Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988: s. 3(1) – Power to make orders detaining certain persons – FIRs against the appellant for the offences punishable u/ss. 22(b)/22(C)/29 and 21(B) of the NDPS Act, 1985 for illegal trafficking of the narcotic drugs and that he is a habitual offender – Detention order by the Government – Writ petition challenging the legality and validity of the detention order – Dismissed by the High Court – On appeal, held: There was delay in passing the order of detention from the date of proposal thereby snapping the “live and proximate link” between the prejudicial activities and the purpose of detention and failure on the part of the detaining authority in explaining such delay in any manner – 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 – Furthermore, the vital fact that the appellant detenu had been released on bail despite the rigours of s. 37 of the NDPS Act, was not brought to the notice and was withheld and the detaining authority was given to understand that the trial of those criminal cases was pending – Subjective satisfaction, formation of which is a condition precedent to passing of a detention order, gets vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influence his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order – Thus, the order of detention is quashed and set aside – Narcotic Drugs and Psychotropic Substances Act, 1985.
Allowing the appeal, the Court
HELD: 1.1 The proposal to take steps to preventively detain the appellant at the end of the Superintendent of Police addressed to the Superintendent of Police (C/S) West Tripura, Agartala is dated 28th of June 2021. The proposal in turn forwarded by the Assistant Inspector General of Police (Crime) on behalf of the Director General to the Secretary, Home Department is dated 14.07.2021. The order of detention is dated 12th of November, 2021. There is no explanation worth the name why it took almost five months for the detaining authority to pass the order of preventive detention. [Para 12][495-D-E]
1.2 The underlying principle is that if there is unreasonable delay between the date of the order of detention and actual arrest of the detenu and in the same manner from 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 the “live and proximate link” between the grounds of detention and the purpose of detention is snapped in arresting the detenu. A question whether the delay is unreasonable and stands unexplained depends on the facts and circumstances of each case. [Para 20][498-D-F]
1.3 In the instant case, the circumstances indicate 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. The “live and proximate link” between the grounds of detention and the purpose of detention stood snapped in arresting the detenu. More importantly the delay has not been explained in any manner and though this point of delay was specifically raised and argued before the High Court as evident from the impugned judgment yet the High Court has not recorded any finding on the same. [Para 21][498-G-H]
2.1 In both the cases relied upon by the detaining authority for the purpose of preventively detaining the appellant, the appellant was already ordered to be released on bail by the concerned Special Court. Indisputably, there is no reference of this fact in the proposal forwarded by the Superintendent of Police, West Tripura District while requesting to process the order of detention. The reason for laying much stress on this aspect of the matter is the fact that the appellant though arrested in connection with the offence under the NDPS Act, 1985, the Special Court, Tripura thought fit to release the appellant on bail despite the rigours of Section 37 of the NDPS Act, 1985. [Para 22][499-B-C]
2.2 A plain reading of Section 37 of the NDPS Act would indicate that the accused arrested under the NDPS Act, 1985 can be ordered to be released on bail only if the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. If the appellant was ordered to be released on bail despite the rigours of Section 37 of the NDPS Act, 1985, then the same is suggestive that the Court concerned might not have found any prima facie case against him. Had this fact been brought to the notice of the detaining authority, then it would have influenced the mind of the detaining authority one way or the other on the question whether or not to make an order of detention. The State never thought to even challenge the bail orders passed by the special court releasing the appellant on bail. [Para 23][499-H; 500-A-C]
2.3 The requisite subjective satisfaction, the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influence his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. [Para 26][500-H; 501-A-B]
2.4 In the instant case, at the time when the detaining authority passed the detention order, this vital fact, namely, that the appellant detenu had been released on bail by the Special Court, Tripura despite the rigours of Section 37 of the NDPS Act, 1985, had not been brought to the notice and on the other hand, this fact was withheld and the detaining authority was given to understand that the trial of those criminal cases was pending. [Para 27][501-B-C]
3.1 The preventive detention is a serious invasion of personal liberty and the normal methods open to a person charged with commission of any offence to disprove the charge or to prove his innocence at the trial are not available to the person preventively detained and, therefore, in prevention detention jurisprudence whatever little safeguards the Constitution and the enactments authorizing such detention provide assume utmost importance and must be strictly adhered to. [Para 28][501-D]
3.2 The impugned judgment and order passed by the High Court is set aside. The order of preventive detention passed by the State of Tripura is quashed and set aside. [Para 29][501-E] Ashok Kumar v. Delhi Administration and Ors. (1982)
2 SCC 403 : [1982] 3 SCR 707; SL. Nizamuddin v. State of West Bengal (1975) 3 SCC 395 : [1975] 2 SCR 593; Suresh Mahato v. The District Magistratem Burdwan, and Ors. (1975) 3 SCC 554; SK. Serajul v. State of West Bengal (1975) 2 SCC 78; Bhawarlal Ganeshmalji v. State of Tamil Nadu (1979) 1 SCC 465 : [1979] 2 SCR 633; Shafiq Ahmed v. District
Magistrate, Meerut and Ors. (1989) 4 SCC 556 : [1989]
1 Suppl. SCR 56; Asha Devi v. Additional Chief Secretary to the Government of Gujarat and Anr., 1979 Crl LJ 203.
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