inventory of seized contraband; [v] Godown Menu; and [vi] Counterfoil of Charge-Sheet as Annexure-B, Annexure-B1, Annexure-B2, Annexure-B3, Annexure-B4 and Annexure- B5.
[iv] Juria Police Station Case no. 286/2023 under Sections 21[b]/29, NDPS Act : Photocopies of [i] FIR; [ii] FSL Report; [iii] Inventory of seized NDPS Substances; [iv] Search and Seizure List; and [v] Counterfoil of the Charge-Sheet as Annexure-A, Annexure-A1, Annexure-A2, Annexure-A3 and Annexure-4.
[v] Juria Police Station Case no. 320/2023 under Sections 120B/328, IPC r/w Sections 21[b]/29 NDPS Act : Photocopies of [i] FIR; [ii] FSL Report; [iii] Search and Seizure List; and [iv] Counterfoil of Charge-Sheet as Annexure-E, Annexure-E1, Annexure-E2 and Annexure-E3.Page No. 19/41
28. The Detention Order for the detenu was, thus, based on his alleged offending activities of illicit trafficking in the afore-stated five cases. From the materials on record, the following details have emerged :-
Juria Police Station Case no. 631/2016 Date of FIR Date of Charge-Sheet 24.12.2016 31.01.2018 Juria Police Station Case no. 251/2020 Date of FIR Date of Charge-Sheet 24.06.2020 29.09.2020 Juria Police Station Case no. 325/2021 Date of FIR Date of Charge-Sheet 15.07.2021 10.08.2021 Juria Police Station Case no. 286/2023 Date of FIR Date of Charge-Sheet 07.11.2023 31.03.2024 Juria Police Station Case no.320/2023 Date of FIR Date of Charge-Sheet 21.12.2023 30.04.2024
29. In the history sheet given with the 'proposal', the detenu was mentioned to be 32 years of age, who read upto Class-X in Bogoriguri High School. The names of his parents, wife, son, daughter and brothers were mentioned. The movable and immovable properties were also mentioned. An Intelligence Report submitted by an Inspector of Police, IBI, DSD, Nagaon and addressed to the Superintendent of Police, Nagaon was also made part of the proposal and the details of the afore-stated five cases registered at Juria Police Station were mentioned. In a note in the Intelligence Report, it was mentioned that the detenu was a veteran criminal and he was found involved in the afore-stated cases. Referring to Intelligence Inputs, it was noted that his release on bail had Page No. 20/41 become detrimental. The detenu was projected to be one of the main conduits through whom drugs were supplied to and from Nagaland and Manipur and therefore, his detention was necessary.
30. On receipt of the proposal from the Superintendent of Police, Nagaon, the Inspector General of Police, Central Range, Nagaon forwarded the proposal to the Secretary to the Government of Assam, Home [A] Department vide an Office Letter dated 07.10.2024 with a request to issue necessary detention order against Selim Uddin @ Faraji. It was subsequent to receipt of the Office Letter dated 07.10.2024, the respondent no. 4 as the Detaining Authority under the PIT-NDPS Act had issued the Detention Order on 22.01.2025.
31. It has emerged from the records of the afore-stated five cases that three of the five cases have been registered for offences under the NDPS Act. The other two cases are not registered for any offence under the NDPS Act. As the detenu has been arrayed as an accused in those three cases for offences under the NDPS Act, the Superintendent of Police, Nagaon identifying the proposed detenu as a habitual offender forwarded the proposal to the Detaining Authority on 24.09.2024. The Superintendent of Police, Nagaon forwarded additional information on 26.11.2024 in connection with the earlier proposal dated 24.09.2024. While forwarding additional information, it was mentioned that during the period he was on bail, the detenu was suspected to be indulging in illegal activities. But, the Detaining Authority had passed the Detention Order only on 22.01.2025, that is, after a period of near about four months after receipt of the proposal on 24.09.2024. The last of the alleged offending activities of the detenu in illicit trafficking of contraband was reported on 21.12.2023. In the other four cases, the detenu's alleged illegal activities were reported on 24.12.2016, 24.06.2020, 15.07.2021 and 07.11.2023 respectively. Thus, there was a gap of about nine months in forwarding of the preventive detention proposal from the last prejudicial activity alleged against the proposed detenu and there was delay of more than four months on the Page No. 21/41 part of the Detaining Authority to pass the Detention Order after receipt of the proposal for preventive detention.
