Tripura High Court
Sri Nirmal Shil vs The State Of Tripura on 16 June, 2020
Equivalent citations: AIRONLINE 2020 TRI 166
Bench: S. Talapatra, S.G Chattopadhyay
IN THE HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) (HC) No.09 of 2019
Sri Nirmal Shil
son of late Gopal Chandra Shil, resident of
Gandhigram, P.S. Airport, District- West
Tripura
......... Petitioner
-Versus-
1. The State of Tripura,
represented by the Secretary, Department
of Home, Government of Tripura,
Secretariat Building, P.O. Kunjaban, P.S.
NCC, District- West Tripura
2. The Additional Secretary,
Department of Home, Government of
Tripura, Secretariat Building, P.O.
Kunjaban, P.S. NCC, District- West Tripura
3. The Director General of Police,
West Tripura
4. The Union of India,
represented by the Secretary, Ministry of
Home Affairs, Government of India, Jai
Singh Marg, Connaught Palace, New Delhi-
110001
........ Respondents
For the Petitioner (s) : Mr. P.K. Biswas, Sr. Adv.
Mr. P. Majumder, Adv.
Mr. D. Biswas, Adv
For the Respondent (s) : Mr. A.K. Bhowmik, Advocate General
Mr. H. Deb, Asstt. S.G.
Mr. K. De, Addl. G.A.
Date of hearing : 14.05.2020
Date of delivery of : 16.06.2020
Judgment & order
YES NO
Whether fit for reporting : √
Page 2 of 17
HON'BLE MR. JUSTICE S. TALAPATRA
HON'BLE MR. JUSTICE S.G CHATTOPADHYAY
[
JUDGMENT & ORDER
[Talapatra, J]
The petitioner, hereinafter referred as the detenue, has
been detained in pursuance to the order under No.F.15(09)- PD/2018(P)/4205 dated 26.12.2018 [Annexure-1 to this petition] under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, in short PITNDPS Act. [2] The grounds of detention as disclosed in the order dated 26.12.2018 are extracted hereunder:
Following are the grounds for detention of Shri Nirmal Shil, S/O- Late Gopal Shil of Gandhigra Pashimpara, P.S. Airport, West Tripura district under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. [1] As per report of Director General of Police, Tripura, the aforesaid Shri Nirmal Shil was involved in the following cases:
[i] East Agartala PS case No.108/2018 dated 20.06.2018 U/S 417/468/469/34 IPC.
[ii] Airport PS case No.71/14 dated 31.05.2014 U/S 22(C) /25/29 of NDPS Act, 1985 and read with Section 45 of TE Act.
[iii] Airport PS case No.82/14 dated 30.06.2014 U/S 22(C)/25/29 of NDPS Act.
[iv] Airport PS case No.36/15 dated 04.06.2015 U/S 22(C) of NDPS Act.
[v] Airport PS case No.2018ARP035 dated 01.06.2014 U/S 25/22 (C) of NDPS Act.
[2] From the report of Director General of Police, it appears that aforesaid Shri Nirmal Shil is engaged in the activities like illicit Page 3 of 17 trafficking of Narcotic Drugs and Psychotropic Substances which are harmful and pre-judicial to the interest of the society.
[3] He is spoiling the future youths in our society and making them drug addicts. It is a social crime. Therefore, his detention under PITNDPS Act is required for eradication of the menace of drugs.
[3] By virtue of the detention order, the detenue was apprised of his right to make representation to the authority who passed the detention order and also his right to be heard before the Advisory Board as constituted under Section 9 of the PITNDPS Act. In this case, the petitioner did not file any representation within the meaning of Article 22(5) of the Constitution of India which provides that any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall 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. The detenue has made a representation to the respondents through the Superintendent of Kendriya Sansodhanagar, Bishalgar stating that except the copy of the detention order dated 26.12.2018, no materials based on which the authority formed their satisfaction in respect of the detention have been supplied to him. The detenue has further stated in the said representation dated 10.08.2019 [Annexure-2 to this writ petition] that the detention order is grossly illegal for taking into consideration Page 4 of 17 of the irrelevant materials. According to him, he was never involved in dealing in contraband goods like narcotic drugs or psychotropic substances nor was he engaged in illicit traffic of such contraband goods. The police cases as referred had falsely framed him with mala fide intention and at no point of time, contraband goods were ever seized or found from his possession. But the purpose of making the said representation is non supply of the documents which formed the basis for the detention. For non supply of those documents the detenue has been deprived of making effective representation against the detention order immediately, which is a fundamental right of the detenue in terms of Article 22(5) of the Constitution of India. Further, he has raised a pertinent question that though the detenue was in Khowai Sub-Jail at the time of passing the detention order, but the said order was not served on him before 20.07.2019, whereas the order was issued on 26.12.2018. The detenue has asserted in the said representation that in view of Section 9(b) of the PITNDPS Act, the order of detention was supposed to be placed before the Advisory Board along with the representation made by him, if any, but for non-
supply of materials within the stipulated period he has been deprived of making an immediate and effective representation. Hence, the Page 5 of 17 order of detention has to be revoked for violation of the statutory and the constitutional provisions.
