SUSHANTA KUMAR BANIK versus STATE OF TRIPURA & ORS. on 30 September 2022

SUPREME COURT REPORTS

[2022] 13 S.C.R.

ASUSHANTA KUMAR BANIK

v.

STATE OF TRIPURA & ORS.

(Criminal Appeal No. 1708 of 2022)

BSEPTEMBER 30, 2022

[UDAY UMESH LALIT, CJI, S. RAVINDRA BHAT ANDJ. B. PARDIWALA, JJ.]

Prevention of Illicit Traffic in Narcotic Drugs andPsychotropic Substances Act, 1988: s. 3(1) – Power to make ordersCdetaining certain persons – FIRs against the appellant for theoffences punishable u/ss. 22(b)/22(C)/29 and 21(B) of the NDPSAct, 1985 for illegal trafficking of the narcotic drugs and that he isa habitual offender – Detention order by the Government – Writpetition challenging the legality and validity of the detention orderD– Dismissed by the High Court – On appeal, held: There was delayin passing the order of detention from the date of proposal therebysnapping the “live and proximate link” between the prejudicialactivities and the purpose of detention and failure on the part ofthe detaining authority in explaining such delay in any manner –Such delay unless satisfactorily explained throws a considerableEdoubt on the genuineness of the requisite subjective satisfaction ofthe detaining authority in passing the detention order andconsequently render the detention order bad and invalid –Furthermore, the vital fact that the appellant detenu had beenreleased on bail despite the rigours of s. 37 of the NDPS Act, wasFnot brought to the notice and was withheld and the detainingauthority was given to understand that the trial of those criminalcases was pending – Subjective satisfaction, formation of which isa condition precedent to passing of a detention order, gets vitiatedif material or vital facts which would have bearing on the issue andweighed the satisfaction of the detaining authority one way or theGother and influence his mind are either withheld or suppressed bythe sponsoring authority or ignored and not considered by thedetaining authority before issuing the detention order – Thus, theorder of detention is quashed and set aside – Narcotic Drugs andPsychotropic Substances Act, 1985.H

Allowing the appeal, the Court

HELD: 1.1 The proposal to take steps to preventivelydetain the appellant at the end of the Superintendent of Policeaddressed to the Superintendent of Police (C/S) West Tripura,Agartala is dated 28th of June 2021. The proposal in turnforwarded by the Assistant Inspector General of Police (Crime)on behalf of the Director General to the Secretary, HomeDepartment is dated 14.07.2021. The order of detention is dated12th of November, 2021. There is no explanation worth the namewhy it took almost five months for the detaining authority to passthe order of preventive detention. [Para 12][495-D-E]

1.2 The underlying principle is that if there is unreasonabledelay between the date of the order of detention and actual arrestof the detenu and in the same manner from the date of the proposaland passing of the order of detention, such delay unlesssatisfactorily explained throws a considerable doubt on thegenuineness of the requisite subjective satisfaction of thedetaining authority in passing the detention order andconsequently render the detention order bad and invalid becausethe “live and proximate link” between the grounds of detentionand the purpose of detention is snapped in arresting the detenu.A question whether the delay is unreasonable and standsunexplained depends on the facts and circumstances of each case.[Para 20][498-D-F]

1.3 In the instant case, the circumstances indicate that thedetaining authority after the receipt of the proposal from thesponsoring authority was indifferent in passing the order ofdetention with greater promptitude. The “live and proximatelink” between the grounds of detention and the purpose ofdetention stood snapped in arresting the detenu. More importantlythe delay has not been explained in any manner and though thispoint of delay was specifically raised and argued before the HighCourt as evident from the impugned judgment yet the High Courthas not recorded any finding on the same. [Para 21][498-G-H]

2.1 In both the cases relied upon by the detaining authorityfor the purpose of preventively detaining the appellant, the AB

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Aappellant was already ordered to be released on bail by theconcerned Special Court. Indisputably, there is no reference ofthis fact in the proposal forwarded by the Superintendent of Police,West Tripura District while requesting to process the order ofdetention. The reason for laying much stress on this aspect ofthe matter is the fact that the appellant though arrested inBconnection with the offence under the NDPS Act, 1985, theSpecial Court, Tripura thought fit to release the appellant on baildespite the rigours of Section 37 of the NDPS Act, 1985. [Para22][499-B-C]