32. In this connection, it appears appropriate to refer to the following observations made by the Hon'ble Supreme Court in the case of T.A. Abdul Rahman vs. State of Kerala, [1989] 4 SCC 741 :-
10. The conspectus of the above decisions can be summarised thus : The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case.
33. An order for preventive detention under Section 3[1] of the PIT-NDPS Act is a drastic measure whereby a person can be detained in order to curtail that person's anticipated activities in illicit trafficking in contraband substances. The object is not to punish the person for having done something but to intercept before he does it and to prevent him from doing. The Hon'ble Supreme Court in Sushanta Kumar Banik vs. State of Tripura and others, [2022] 13 S.C.R. Page No. 22/41 484, has observed as an underlying principle that if there is unreasonable delay between the date of the proposal and passing of the order of detention, such delay unless satisfactorily explained throws a considerable doubt on the genuineness of the requisite subjective satisfaction of the Detaining Authority in passing the detention order and consequently, render the detention order bad and invalid because of the snapping of the live and proximate link between the grounds of detention and the purpose of detention. A question whether the delay is unreasonable and stands unexplained depends on the facts and circumstances of each case. In Sushanta Kumar Banik [supra], the proposal to pass an appropriate order of detention under the provisions of the PIT-NDPS Act was submitted by the concerned Superintendent of Police on 28.06.2021 and the detention order was passed on 12.11.2021. The Hon'ble Court has found that the circumstances indicated that the Detaining Authority after the receipt of the proposal from the sponsoring authority was indifferent in passing the order of detention with greater promptitude and as there was no explanation as regards the delay, the live and proximate link between the grounds of detention and the purpose of detention had been found to have been snapped.
34. From the Table above, it is discernible that the last of the prejudicial activities alleged against the petitioner was reported on 21.12.2023. In the additional information provided on 26.11.2024, the Superintendent of Police, Nagaon mentioned that the detenu was released on bail in all the cases. In the last of the reported cases, that is, Juria Police Station Case no. 320/2023, the detenu was released on bail on 22.02.2024. Merely because there is a substantially long gap in time between the alleged illegal activities and the date of the Detention Order the causal connection is to be taken as snapped and the satisfaction reached by the Detaining Authority is to be regarded as unacceptable. But, it all depends upon the facts and circumstances of each case and the nature of explanation offered by the Detaining Authority for the delay which have occurred in passing the Detention Order.Page No. 23/41
35. As in the instant case there was delay between the last of the prejudicial activities alleged against the detenu and the passing of the Detention Order, which was unduly long, the Detaining Authority was obligated to provide a reasonable and plausible explanation whether it had examined the matter of delay to arrive at the purported satisfaction. In the absence of any explanation assigned in the Detention Order, the Detaining Authority is required to provide such explanation in the counter affidavit. Since the satisfaction is to be reached by the Detaining Authority himself, the counter affidavit providing the explanation for delay, more particularly, when the period of delay is unduly long and not proximate to the last prejudicial activity alleged, should normally be filed by the Detaining Authority himself though it is also not a hard and fast rule for all cases. The counter affidavit in this writ petition was not filed by the Detaining Authority himself but by an Additional Secretary stating to be acquainted with the facts and circumstances of the case. There is no explanation, not to speak of any reasonable and plausible explanation, explaining the period of undue delay which was occasioned in passing the Detention Order on the part of the Detaining Authority. There was no explanation also on the aspect of delay between the last prejudicial activity alleged and forwarding of the proposal and consequently, for the period of delay between the last prejudicial activity alleged and passing of the Detention Order. In such backdrop, the passing of the Detention Order is a clear pointer towards sitting over the proposal with laxity resulting in snapping of the live and proximate link between the grounds of detention and the purpose of detention as the delay was unreasonable and remained unexplained. It has, thus, thrown considerable doubt on subjective satisfaction stated to have been reached by the Detaining Authority.