[4] It appears from the reply filed by the respondents No.1,2 & 3 that the Advisory Board, on examination of the records and documents placed before it, has recorded its opinion vide the report dated 17.09.2019 that 'there was sufficient materials before the detaining authority for passing the order of detention against the detenue to prevent him from further indulging in or dealing with narcotic drugs and psychotropic substances' [extracted from the order dated 21.09.2019]. Having due regard to the said order dated 17.09.2019, the detaining authority by its order under No.F.15(9)-
PD/2018(P) dated 21.09.2019 has confirmed the order of detention to continue until expiration of 1(one) year from the date of detention. It may also be noted that the representation which the detenue had made on 10.08.2019 was also rejected by the order under No.F.15(9)-PD/2018(P) dated 28.08.2019 [Annexure-3 to this petition]. In the said order, this court is surprised to note the following observations which were not at all referred in the detention order:
"WHEREAS, after receiving the representation of the detenue namely Shri Nirmal Shil, DGP was requested to submit para-wise comments. The representation submitted by Shri Nirmal Shil for Page 6 of 17 his release from detention and the para-wise comments received from the DGP have been examined. It appears that said Nirmal Shil is an FIR named accused person in various NDPS cases registered in the District. From the report of DGP, it appears that a requisition has been received from Bangladesh through BSF for verification of his alleged involvement in connection with Phensedyle production factory and sharing of this information indicates his involvement in trans-border crime and does not prove his innocence.
WHEREAS, from the report of the Director General of Police, Tripura, it also appears that in two cases of Airport PS vide No.71/2014 and 82 /2014 respectively, illicit NDPS in commercial quantity was seized from the house of his neighbour which was used by him as a store to run his illicit drugs trafficking business in connection with Airport PS Case No.36/15, commercial quantity of NDPS were seized from Nirmal Shil's house on 04.06.2015. Both Airport PS case No.82/2014 and 36/2015 ended in charge sheets against him.
There is no dispute that the detention order was executed on 20.07.2019.
[5] Mr. P.K. Biswas, learned senior counsel appearing for the detenue has submitted that with the order of detention dated 26.12.2018 issued by the Addl. Secretary, Department of Home, Government of Tripura, the copy of the proposal of Director General of Police and other relevant documents were not supplied to the detenue. The detenue was supplied with the bare grounds [as reproduced before]. It was not discernable to the detenue what allegations or the materials were referred in the proposal/report of the Director General of Police. According to Mr. Biswas, learned senior counsel appearing for the detenue, the disclosure of the grounds in the order of detention is not available. Article 22(5) obligates supply Page 7 of 17 of the materials considered by the detaining authority for enabling the detenue make effective representation within the meaning of Article 22(5) of the Constitution of India. Since the detaining authority has failed to discharge its obligation of supplying the materials depending upon which the detaining authority has formed the grounds of detention, the detention order is violative of the right of the detenue as guaranteed under Article 22(5) of the Constitution and hence, the detention order is liable to be quashed as the same was illegal ab initio. Mr. Biswas, learned senior counsel has quite emphatically submitted that the delayed execution of the detention order itself shows that the necessity is only a mask. Such belated execution presupposes absence of necessity for detention. To consolidate his submission, Mr. Biswas, learned senior counsel has relied on a few apex court decisions.