2.2 A plain reading of Section 37 of the NDPS Act wouldCindicate that the accused arrested under the NDPS Act, 1985 canbe ordered to be released on bail only if the Court is satisfiedthat there are reasonable grounds for believing that the accusedis not guilty of such offence and that he is not likely to commitany offence while on bail. If the appellant was ordered to beDreleased on bail despite the rigours of Section 37 of the NDPSAct, 1985, then the same is suggestive that the Court concernedmight not have found any prima facie case against him. Had thisfact been brought to the notice of the detaining authority, then itwould have influenced the mind of the detaining authority oneway or the other on the question whether or not to make an orderEof detention. The State never thought to even challenge the bailorders passed by the special court releasing the appellant onbail. [Para 23][499-H; 500-A-C]

2.3 The requisite subjective satisfaction, the formation ofwhich is a condition precedent to passing of a detention orderFwill get vitiated if material or vital facts which would have bearingon the issue and weighed the satisfaction of the detaining authorityone way or the other and influence his mind are either withheldor suppressed by the sponsoring authority or ignored and notconsidered by the detaining authority before issuing the detentionGorder. [Para 26][500-H; 501-A-B]

2.4 In the instant case, at the time when the detainingauthority passed the detention order, this vital fact, namely, thatthe appellant detenu had been released on bail by the SpecialCourt, Tripura despite the rigours of Section 37 of the NDPSHAct, 1985, had not been brought to the notice and on the other A

hand, this fact was withheld and the detaining authority was givento understand that the trial of those criminal cases was pending.[Para 27][501-B-C]

3.1 The preventive detention is a serious invasion ofpersonal liberty and the normal methods open to a person chargedwith commission of any offence to disprove the charge or to provehis innocence at the trial are not available to the personpreventively detained and, therefore, in prevention detentionjurisprudence whatever little safeguards the Constitution and theenactments authorizing such detention provide assume utmostimportance and must be strictly adhered to. [Para 28][501-D]

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3.2 The impugned judgment and order passed by the HighCourt is set aside. The order of preventive detention passed bythe 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 SCR593; Suresh Mahato v. The District MagistratemBurdwan, and Ors. (1975) 3 SCC 554; SK. Serajul v.State of West Bengal (1975) 2 SCC 78; BhawarlalGaneshmalji v. State of Tamil Nadu (1979) 1 SCC 465: [1979] 2 SCR 633; Shafiq Ahmed v. DistrictMagistrate, Meerut and Ors. (1989) 4 SCC 556 : [1989]1 Suppl. SCR 56; Asha Devi v. Additional ChiefSecretary to the Government of Gujarat and Anr., 1979Crl LJ 203.

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1708 of 2022.

AFrom the Judgment and Order dated 01.06.2022 of the High Courtof Tripura at Agartala in WP (C) (HC) No.06 of 2021.

Ms. Madhumita Bhattacharjee, Srija Choudhury, Anant, Advs. forthe Appellant.

K. M. Nataraj, ASG, Nachiketa Joshi, Ms. Himadri Haksav, Ms.BSucheta Joshi, Akshay Amritanshu, Shailesh Madiyal, Ms. Bani Dikshit,Sudarshan K., Nakul Chengappa K. K., Mukesh Kumar Maroria, Advs.for the Respondents.

The Judgment of the Court was delivered by CJ. B. PARDIWALA, J.

1. Leave granted.

2. This appeal is at the instance of a detenu detained under Section3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and PsychotropicSubstances Act, 1988 (for short, ‘PIT NDPS Act’) and is directed againstDthe judgment and order passed by the High Court of Tripura at Agartaladated 01.06.2022 in Writ Petition (Civil) No. 6 of 2021 by which theHigh Court rejected the writ application filed by the appellant hereinquestioning the legality and validity of the detention order passed by theGovernment of Tripura dated 12.11.2021 and thereby affirming the orderof detention.E

3. It all started with a proposal dated 28[th] of June, 2021 submittedby the Superintendent of Police, West Tripura District, Sub-DivisionalPolice Officer, Amtali, West Tripura to the Superintendent of Police (C/S), West Tripura, Agartala with a request to move the appropriate authorityfor passing an appropriate order of detention under the provisions of theFPIT NDPS Act.