36. The Detaining Authority for passing the Order of Detention had taken note of the afore-mentioned five criminal proceedings. In all the five criminal proceedings, the detenu was already released on bail. It is not mentioned that after the release of the detenu on bail in the five criminal proceedings that any application for cancellation of bail has been moved by the State / Prosecution Page No. 24/41 on the ground of violation of the conditions of bail by the detenu. It is always available to the State / Prosecution to move to the court which has passed an order of bail, with an application for cancellation of bail if the accused so released on bail, is found to have violated any condition of bail by indulging in criminal activities subsequently. If there exists ground to appeal against the bail orders then it is also open to the State / Prosecution to resort to ordinary criminal procedure. Since an order of preventive detention is a drastic and extra-ordinary measure, it is to be resorted to only in an extra-ordinary situation and it should not be resorted to in a routine manner in order to circumvent the ordinary criminal procedure. While forwarding the proposal and additional information, an apprehension was raised that the proposed detenu would continue with the alleged activities of illicit trafficking until detained as he kept on indulging in activities of illicit trafficking. Except such bald statement, no supporting materials in support of such statement was forwarded by the proposing authority to the Detaining Authority. The proposing authority was of the view that the detenu's detention was necessary to deter other drug paddlers and traffickers. In the considered view of this Court, the situations pointed out, without any supporting materials, in the proposal and additional information forwarded by the proposing authority and in the Detention Order passed by the Detaining Authority, even if the same are accepted, then the same were for the State / Prosecution to approach the competent courts for cancellation of the bail orders only and the same could not be a pretext to pass an order of preventive detention.
37. It is evident from Section 3[2] of the PIT-NDPS Act that whenever a detention order is made by the State Government or its Officer specially empowered for that purposes an obligation is cast on the State Government to forward a report to the Central Government in respect of that order within a period of ten days. The purpose of this provision is evidently to enable the Central Government to keep an eye of observance on the exercise of power under Section 3[1] by the State Government or its Officers. It ensures that the Central Government is informed of the preventive detention measures taken by Page No. 25/41 the State Government or its Officers under the PIT-NDPS Act and the Parliament has envisaged this oversight mechanism as a crucial one for checking the use of a serious power like preventive detention. The records of the detention proceeding for the instant case do not reveal that any report in compliance of Section 3[2] of the PIT-NDPS Act was forwarded to the Central Government within a period of ten days from the date, 22.01.2025 when the Detention Order was passed by the Detaining Authority. It needs a mention that power is available in the Central Government under Section 12[1] of the PIT-NDPS Act to revoke or modify, at any time, a detention order made by an officer of the State Government which is the case in hand. In such backdrop, failure to forward a report under Section 3[2] is an infraction of one of the procedural safeguards guaranteed to the detenu.
38. There is fundamental right guaranteed to the detenu to represent against his preventive detention order. A conjoint reading of Section 12 of the PIT-NDPS Act and Section 21 of the General Clauses Act coupled with the fundamental right guaranteed by Article 21 and Article 22[5] of the Constitution makes it evident that the power of revocation can be exercised by authorities, namely, the empowered officer of the State Government or the Central Government, and the State Government as well as the Central Government.
39. A Constitution Bench of the Hon'ble Supreme Court in Kamleshkumar Ishwardas Patel vs. Union of India and others, [1995] 4 SCC 51, after having posed a question in paragraph 2 of the Judgment, has answered the question in the following manner :-
2. When an order for preventive detention is passed by an officer especially empowered to do so by the Central Government or the State Government, is the said officer required to consider the representation submitted by the detenu?