In Shalini Soni and others vs. Union of India and others, reported in (1980) 4 SCC 544, the apex court having referred to Article 22(5) of the Constitution has observed that the said Article has two facets (1) communication of the grounds on which the order of detention has been made; (2) opportunity of making a representation against the order of detention. It has been further observed in Shalini Soni (supra) as under: Page 8 of 17
Communication of the grounds pre-supposes the formulation of the grounds and formulation of the grounds requires and ensures the application of the mind of the detaining authority to the facts and materials before it, that is to say to pertinent and proximate matters in regard to each individual case and excludes the elements of arbitrariness and automatism (if one may be permitted to use the word to describe a mechanical reaction without a conscious application of the mind). It is an unwritten rule of the law, constitutional and administrative, that whenever a decision making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only eschewing the irrelevant and the remote. Where there is further an express statutory obligation to communicate not merely the decision but the grounds on which the decision is founded, it is a necessary corollary that the grounds communicated, that is, the grounds so made known, should be seen to pertain to pertinent and proximate matters and should comprise all the constituent facts and materials that went in to make up the mind of the statutory functionary and not merely the inferential conclusions. Now, the decision to detain a person depends on the subjective satisfaction of the detaining authority. The Constitution and the statute cast a duty on the detaining authority to communicate the grounds of detention to the detenu. From what we have said above, it follows that the grounds communicated to the detenu must reveal the whole of the factual material considered by the detaining authority and not merely the inferences of fact arrived at by the detaining authority. The matter may also be looked at from the point of view of the second fact of Art. 22(5). An opportunity to make a representation against the order of detention necessarily implies that the detenu is informed of all that has been taken into account against him in arriving at the decision to detain him. It means that the detenu is to be informed not merely, as we said, of the inferences of fact but of all the factual material which have led to the inferences of fact. If the detenu is not to be so informed the opportunity so solemnly guaranteed by the Constitution becomes reduced to an exercise in futility. Whatever angle from which the question is looked at, it is clear that "grounds" in Art. 22(5) do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences. The 'grounds' must be self-sufficient and self- explanatory. In our view copies of documents to which reference is made in the `grounds' must be supplied to the detenu as part of the `grounds'.
[Emphasis added] [6] Reference has also been made A.C. Razia vs. Govt. of Kerala and others, reported in (2004) 2 SCC 621, where the apex court [per majority] while dwelling with the constitutional safeguards provided by Article 22(4) and Article 22(5) of the Constitution and particularly in Page 9 of 17 respect of Article 22(5) of the Constitution has restated the law in the following manner:
10. We are concerned here with clause (5) of Article 22. The dual rights under clause (5) are : (i) the right to be informed as soon as may be of the grounds on which the order has been made, that is to say, the grounds on which the subjective satisfaction has been formed by the detaining authority and (ii) the right to be afforded the earliest opportunity of making a representation against the order of detention. By judicial craftsmanship certain ancillary and concomitant rights have been read into this Article so as to effectuate the guarantees/safeguards envisaged by the Constitution under Clause (5) of Article 22. For instance, it has been laid down by this Court that the grounds of detention together with the supporting documents should be made available to the detenu in a language known to the detenu. The duty to apprise the detenu of the right to make representation to one or more authorities who have power to reconsider or revoke the detention has been cast on the detaining authority. So also the duty to consider the representation filed by or on behalf of the detenu with reasonable expedition has been emphasized in more than one case and where there was inordinate delay in the disposal of representation, the detention was set aside on that very ground.
[Emphasis added] [7] The law has been restated by the apex court quite succinctly in Adishwar Jain vs. Union of India and another, reported in (2006) 11 SCC 339 as follows:
29. What is, therefore, relevant was as to whether the documents were material. If the documents were material so as to enable the detenue to make an effective representation which is his constitutional as also statutory right, non-supply thereof would vitiate the order of detention.
30. It is a trite law that all documents which are not material are not necessary to be supplied. What is necessary to be supplied is the relevant and the material documents, but, thus, all relevant documents must be supplied so as to enable the detenue to make an effective representation which is his fundamental right under Article 22(5) of the Constitution of India. Right to make an effective representation is also a statutory right. [See Sunila Jain v. Union of India and Another [(2006) 3 SCC 321] [Emphasis added] Page 10 of 17 [8] In Union of India vs. Ranu Bhandari, reported in (2008) 17 SCC 348, the apex court has further consolidated the law by stating that when a detention order is passed, copies of all documents both against the detenue and in his favour, which had been relied upon by the detaining authority for reaching the satisfaction that in the interest of the state and its citizen, the preventive detention of the detenue is necessary, must be supplied to the detenue to enable him make an effective representation against the detention order in compliance with Article 22(5) of the Constitution. These are the minimum safeguards to ensure that the preventive detention laws which are in evil necessity do not become instruments of oppression in the hands of the authorities concerned or to avoid criminal proceedings which would entail a proper investigation [Paras-27 & 31].