4. The proposal reads thus:-

“GOVERNMENT OF TRIPURA

OFFICE OF THE SUB DIVISIONAL POLICE OFFICER

WEST TRIPURA, AGARTALA

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No. 1445/SDPO(AMT)/21

To Dated, 28[th] June, 2021

The Superintendent of Police (C/S),West Tripura, Agartala.

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Subject:Proposal for Preventive Detention order of accusedSusanta Kumar Banik, S/o. Lt. Shanti Ch. Banik of Siddhiashram,Badharghat, Kalimata Sangha, near Railway Station, PS Amtali,West Tripura U/-3 of PIT NDPS Act, 1988.

Sir,

With reference to the subject cited above, it is to informthat I am submitting a proposal for issuance of preventive detentionorder against the accused Susanta Kumar Banik, S/o. Lt. ShantiCh. Banik of Siddhiashram, Badharghat, Kalimata Sangha, nearRailway Station, PS-Amtali, West Tripura U/-3 of PIT NDPSAct, 1988.

Ongoing through the proposal and the relevant recordscollected from various sources, the following grounds have beenfound for detention of Susanta Kumar Banik, S/o. Lt. Shanti Ch.Banik of Siddhiashram, Badharghat, Kalimata Sangha, nearRailway Station, PS-Amtali, West Tripura U/-3 of PIT NDPSAct, 1988.

1. Sri Susanta Kumar Banik, S/o. Lt. Shanti Ch. Banik ofSiddhiashram, Badharghat, Kalimata Sangha, near Railway Station,PS-Amtali, West Tripura was charge sheeted in Amtali PS CaseNo. 2019/AMT/208 dated 05/11/2019 U/S 22(b)/22(C)/29 ofNDPS Act, 1985 which was registered following seizure of 92gm brown sugar (Heroin) & 7600 nos yaba tablets. Investigationof the case has revealed that he is involved in running of illegalbusiness of narcotic drugs throughout the State and outside theState. The subject was arrested on 05/11/2019 and forwarded tothe Ld. Court. He has already been charge sheeted in this casevide Amtali PS C/S No. 11/20 dated 09/02/2020 (Copy of FIR,seizure list, inventory, arrest memo, SFSL report, statement ofwitnesses are enclosed).

2. Sri Susanta Kumar Banik, S/o. Lt. Shanti Ch. Banik ofSiddhiashram, Badharghat, Kalimata Sangha, near Railway Station,PS-Amtali, West Tripura again got involved in East Agartala PSCase No. 2021 EAG 052 dated 25/04/2021 U/S-21(B)/29 of NDPSAct wherein on 25/04/2021 the said Susanta Kumar Banik S/oLt. Santi Ch. Banik was again caught red handed while dealingwith NDPS substance near Badharghat Railway Station. One A

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Apouch filled with suspected heroin was recovered from hispossession along with cash Rs.20,400/- & a android mobile. Ithas made very much clear that the said Sushanta Kumar Banik isa habitual drug dealer and sells drug to youths hence running thelives of young fellows as well as the entire society as a whole.The investigation of the above referred case is under progressBand the said Susanta Kumar Banik is learned to be in JudicialCustody.

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In view of the above it can be stated that Sri Susanta KumarBanik is a kingpin in illegal trafficking of narcotic drugs inside thestate as well as outside the state. He did not stop his illegal activitiesCof narcotics drugs and psychotropic substances even after hisarrest in previous case vide Amtali PS Case No. 208/19 and EastAgartala PS Case No. 52/2021. It shows his determination is tocontinue his illegal NDPS business. It is further mentioned thatillicit trafficking in narcotic drugs and psychotropic substancesDcaused a serious threat to the health and welfare of the peopleand to protect the society from this menace it is required to takestern action against the subject.