* * * * * Page No. 26/41
34. .......By specially empowering a particular officer under Section 3[2] of the COFEPOSA Act and the PIT NDPS Act the Central Government or the State Government confers an independent power on the said officer to make an order of detention after arriving at his own satisfaction about the activities of the person sought to be detained. Since the detention of the person detained draws its legal sanction from the order passed by such officer, the officer is the detaining authority in respect of the said person. He continues to be the detaining authority so long as the order of detention remains operative. He ceases to be the detaining authority only when the order of detention ceases to operate. This would be on the expiry of the period of detention as prescribed by law or on the order being revoked by the officer himself or by the authority mentioned in Section 11 of the COFEPOSA Act and Section 12 of the PIT NDPS Act. There is nothing in the provisions of these enactments to show that the role of the officer comes to an end after he has made the order of detention and that thereafter he ceases to be the detaining authority and the Government concerned which had empowered him assumes the role of the detaining authority. We are unable to construe the provisions of the said enactments as providing for such a limited entrustment of power on the officer who is specially empowered to pass the order. An indication to the contrary is given in Section 11 of the COFEPOSA Act and Section 12 of the PIT NDPS Act which preserve the power of such officer to revoke the order that was made by him. This means that the officer does not go out of the picture after he has passed the order of detention. It must, therefore, be held that the officer specially empowered for that purpose continues to be the detaining authority and is not displaced by the Government concerned after he has made the order of detention. Therefore, by virtue of his being the detaining Page No. 27/41 authority he is required to consider the representation of the person detained against the order of detention.
* * * * *
38. Having regard to the provisions of Article 22[5] of the Constitution and the provisions of the COFEPOSA Act and the PIT NDPS Act the question posed is thus answered : Where the detention order has been made under Section 3 of the COFEPOSA Act and the PIT NDPS Act by an officer specially empowered for that purpose either by the Central Government or the State Government the person detained has a right to make a representation to the said officer and the said officer is obliged to consider the said representation and the failure on his part to do so results in denial of the right conferred on the person detained to make a representation against the order of detention. This right of the detenu is in addition to his right to make the representation to the State Government and the Central Government where the detention order has been made by an officer specially authorised by a State Government and to the Central Government where the detention order has been made by an officer specially empowered by the Central Government, and to have the same duly considered. This right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the authority that has made the order of detention at the time when he is served with the grounds of detention so as to enable him to make such a representation and the failure to do so results in denial of the right of the person detained to make a representation.Page No. 28/41
40. It is clearly discernible from the Constitution Bench judgment in Kamleshkumar [supra] that when a detention order is made under Section 3[1] of the PIT-NDPS Act by an Officer specially empowered for that purpose by the State Government, the person detained has a right to make a representation to the said Officer, and the said Officer is obligated to consider the said representation. A failure on his part to do so would result in denial of the right conferred on the person detained to make a representation. Such right of the detenu is in addition to the right to make the representation to the State Government and the Central Government.
41. A Constitution Bench in Pankaj Kumar Chakrabarty and others vs. State of West Bengal, [1969] 3 SCC 400, has held that a detenu has a constitutional right and there is on the State Government a corresponding constitutional obligation to consider the representation irrespective of whether his representation is made before or after the detenu's case has been referred to the Advisory Board. Another Constitution Bench in Jayanarayan Sukul vs. State of West Bengal, [1970] 1 SCC 219, has held in the following manner :-
18. It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possible.
The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities.
Page No. 29/41* * * * *
20. Broadly stated, four principles are to be followed in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenu's representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu.
42. Another Constitution Bench in Haradhan Saha vs. the State of West Bengal and others, [1975] 3 SCC 198, has held to the following effect :-
Page No. 30/4124. ......The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The Board, on the other hand, considers whether in the light of the representation there is sufficient cause for detention.
* * * * *
29. .......If the representation of the detenu is received before the matter is referred to the Advisory Board, the detaining authority considers the representation. If a representation is made after the matter has been referred to the Advisory Board, the detaining authority will consider it before it will send representation to the Advisory Board.
43. From the above exposition of law by the Constitution Benches, it is settled that if the representation is received before the matter is referred to the Advisory Board, the Detaining Authority / the appropriate Government has to consider such representation. If the representation is made after the matter has been referred to the Advisory Board, the Detaining Authority / the appropriate Government shall still have to consider the representation first and then send the representation to the Advisory Board.