[9] Finally, Mr. Biswas, learned senior counsel appearing for the detenue has relied on a decision of the apex court in Union of India and another vs. Dimple Happy Dhakad, reported in AIR 2019 SC 3428, where the apex court had occasion to observe as follows:
22. There is no statutory obligation on the part of the detaining authority to serve the grounds of detention and relied upon documents on the very same day; more so, when there is nothing Page 11 of 17 to show that the detaining authority was guilty of inaction or negligence. The principle laid down by the Supreme Court in Mehdi Mohamed Joudi v. State of Maharashtra and others : (1981) 2 SCC 358 that non-supply of documents and material pari passu would vitiate the detention order must be understood in the context of Section 3(3) of the COFEPOSA Act. Serving of detention order, grounds of detention and supply of documents must be contemporaneous as mandated within the time limit of five days stipulated under Section 3(3) of the COFEPOSA Act and Article 22(5) of the Constitution of India.
[10] Mr. Biswas, learned senior counsel has also relied on a decision of the apex court in Usha Agarwal vs. Union of India and others, reported in (2007) 1 SCC 295 in respect of unexplained delay in serving the order. It has been held in Usha Agarwal (supra) as under:
23. In Kamleshkumar Ishwardas Patel vs. Union of India : (1995) 4 SCC 51, this Court observed thus :-
"Construing the provisions of Article 22(5) we have explained that the right of the person detained to make a representation against the order of detention comprehends the right to make such a representation to the authority which can grant such relief, i.e., the authority which can revoke the order of detention and set him at liberty and since the officer who has made the order of detention is competent to revoke it, the person detained has the right to make a representation to the officer who made the order of detention. The first premises that such right does not flow from Article 22(5) cannot, therefore, be accepted."
Thus, Mr. Biswas, learned senior counsel has urged this court to quash the detention order and release the detenue forthwith by issuance of the writ of habeas corpus.
[11] Mr. A.K. Bhowmik, learned Advocate General appearing for the respondents No.1,2 & 3 has submitted that the detenue was Page 12 of 17 made aware or informed about the materials those were considered for forming the grounds of detention. In the police cases where the detenue is implicated the contents of the complaint, based on which the cases are registered, are definitely known to the detenue and as such, there had been no prejudice to the detenue in making the effective representation within the meaning of Article 22(5) of the Constitution of India. Mr. Bhowmik, learned Advocate General has raised a jurisprudential objection in respect of maintainability of the writ petition as the detenue has not challenged the final order dated 21.09.2019 whereby the order of detention dated 26.12.2018 has been confirmed and it has been directed that the detention period shall continue until expiration of one year from the date of detention. According to Mr. Bhowmik, learned Advocate General, unless the said order is challenged no writ of habeas corpus may be issued by this court. Mr. Bhowmik, learned Advocate General has further submitted that non supply of the material documents which is within the knowledge of the detenue may not be fatal. In Dimple Happy Dhakad (supra), an incident of similar nature such case was considered by the apex court and it has been observed, having referred to the previous decision of the apex court in State of Maharashtra and others vs. Bhaurao Punjabrao Gawande, Page 13 of 17 reported in (2008) 3 SCC 613 where the apex court had occasion to observe that the framers of the constitution were conscious of the practical need of preventive detention with a view to striking a just and delicate balance between need and the necessity to preserve individual liberty and personal freedom on the one hand and security and safety of the country and interest of the society on the other hand. Mr. Bhowmik, learned Advocate General has emphasized that by putting the detention order on mechanical test/ or non supply of the material documents relied for forming the grounds of detention would not sub-serve the public interest against the dangerous activities of the detenue.
[12] Mr. H. Deb, learned Assistant Solicitor General of India appearing for the respondent No.4 has stated that copy of the detention order has been communicated to the Union of India in terms of Section 3(2) of the PITNDPS Act.
[13] Having appreciated the submissions of the learned counsel appearing for the parties and on scrutiny of the records, this court is of the view that there had been unexplained long delay in serving the detention order and no material whatsoever was supplied to the detenue within the time as prescribed by Section 3(3) of the Page 14 of 17 PITNDPS Act which has engrafted a paramateria provision of the COFEPOSA Act. Section 3(3) of the PITNDPS Act reads as follows:
(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.