The appropriate authority may please be moved to issuedetention order against Susanta Kumar Banik, S/o. Lt. Shanti Ch.EBanik of Siddhiashram, Badharghat, Kalimata Sangha, nearRailway Station, PS-Amtali, West Tripura U/s-3 of PIT NDPSAct, 1988 to prevent him from engaging in illicit trafficking ofnarcotic drugs and psychotropic substances further.

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Superintendent of Police, West Tripura District, Sub-Divisional Police Officer Amtali, West Tripura.”

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5. The Secretary (Home Department), Government of Tripuraacting on the proposal dated 14.07.2021 forwarded by the DirectorGeneral of Police proceeded to pass the detention order dated 12.11.2021which reads thus:

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“No. F. 15(9)- PD/2021(III)GOVERNMENT OF TRIPURAHOME DEPARTMENT

12[th] November, 2021

O R D E R

Whereas, the Director General of Police has sent aproposal for detention of Shri Sushanta Kumar Banik, S/o. Lt.Shanti Ch. Banik of Siddhiashram, Badharghat, Kalimata Sangha,near Agartala Railway Station, PS-Amtali, West Tripura underPITNPS Act, 1988 along with records under Section 3(1) of thePrevention of Illicit traffic in Narcotic Drugs and PsychotropicSubstances Act, 1988.

AND

Whereas, on perusal of records as submitted by the DirectorGeneral of Police, Tripura, it appears that Shri Sushanta KumarBanik, S/o. Late Shanti Ch. Banik of Siddhiashram, Badharghat,Kalimata Sangha, near Agartala Railway Station, PS-Amtali, WestTripura under PITNPS Act. 1988 was involved in the followingcases :-

(i) Amtali PS Case No. 2019/AMT/208 dated 05.11.201922(b)/22(C)/29 of NDPS Act, 1985.

(ii) East Agartala PS Case No. 2021 EAG 052 dated 25.04.2021U/S 21(B)/29 of NDPS Act.

AND

Whereas, he has association with the smugglers of NDPSarticles and illicit drug traffickers in connection with Amtali PSCase No. 2019/AMT/208 dated 05/ 11/2019 U/S 22(b)/22(C)/29of NDPS Act, 1985 and East Agartala PS Case No. 2021 EAG052 dated 25/04/2021 U/S - 21(B)/29 of NDPS Act.

AND

Whereas, the person is still active in illicit trafficking ofNDPS articles revealed from field information but could not bearrested red-handed again and issue of detention order underPITNDPS will also help Police in initiating financial investigationlaid down under Chapter-V(A) of NDPS Act.

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AND

Whereas, Shri Sushanta Kumar Banik, S/o. Late ShantiCh. Banik of Siddhiashram, Badharghat, Kalimata Sangha, nearAgartala Railway Station, PS-Amtali, West Tripura was chargesheeted in Amtali PS Case No. 2019/AMT/208 dated 05.11.2019U/S 22(b)/22(C)/29 of NDPS Act, 1985 which was registeredfollowing seizure of 92 gm brown sugar (Heroin) and 7600 nosyaba tablets. Investigation of the case has revealed that he isinvolved in running in illegal business of narcotics drugs throughoutthe State and outside the State.

AND

Whereas, he is a kingpin in illegal trafficking of narcoticdrugs inside the State as well as outside the State. He did not stophis illegal activities of narcotics drugs and psychotropic substanceseven after his arrest in previous case vide Amtali PS Case No.208/19 and East Agartala PS Case No. 52/2021. It shows hisdetermination is to continue his illegal NDPS business. Illicittrafficking in narcotic drugs and psychotropic substances causeda serious threat to the health and welfare of the people and toprotect the society from this menace it is required to take sternaction against the person.

AND

Whereas, Director General of Police, Tripura has proposedto prevent Shri Sushanta Kumar Banik, S/o. Late Shanti Ch. Banikof Siddhiashram, Badharghat, Kalimata Sangha, near AgartalaRailway Station, PS-Amtali, West Tripura from continuing hisharmful and prejudicial activity by engaging in illicit traffic ofnarcotic drugs and psychotropic substances in the interest ofsociety.