44. A three-Judge Bench in Ankit Ashok Jalan vs. Union of India, [2020] 16 SCC 127, has inter-alia considered questions pertaining to preventive detention under Section 3[1] of the Conservation of Foreign Exchange and Prevention of Smuggling Activities [COFEPOSA] Act, 1974, which provision is similar to Section 3[1] of the PIT-NDPS Act. The Constitution Bench decisions in Pankaj Kumar Chakrabarty [supra], Jayanarayan Sukul [supra], Haradhan Saha [supra] and others have been considered and after consideration, the majority view has been recorded as under :-
Page No. 31/4117. In terms of these principles, the matter of consideration of representation in the context of reference to the Advisory Board, can be put in the following four categories:
17.1. If the representation is received well before the reference is made to the Advisory Board and can be considered by the appropriate Government, the representation must be considered with expedition.
Thereafter the representation along with the decision taken on the representation shall be forwarded to and must form part of the documents to be placed before the Advisory Board.
17.2. If the representation is received just before the reference is made to the Advisory Board and there is not sufficient time to decide the representation, in terms of law laid down in Jayanarayan Sukul [Jayanarayan Sukul vs. State of W.B., (1970) 1 SCC 219] and Haradhan Saha [Haradhan Saha vs. State of W.B., (1975) 3 SCC 198] the representation must be decided first and thereafter the representation and the decision must be sent to the Advisory Board. This is premised on the principle that the consideration by the appropriate Government is completely independent and also that there ought not to be any delay in consideration of the representation.
17.3. If the representation is received after the reference is made but before the matter is decided by the Advisory Board, according to the principles laid down in Haradhan Saha [Haradhan Saha vs. State of W.B., (1975) 3 SCC 198], the representation must be decided. The decision as well as the representation must thereafter be immediately sent to the Advisory Board.
Page No. 32/4117.4. If the representation is received after the decision of the Advisory Board, the decisions are clear that in such cases there is no requirement to send the representation to the Advisory Board. The representation in such cases must be considered with expedition.
18. There can be no difficulty with regard to the applicability of the principles in the 1st and the 4th stage of the aforesaid categories. The difficulty may arise as regards the application of principles at the 2nd and the 3rd stage. But that difficulty was dealt with sufficient clarity in Jayanarayan Sukul [Jayanarayan Sukul vs. State of W.B., (1970) 1 SCC 219] and Haradhan Saha [Haradhan Saha vs. State of W.B., (1975) 3 SCC 198] as stated hereinabove. If it is well accepted that the representation must be considered with utmost expedition; and the power of the Government is completely independent of the power of the Advisory Board; and the scope of consideration is also qualitatively different, there is no reason why the consideration by the Government must await the decision by the Advisory Board. None of the aforesaid cases even remotely suggested that the consideration must await till the report was received from the Advisory Board.
45. The role of the Advisory Board is delineated in Section 9 of the PIT-NDPS Act.
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. But, the State Government is always under obligation to consider and dispose of any representation received from the detenu as expeditiously as possible.
Page No. 33/4146. At this juncture, it needs iteration that the Government is required to consider the Representation of the detenu to ascertain, essentially, whether the order of detention is in conformity with the power under the law and the Advisory Board is required to consider the representation to examine whether there is sufficient cause for detention. Therefore, the Government's power of consideration is completely independent of any action by the Advisory Board, as has been held in the majority view in the three-Judge decision in Ankit Ashok Jalan vs. Union of India and others, [2020] 16 SCC 185. The obligation on the part of the Government to consider the representation is irrespective of the fact whether the representation was made before or after the case was referred to the Advisory Board. It has been held that the consideration should not wait till the report is received from the Advisory Board.