[14] It is apparent on the face of the records that no document/material as relied by the detaining authority for forming the grounds of detention had been supplied to the detenue within the time frame as prescribed by Section 3(3) of PITNDPS Act. Even while responding to the representation some additional materials were relied completely in contravention of Section 3(3) of the said Act. Taking those materials as referred in the order dated 28.08.2019 in consideration, even if, that was not a representation within the meaning of Article 22(5) of the Constitution of India, was grossly illegal. There cannot be any amount of doubt that non-supply of those materials/documents has curtailed the right of the detenue as protected by Article 22(5) of the Constitution of India which enjoins upon the detaining authority obligation to afford to the detenue earliest opportunity of making a representation against the order. As consequence of non-supply the detenue could not make the Page 15 of 17 representation to the Advisory Board. Thus, the right of the detenue has been infringed for complete disregard to the obligation as created by the Article 22(5) of the Constitution of India. True it is that the order of detention is a precautionary measure and except seeking the judicial review within the short compass, when the representation fails evoke any positive yield, no remedial measure is available to the detenue. Only on the ground of constitutional infirmity such order of detention can be interfered with by this court.
[15] In State of Tamil Nadu and another vs. Abdullah Kadher Batcha and another, reported in (2009) 1 SCC 333, the apex court had occasion to observe that non supply of document can be examined by the constitutional court to find out whether non supply of document has prejudiced the detenue or the detenue is deprived of effective representation in absence of documents. But in that case also it has been observed as follows:
6. In Radhakrishnan Prabhakaran v. State of T.N. and Ors. (2000 9 SCC 170, it was observed as follows:
"8. We may make it clear that there is no legal requirement that a copy of every document mentioned in the or- der shall invariably be supplied to the detenu. What is important is that copies of only such of those documents as have been relied on by the detaining authority for reaching the satisfaction that preventive detention of the detenu is necessary shall be supplied to him. It is admit- ted by the learned counsel for the petitioner that the order granting bail has been supplied to him. Application for bail has been submitted by the detenu himself when the order of detention was passed which was subsequent to the order granting bail. We cannot comprehend Page 16 of 17 as to how a prior order rejecting bail would be of any relevance in the matter when it was later succeeded by the order granting bail. But learned counsel emphasised that the counter filed by the Department was a relevant document, a copy of which has not been supplied to him."
The view in Radhakrishan Prabhakaran's case (supra) was reiterated in J. Abdul Hakeem v. State of T.N. and Ors. (2005) 7 SCC 70 and Sunila Jain v. Union of India and Anr. (2006) 3 SCC
321.
7. The Court has a duty to see whether the non supply of any document is in any way prejudicial to the case of the detenu. The High Court has not examined as to how the non supply of the documents called for had any effect on the detenu and/or whether non supply was prejudicial to the detenu. Merely because copies of some documents have been supplied they cannot by any stretch of imagination be called as relied upon documents. While examining whether non supply of a document would prejudice a detenu the Court has to examine whether the detenu would be deprived of making an effective representation in the absence of a document. Primarily, the copies which form the ground for detention are to be supplied and non supply thereof would prejudice to the detenu. But documents which are merely referred to for the purpose of narration of facts in that sense cannot be termed to be documents without the supply of which the detenu is prejudiced.
[Emphasis added] [16] Thus, it is clear that the copies which formed the ground of detention are required to be supplied and non supply thereof would prejudice the detenue. In the case in hand, no document whatsoever which formed the ground for detention was supplied to the detenue and hence, the detenue has to be held to have been seriously prejudiced in making the effective representation in terms of Article 22(5) of the Constitution of India. Moreover, unexplained delay in effecting the order of detention has caused further prejudice to the detenue, apart from bona fide of necessity as shown in the order of detention. The plea that has been raised by Mr. Bhowmik, learned Page 17 of 17 Advocate General that unless the final order is challenged, this court cannot issue the writ of habeas corpus is totally unacceptable inasmuch as when the foundational order cannot be sustained for gross procedural infirmity, the consequential final order cannot survive. Hence, the detention of the detenue is declared grossly unconstitutional and accordingly, the order dated 26.12.2018 and the order dated 21.09.2019 are struck down. The detenue shall be released forthwith, if not wanted in any other case. [17] In the result, this petition stands allowed. However, there shall be no order as to costs.
JUDGE JUDGE Sujay