AND

Now, therefore, the undersigned, being the speciallyempowered officer of the State Government in exercise of powersconferred by sub-section (1) of section (3) of the Prevention ofIllicit Traffic in Narcotic Drugs and Psychotropic Substances Act,1988 and careful examination of the proposal of the DirectorGeneral of Police, Tripura and other supporting documents, found sufficient grounds for detention of Shri Sushanta Kumar Banikand being satisfied that with a view to preventing him from engagingin illicit traffic in NDPS, it is necessary to detain him and accordinglyit is directed for detention of Shri Sushanta Kumar Banik S/o.Late Shanti Ch. Banik of Siddhiashram, Badharghat. KalimataSangha, near Agartala Railway Station, PS-Amtali, West Tripura.

It is mentioned that the accused Shri Sushanta Kumar BanikS/o. Late Shanti Ch. Banik of Siddhiashram, Badharghat, KalimataSangha, near Agartala Railway Station, PS-Amtali, West Tripuramay submit his representation to the Central/State Governmentagainst this order of detention. Such representation may besubmitted to the undersigned for onward transmission to theCentral/State Government. The accused is to be informed that hewill get all reasonable opportunity for making representation againstthis order to the Central/State Government, he may therefore stateto the undersigned what opportunity he needed for this purpose.The accused is to be appraised of his right to make representationbefore the undersigned against this detention order. The accusedis to be informed that he also has a right to be heard before theAdvisory Board.

The concerned Superintendent of Central Jail/District Jail/Sub-Jail is requested to depute a responsible officer at the time ofeffecting detention order to the addressee who will explain indetails the contents of this order along with grounds of detention.Even assistance of another Government official or any other personmay be taken to brief him about the order etc. in the languagewhich the said accused person understands in presence of twowitness on receipt signature or thumb impression in token fromthe accused.

The concerned Superintendent of Central Jail/District Jail/Sub-Jail is directed to extend all assistance to the accused in makingrepresentation to the concerned authority. The assistance providedby the Superintendent of Central Jail/District Jail/Sub-Jail mayinclude stationary and any other items as desired by the accused.The Superintendent of Central Jail/District Jail/Sub-Jail will alsoprovide a literate person who shall assist the accused, if he is notliterate, in drafting the representation to the Central/StateGovernment.

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Sd/- 12.11.2021

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(A. Roy)Secretary to the

Government of Tripura”

6. Thus, from the aforesaid, it appears that the order of preventiveBdetention came to be passed essentially on the ground that in the pasttwo First Information Reports (FIR) were registered against the appellantherein for the offences punishable under Sections 22(b)/22(C)/29 and21(B) resply of the Narcotic Drugs and Psychotropic Substances Act,1985 (for short, ‘NDPS Act, 1985’) and is a habitual offender. The firstFIR is dated 05.11.2019 and the second FIR is dated 25.04.2021. At theCend of the investigation of the FIR dated 05.11.2019, the charge sheetcame to be filed and the trial is pending as on date. The investigation sofar as the FIR dated 25.04.2021 is concerned, the same is shown tohave been pending on the date of the proposal. However, what isimportant to note is that in both the aforesaid cases registered under theDNDPS Act, 1985, the appellant herein was ordered to be released onbail by the Special Court, Tripura.

7. The appellant questioned the legality and validity of the detentionorder by filing the Writ Petition (Civil) No. 6 of 2021 in the High Court ofTripura at Agartala. The High Court vide the impugned judgment andEorder dated 01.06.2022 rejected the writ application thereby affirmingthe order of preventive detention.

8. In such circumstances referred to above, the appellant (detenu)is before this Court with the present appeal.

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9. We have heard Ms. Madhumita Bhattacharjee, the learnedcounsel appearing for the appellant detenu and Mr. Nachiketa Joshi, thelearned counsel appearing for the State of Tripura.

10. Manifold contentions have been raised by the learned counselappearing on both the side.G

11. We are persuaded to allow this appeal on the following twogrounds:

(i) Delay in passing the order of detention from the date of proposalthereby snapping the “live and proximate link” between theHprejudicial activities and the purpose of detention & failure on the part of the detaining authority in explaining such delay in anymanner.