47. It has also been held in Ankit Ashok Jalan [supra] that a specially empowered officer, who passes the order of detention, in exercise of special empowerment, has no statutory role to play at the stage when the report is received from the Advisory Board. The report is to be considered by the appropriate Government and not by the empowered officer. The report of the Advisory Board is meant only for consumption of the appropriate Government. A specially empowered officer who has passed the order of detention, by statutory intent, is not to be privy to the report nor does the statute contemplate any role for such specially empowered officer at the stage of consideration of the opinion of the Advisory Board. The report is not meant for use by the specially empowered officer who has acted as the Detaining Authority. The law has been held to be settled that a representation can be made to the specially empowered officer who has passed the order of detention in accordance with the power and the representation has to be independently considered by such Detaining Authority without waiting for the report of the Advisory Board.
Page No. 34/4148. In the affidavit-in-opposition filed on behalf of the respondent no. 3, 4, 5 & 6 which include the State Government and the Detaining Authority, the deponent has maintained conspicuous silence on the aspect of consideration of the Representation submitted by the detenu on 13.02.2025 against the Detention Order dated 22.01.2025 before the State Government, the Detaining Authority and the Advisory Board. The Advisory Board in its Order dated 01.03.2025 had recorded that the detenu stated before it that he submitted a Representation to the State Government but the outcome of the Representation was not known to him. In the Order dated 18.02.2025 passed by the Advisory Board, the Advisory Board had ordered that Representation, if any, submitted by the detenu shall be placed by the Government along with the disposal order on the date fixed for hearing of the detenu. The detenu was heard on 01.03.2025 and there was no mention of any Representation addressed to the Advisory Board by the detenu. In the Report dated 11.03.2025, the Advisory Board has not mentioned that any Representation was received by it after being forwarded by the State Government and it had considered and disposed of the Representation recording its view on it.
49. As there is no mention about consideration and disposal of the Representations by the Detaining Authority, the State Government and the Advisory Board, we have perused the records of the detention proceeding placed before us to ascertain about the fact of consideration of the Representation of the detenu by the afore-mentioned three authorities. Upon perusal of the records of the detention proceeding, there is nothing to suggest that the Representations submitted by the detenu on 13.02.2025 was ever considered by any of the afore-mentioned three authorities, much less its disposal. Delay in disposal of the Representation may not always be a vitiating factor in a given facts and circumstances of the case. But, the present one is a case where the Representations submitted by the detenu on 13.02.2025 were not at all considered by the afore-mentioned three authorities resulting in vitiation of the detention proceeding. The acts of non-consideration of the Representations by these authorities is clearly an unconstitutional act when it is imperative for Page No. 35/41 these authorities to consider and dispose of the Representations. When the liberty of a person is in peril immediate action only safeguards the constitutional rights of the detenu.
50. In the history sheet appended to the proposal forwarded by the Proposing Authority, the Proposing Authority mentioned that the petitioner read upto Class-X in Bogoriguri High School. The history sheet is silent about the languages the detenu is conversant with. The detenu has, on the other hand, asserted that he studied upto Class-VII and he can subscribe only his signature in English language. It has been asserted that the detenu is not conversant with English language and he is not competent and educated enough to understand the contents of the Detention Order, the Grounds of Detention and the supporting documents which were enclosed thereto. It has been a categorical assertion throughout that English is a language not at all understandable by the detenu and therefore, furnishing of the copies of the Detention Order, the Grounds of Detention and the supporting documents in English language have deprived the detenu from making effective communication. On perusal of the records of the detention proceeding, it is noticed that there is an endorsement on the body of the Detention Order dated 22.01.2025 of the Jailor, Central Jail, Nagaon to the effect that the contents were read over and explained to the detenu in Assamese language, under videography and in presence of witnesses, while serving it upon the detenu on 30.01.2025. There is also a signature of the detenu in English along with his thumb impression below an endorsement that he had received the Detention Order and the Grounds of Detention along with its enclosures. There endorsement part is not the handwriting of the detenu. There is, however, no similar endorsement on body of the Grounds of Detention or on the supporting documents. The fact of such reading over and explaining the contents to the detenu in Assamese language is a clear pointer towards the detenu's familiarity with Assamese language and non-familiarity with English language. The transcripts of the Detention Order, the Grounds of Detention and the Page No. 36/41 supporting documents, mentioned in paragraph 27 above, were not provided to the detenu in Assamese.