(ii) The detaining authority remained oblivious of the fact that inboth the criminal cases relied upon by the detaining authority forthe purpose of passing the order of detention, the appellant detenuwas ordered to be released on bail by the special court. Thedetaining authority remained oblivious as this material and vitalfact of the appellant detenu being released on bail in both thecases was suppressed or rather not brought to the notice of thedetaining authority by the sponsoring authority at the time offorwarding the proposal to pass the appropriate order of preventivedetention.

DELAY IN PASSING THE ORDER OF DETENTION

12. We may recapitulate the necessary facts which have a bearingso far as the issue of delay is concerned. The proposal to take steps topreventively detain the appellant at the end of the Superintendent ofPolice addressed to the Superintendent of Police (C/S) West Tripura,Agartala is dated 28[th] of June 2021. The proposal in turn forwarded bythe Assistant Inspector General of Police (Crime) on behalf of the DirectorGeneral to the Secretary, Home Department is dated 14.07.2021. Theorder of detention is dated 12[th] of November, 2021. There is no explanationworth the name why it took almost five months for the detaining authorityto pass the order of preventive detention.

13. There is indeed a plethora of authorities explaining the purposeand the avowed object of preventive detention in express and explicitlanguage. We think that all those decisions of this Court on this aspectneed not be recapitulated and recited. But it would suffice to refer to thedecision of this Court in Ashok Kumar v. Delhi Administration andOrs., (1982) 2 SCC 403, wherein the following observation is made:

“Preventive detention is devised to afford protection to society.The object is not to punish a man for having done somethingbut to intercept before he does it and to prevent him fromdoing.”

14. In view of the above object of the preventive detention, itbecomes very imperative on the part of the detaining authority as wellas the executing authorities to remain vigilant and keep their eyes skinned A

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Abut not to turn a blind eye in passing the detention order at the earliestfrom the date of the proposal and executing the detention order becauseany indifferent attitude on the part of the detaining authority or executingauthority would defeat the very purpose of the preventive action andturn the detention order as a dead letter and frustrate the entireproceedings.B

15. The adverse effect of delay in arresting a detenu has beenexamined by this Court in a series of decisions and this Court has laiddown the rule in clear terms that an unreasonable and unexplained delayin securing a detenu and detaining him vitiates the detention order. In thedecisions we shall refer hereinafter, there was a delay in arresting theCdetenu after the date of passing of the order of detention. However, the same principles would apply even in the case of delay in passing theorder of detention from the date of the proposal. The common underlyingprinciple in both situations would be the “live & proximate link” betweenthe grounds of detention & the avowed purpose of detention.

D16. In Sk. Nizamuddin v. State of West Bengal, (1975) 3 SCC395, this Court while examining the necessity of securing the arrest ofthe detenu immediately after the order of detention has held thus:

“It would be reasonable to assume that if the DistrictMagistrate was really and genuinely satisfied after properEapplication of mind to the materials before him that it wasnecessary to detain the petitioner with a view to preventinghim from acting in a prejudicial manner, he would have actedwith greater promptitude in securing the arrest of thepetitioner immediately after the making of the order ofFdetention, and the petitioner would not have been allowed toremain at large for such a long period of time to carry on hisnefarious activities. Of course when we say this we must notbe understood to mean that whenever there is delay in arrestingthe detenu pursuant to the order of detention, the subjectivesatisfaction of the detaining authority must be held to be notGgenuine or colourable. Each case must depend on its ownpeculiar facts and circumstances. The detaining authority mayhave a reasonable explanation for the delay and that mightbe sufficient to dispel the inference that its satisfaction wasnot genuine.”

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Having held as above, Bhagwati, J. (as the learned Chief Justicethen was) pointed out that if there is any delay in arresting the detenupursuant to the order of detention which is prima-facie unreasonable,the State must give reasons explaining the delay.