51. In Harikisan vs. State of Maharashtra and others, reported in AIR 1962 SC 911, a Constitution Bench of the Hon'ble Supreme Court examined the matter of preventive detention wherein a writ of habeas corpus was sought for. The appellant-detenu was preventively detained by an Order dated 10.04.1961 passed by the District Magistrate under Section 3[1][a][ii] of the Preventive Detention Act [Act IV of 1950]. The detention order and the grounds of detention were served on the appellant-detenu on the same date. It was urged on behalf of the appellant-detenu that the detention order and the grounds of detention being in English, he was unable to understand them and when asked for a Hindi version, the said request was denied on the ground that the documents were served in the official language, English. The writ petition seeking the writ of habeas corpus was dismissed by the High Court by recording that the appellant-detenu studied up to 7th Hindi standard equivalent to 3rd English standard. The High Court discarded the contention by holding that the service upon the appellant-detenu of the detention order and the grounds of detention in English was enough communication to enable him to make his representation.
51.1. In the above backdrop, the Hon'ble Supreme Court had proceeded to observe as under :-
7....... The learned Attorney-General has tried to answer this contention in several ways. He has first contended that when the Constitution speaks of communicating the grounds of detention to the detenue, it means communication in the official language, which continues to be English; secondly, the communication need not be in writing and the translation and explanation in Hindi offered by the Inspector of Police, while serving the Order of Detention and the grounds would be enough compliance with the requirements of the Page No. 37/41 law and the Constitution; and thirdly, that it was not necessary in the circumstances of the case to supply the grounds in Hindi. In our opinion, this was not sufficient compliance in this case with the requirements of the Constitution, as laid down in clause [5] of Article
22. To a person, who is not conversant with the English language, service of the Order and the grounds of detention in English, with their oral translation or explanation by the police officer serving them does not fulfil the requirements of the law. As has been explained by this Court in the case of State of Bombay v. Atma Ram Sridhar Vaidya [1951 SCC 43 : (1951) SCR 167], clause [5] of Article 22 requires that the grounds of his detention should be made available to the detenue as soon as may be, and that the earliest opportunity of making a representation against the Order should also be afforded to him. In order that the detenue should have that opportunity, it is not sufficient that he has been physically delivered the means of knowledge with which to make his representation. In order that the detenue should be in a position effectively to make his representation against the Order, he should have knowledge of the grounds of detention, which are in the nature of the charge against him setting out the kinds of prejudicial acts which the authorities attribute to him.
Communication, in this context, must, therefore, mean imparting to the detenue sufficient knowledge of all the grounds on which the Order of Detention is based. ............... Naturally, therefore, any oral translation or explanation given by the police officer serving those on the detenue would not amount to communicating the grounds. Communication, in this context, must mean bringing home to the detenue effective knowledge of the facts and circumstances on which the Order of Detention is based.
Page No. 38/418. We do not agree with the High Court in its conclusion that in every case communication of the grounds of detention in English, so long as it continues to be the official language of the State, is enough compliance with the requirements of the Constitution. If the detained person is conversant with the English language, he will naturally be in a position to understand the gravamen of the charge against him and the facts and circumstances on which the order of detention is based. But to a person who is not so conversant with the English language, in order to satisfy the requirements of the Constitution, the detenue must be given the grounds in a language which he can understand, and in a script which he can read, if he is a literate person.
9. The Constitution has guaranteed freedom of movement throughout the territory of India and has laid down detailed rules as to arrest and detention. It has also, by way of limitations upon the freedom of personal liberty, recognised the right of the State to legislate for preventive detention, subject to certain safeguards in favour of the detained person, as laid down in clauses [4] and [5] of Article 22. One of those safeguards is that the detained person has the right to be communicated the grounds on which the order of detention has been made against him, in order that he may be able to make his representation against the order of detention. In our opinion, in the circumstances of this case, it has not been shown that the appellant had the opportunity, which the law contemplates in his favour, of making an effective representation against his detention. On this ground alone we declare his detention illegal, and set aside the Order of the High Court and the Order of Detention passed against him.