17. A similar contention was raised in Suresh Mahato v. TheDistrict Magistrate, Burdwan, and Ors., (1975) 3 SCC 554, on thebasis of the dictum laid down in two decisions of this Court, namely, SK.Serajul v. State of West Bengal, (1975) 2 SCC 78, and Sk.Nizamuddin(supra) contending that the delay of the arrest of the detenuin that case showed that the detaining authority was not really andgenuinely satisfied as regards the necessity for detention of the detenufor otherwise he would have tried to secure the arrest of the detenupromptly and not left him free to carry on his nefarious activities.Bhagwati, J. (as the learned Chief Justice then was) while dealing withthis submission, made the following observation:

“Now, there can be no doubt—and the law on this point mustbe regarded as well settled by these two decisions—that ifthere is unreasonable delay between the date of the order ofdetention and the date of arrest of the detenu, such delay,unless satisfactorily explained, would throw considerabledoubt on the genuineness of the subjective satisfaction of theDistrict Magistrate and it would be a legitimate inference todraw that the District Magistrate was not really and genuinelysatisfied as regards the necessity for detaining the petitioner.”

18. Chinnappa Reddy, J. speaking for the Bench in BhawarlalGaneshmalji v. State of Tamil Nadu, (1979) 1 SCC 465, has explainedas follow:

“It is further true that there must be a “live and proximatelink” between the grounds of detention alleged by the detainingauthority and the avowed purpose of detention namely theprevention of smuggling activities. We may in appropriatecases assume that the link is “snapped” if there is a long andunexplained delay between the date of the order of detentionand the arrest of the detenu. In such a case, we may strikedown an order of detention unless the grounds indicate afresh application of the mind of the detaining authority to thenew situation and the changed circumstances. But where the A

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Adelay is not only adequately explained but is found to be theresult of the recalcitrant or refractory conduct of the detenuin evading arrest, there is warrant to consider the “link” notsnapped but strengthened.”

(Emphasis supplied)

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19. Sabyasachi Mukharji, J. (as the learned Chief Justice thenwas) in Shafiq Ahmed v. District Magistrate, Meerut and Ors., (1989)4 SCC 556, having regard to the fact that there was a delay of two anda half months in detaining the petitioner (detenu) therein, pursuant to theorder of detention has concluded that “there was undue delay, delayCnot commensurate with the facts situation in that case and theconduct of the respondent authorities betrayed that there was noreal and genuine apprehension that the detenu was likely to act inany manner prejudicial to public order. The order, therefore is badand must go”. However, the learned Judge observed that “whetherthe delay was unreasonable depends on the facts and circumstancesDof each case.”

20. It is manifestly clear from a conspectus of the above decisionsof this Court, that the underlying principle is that if there is unreasonabledelay between the date of the order of detention & actual arrest of thedetenu and in the same manner from the date of the proposal and passingEof the order of detention, such delay unless satisfactorily explained throwsa considerable doubt on the genuineness of the requisite subjectivesatisfaction of the detaining authority in passing the detention order andconsequently render the detention order bad and invalid because the“live and proximate link” between the grounds of detention and theFpurpose of detention is snapped in arresting the detenu. A question whetherthe delay is unreasonable and stands unexplained depends on the factsand circumstances of each case.

21. In the present case, the circumstances indicate that the detainingauthority after the receipt of the proposal from the sponsoring authorityGwas indifferent in passing the order of detention with greater promptitude.The “live and proximate link” between the grounds of detention and thepurpose of detention stood snapped in arresting the detenu. Moreimportantly the delay has not been explained in any manner & thoughthis point of delay was specifically raised & argued before the HighCourt as evident from Para 14 of the impugned judgment yet the HighHCourt has not recorded any finding on the same.

VITAL MATERIAL OR VITAL FACT WITHHELD ANDNOT PLACED BY THE SPONSORING AUTHORITY BEFORETHE DETAINING AUTHORITY

22. As noted above, in the case on hand, in both the cases reliedupon by the detaining authority for the purpose of preventively detainingthe appellant herein, the appellant was already ordered to be released onbail by the concerned Special Court. Indisputably, we do not find anyreference of this fact in the proposal forwarded by the Superintendentof Police, West Tripura District while requesting to process the order ofdetention. The reason for laying much stress on this aspect of the matteris the fact that the appellant though arrested in connection with theoffence under the NDPS Act, 1985, the Special Court, Tripura thoughtfit to release the appellant on bail despite the rigours of Section 37 of theNDPS Act, 1985. Section 37 of the NDPS Act, 1985 reads thus:

“Section 37. Offences to be cognizable and non-bailable.—(1)Notwithstanding anything contained in the Code ofCriminal Procedure, 1973 (2 of 1974)—

(a) every offence punishable under this Act shall becognizable; (b) no person accused of an offence punishable foroffences under section 19 or section 24 or section 27Aand also for offences involving commercial quantity shallbe released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity tooppose the application for such release, and

(ii) where the Public Prosecutor opposes the application,the court is satisfied that there are reasonable grounds forbelieving that he is not guilty of such offence and that heis not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b)of sub-section (1) are in addition to the limitations under theCode of Criminal Procedure, 1973 (2 of 1974) or any otherlaw for the time being in force, on granting of bail.”

23. A plain reading of the aforesaid provision would indicate thatthe accused arrested under the NDPS Act, 1985 can be ordered to bereleased on bail only if the Court is satisfied that there are reasonable A

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Agrounds for believing that the accused is not guilty of such offence andthat he is not likely to commit any offence while on bail. If the appellantherein was ordered to be released on bail despite the rigours of Section37 of the NDPS Act, 1985, then the same is suggestive that the Courtconcerned might not have found any prima facie case against him. Hadthis fact been brought to the notice of the detaining authority, then itBwould have influenced the mind of the detaining authority one way orthe 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 thespecial court releasing the appellant on bail.

24. In Asha Devi v. Additional Chief Secretary to theCGovernment of Gujarat and Anr., 1979 Crl LJ 203, this Court pointed out that:

“… if material or vital facts which would influence the mindsof the detaining authority one way or the other on the questionwhether or not to make the detention order, are not placedDbefore or are not considered by the detaining authority it wouldvitiate its subjective satisfaction rendering the detention orderillegal.”

25. In Sk. Nizamuddin (supra) this Court observed as under:

E“We should have thought that the fact that a criminal case ispending against the person who is sought to be proceededagainst by way of preventive detention is a very materialcircumstance which ought to be placed before the DistrictMagistrate. The circumstance might quite possible have animpact on his decision whether or not to make an order ofFdetention. It is not altogether unlikely that the DistrictMagistrate may in a given case take the view that since acriminal case is pending against the person sought to bedetained, no order of detention should be made for the present,but the criminal case should be allowed to run its full courseGand only if it fails to result in conviction, then preventivedetention should be resorted to. It would be most unfair tothe person sought to be detained not to disclose the pendencyof a criminal case against him to the District Magistrate.”

26. From the above decisions, it emerges that the requisitesubjective satisfaction, the formation of which is a condition precedentH

to passing of a detention order will get vitiated if material or vital factswhich would have bearing on the issue and weighed the satisfaction ofthe detaining authority one way or the other and influence his mind areeither withheld or suppressed by the sponsoring authority or ignored andnot considered by the detaining authority before issuing the detentionorder.

27. It is clear to our mind that in the case on hand at the timewhen the detaining authority passed the detention order, this vital fact,namely, that the appellant detenu had been released on bail by the SpecialCourt, 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 waswithheld and the detaining authority was given to understand that thetrial of those criminal cases was pending.

28. The preventive detention is a serious invasion of personal libertyand the normal methods open to a person charged with commission ofany offence to disprove the charge or to prove his innocence at the trialare not available to the person preventively detained and, therefore, inprevention detention jurisprudence whatever little safeguards theConstitution and the enactments authorizing such detention provide assumeutmost importance and must be strictly adhered to.

29. In view of the aforesaid discussion, this appeal succeeds andis hereby allowed. The impugned judgment and order passed by theHigh Court of Tripura is set aside. The order of preventive detentionpassed by the State of Tripura dated 12.11.2021 is hereby quashed andset aside. The appellant herein is ordered to be released forthwith fromcustody if not required in any other case.

30. Pending application, if any, also stands disposed of.

Nidhi Jain

Appeal allowed.

(Assisted by : Shashwat Jain, LCRA)

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