52. In such backdrop, the issue which has arisen for consideration is whether, due to supply of the requisite documents in English language and explanation of Page No. 39/41 the contents of only the Detention Order in Assamese, the detenu had been deprived of the opportunity of making an effective representation against the Detention Order dated 22.01.2025 resulting in violation of the fundamental right guaranteed under Article 22[5] of the Constitution of India read with Section 3[3] of the PITNDPS Act. In our considered view, the answer is in the affirmative. It has emerged that the detenu is not conversant with the English language and he cannot read and write in the English language and the detenu is not able enough to read and write in the English language. To the detenu, who is not conversant with the English language, communication of the Detention Order dated 22.01.2025 and the Grounds of Detention along with the supporting documents in English with oral translation of only the contents of the Detention Order, at the time of serving those documents, does not fulfill the requirements of law and such non-communication has made the act of preventive detention of the detenu further vulnerable to the extent of making the act unsustainable in law. This view of ours is justified by a nos. of precedents of the Hon'ble Supreme Court of India and of this Court on the issue, and some of them are Hadibandhu Das vs. District Magistrate, Cuttack and another, AIR 1969 SC 43, Mrs. Nafisa Khalifa Ghanem vs. Union of India and others, [1982] 1 SCC 422, Mrs. Tsering Dolkar vs. Administrator, Union Territory of Delhi and others, [1987] 2 SCC 6, Mrs. Hina Khan vs. Superintendent, Gauhati District Jail, Gauhati and others, [1989] 2 GLR 253, and Chinneilhing Haokip @ Neopi vs. the State of Nagaland and others, 2025:GAU-NL:7-DB.
53. From the above discussion, it is summed up that an obligation has been clearly cast on the Detaining Authority making the Order of Detention to furnish copies all the supporting documents, as relied on by the Detaining Authority, along with the Detention Order and the Grounds of Detention to a person, preventively detained, in a language he understands. Such compliance would only discharge the responsibility cast on the Detaining Authority for enabling the detenu to make an effective representation against the order of detention for compliance of the Constitutional safeguard guaranteed by Article 22 [5] of the Constitution. The Detaining Authority cannot discharge such responsibility Page No. 40/41 by merely furnishing the copies of the Detention Order, the Grounds of Detention and the other supporting documents in a language other than a language understood by the detenu and such act will fall short of Constitutional mandate of Article 22 [5] and Section 3 [3] of the PIT-NDPS Act. Reverting back to the facts of the case, we have already found out what had been served upon the detenu on 30.01.2025. Non-supply of translated copies of the Detention Order dated 22.01.2025, the Grounds of Detention and the other supporting documents in a language understood by the detenu, who claimed to had read up to Class - VII standard, has clearly resulted in infraction of the fundamental right of the detenu guaranteed under Article 22 [5] of the Constitution of India, along with the right under Section 3 [3] of the PIT-NDPS Act.
54. The decision in G. Reddeiah [supra] is the subjective satisfaction of the Detaining Authority and also on the aspect of judicial review on the validity of subjective satisfaction. The detenu therein was found involved in illegal activities eight times during a period of one year immediately prior to passing of the order of preventive detention. It was not the case of the detenu that the required and relied-on materials were not furnished preventing him from making an effective representation.
55. In light of the discussion made, for the reasons assigned and the findings reached as above, it is held that the rights and safeguards of the detenu guaranteed under Article 21 and Article 22 of the Constitution of India and Section 3 of the PIT-NDPS Act have been found infringed. As a result, any further detention of the detenu on the strength of the Detention Order dated 22.01.2025 is termed illegal, invalid and unconstitutional. Resultantly, it is set aside and quashed. Consequently, the subsequent Confirmation Order dated 29.03.2025 is also set aside.
Page No. 41/4156. Summing up, the writ petition is allowed. It is, therefore, ordered that the detenu, Md. Selim Uddin @ Faraji is to be released forthwith if he is not required to be detained in connection with any other case.
57. The records of the detention proceedings are returned herewith.
JUDGE JUDGE
Comparing Assistant