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2022 DIGILAW 273 (TRI)

Kalam Miah v. Chairman, Advisory Board

2022-06-22

INDRAJIT MAHANTY, S.G.CHATTOPADHYAY

body2022
JUDGMENT S.G. Chattopadhyay, J. - The Petitioner has been detained under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 ('PIT NDPS Act' in short) by the order dated 09.09.2021 under No.F.15(9)-PD/ 2021(P-VII)/2545 on the purported grounds of nefarious activities in trafficking of NDPS and forming illegal business ring for proliferation of such activities. By means of such purported business which is grossly illegal, petitioner is stated to have enmassed huge properties. It would appear from the record that the detention order dated 09.09.2021 had been served on the petitioner on 24.09.2021. Involvement of the petitioner in Dharmanagar P.S. case No. 2018 DMN191 dated 16.12.2018 registered under Sections 20(ii)(c) and 29 of the NDPS Act and the report of the Director General of Police proposing preventive detention of the petitioner were mainly considered by the detaining authority for forming the opinion for detention. Pursuant to the impugned detention order, petitioner Kalam Miah alias Kala has been undergoing preventive detention w.e.f 24.09.2021. 2. As stated, the detention order was issued on 09.09.2021 by the Secretary to the Government of Tripura in the Home Department which was served on the detenue on 24.09.2021 and he was detained on the same day i.e. 24.09.2021. Grounds of his detention are stated to be as under: 'Grounds for detention Kalam Miah S/O Sona Miah of Jalabazar, Yakubnagar, PS- Dharmanagar, North Tripura' Following are the grounds for detention Kalam Miah S/O Sona Miah of Jalabazar, Yakubnagar, PS- Dharmanagar, North Tripura under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act,1988. [1] As per report of Director General of Police, Tripura, the aforesaid Kalam Miah S/O Sona Miah of Jalabazar ,Yakubnagar, P.S -Dharmanagar, North Tripura was involved in the following cases:- (i) Dharmanagar PS Case No.2018DMN191 dated 16.12.2018 u/s 20(ii)(c)/29 of NDPS Act. [2] Kalam Miah S/O Sona Miah of Jalabazar, Yakubnagar, PS- Dharmanagar, North Tripura has association with the smugglers of NDPS articles and illicit drug traffickers in connection with Dharmanagar PS Case No.2018DMN191 dated 16.12.2018 u/s 20(ii)(c)/29 of NDPS Act. [3] He is a habitual offender and is continuously involved in illegal business of NDPS especially in Dharmanagar Sub-Divisional area and also actively transporting contraband items. [3] He is a habitual offender and is continuously involved in illegal business of NDPS especially in Dharmanagar Sub-Divisional area and also actively transporting contraband items. As a result of his illegal activities there is a serious threat to the health and welfare of the people of Dharmanagar Sub-Divisional area specially the youths in particular. Kalam Miah is a dreaded and hard-core criminal and despite being arrested for the similar and other crimes on several occasions, he has not restrained himself from illegal trade of NDPS. Such kind of criminals are dangerous and detrimental for the society where several youths are falling prey to drug addiction without being aware of the evil consequences. If this type of clandestine but organized illegal business is carried on by Kalam Miah in this part of the State, there is very possibility of further deleterious effect to the youths group in adjoining area and the whole state in general to in a large magnitude. Drug addiction is a menace which completely destroy the individual mentally and physically which usually lead the drug user to resort to other crime like burglary, theft, Crime Against Women etc. [4] The person is still active in trafficking of NDPS articles as revealed from field information but could not be arrested red-handed again and issue of detention order under PITNDPS will also help Police in initiating financial investigation laid down under Chapter-V(A)of NDPS Act. [5] He was also involved in obstructing BSF personnel at I.B Border areas in performing their duties. Besides, he is actively helping cross border criminal in Yakubnagar area under Dharmanagar Police Station. (SARADINDU CHAUDHURI, IAS) SECRETARY HOME DEPARTMENT GOVERNMENT OF TRIPURA' 3. Petitioner was apprised of his right to make representation to the Central/State Government, detaining authority as well as to the advisory Board. He submitted a written representation to the detaining authority on 22.10.2021 claiming that he was falsely implicated in the NDPS case. No contraband was seized from his possession. He was not even spotted at the place of occurrence. He claimed that he was entangled in the case falsely on the basis of suspicion. He further claimed in his written representation that police submitted a false report against him to the detaining authority because most of the criminal cases which were shown pending against him under various provisions of IPC were already disposed of and he was acquitted in those cases. He further claimed in his written representation that police submitted a false report against him to the detaining authority because most of the criminal cases which were shown pending against him under various provisions of IPC were already disposed of and he was acquitted in those cases. He asserted that in the NDPS case on the basis of which the detention order was issued against him, no contraband was seized from his possession. The contraband was allegedly seized from one Md.Helal Mia as per the seizure list. He stated in his representation that he was the sole bread winner of his family consisting of his old and ailing mother, his wife and his minor nephew and he was in extreme financial constraints due to the outbreak of COVID-19 when a false case under NDPS Act was registered against him. 4. The detention order was communicated to the Central Government on 13.09.2021. It was referred to the State Advisory Board under communication No.F.15(9)-PD/2021(P-VII) dated 26.10.2021. State Advisory Board by order dated 06.11.2021 asked the detaining authority for producing the detenue before the Board on 12.11.2021 if the detenue desired to exercise his right to be heard in person. 5. Pursuant to the order of the State Advisory Board, detenue was produced before the board on 12.11.2021 when the statement of the detenue was recorded by the State Advisory Board. 6. The State Advisory Board met on 29.11.2021 and after consideration of the materials placed before it, came to the conclusion that the detention order was sustainable since it was made consciously in consideration of the materials placed before detaining authority. 7. Pursuant to the report received from the Advisory Board, State Government by order dated 03.12.2021 confirmed the detention order in terms of clause (f) of Section 9 of the PIT NDPS Act for a period of 01 year from the date of detention of the petitioner i.e. from 24.09.2021. The said confirmation order was also served on the detenue in Dharmanagar jail where he was detained. 8. Aggrieved by his detention, the petitioner has challenged the detention order by making this application under Article 226 of the Constitution seeking issuance of a Writ of Habeas Corpus commanding the respondents to release him from detention. 9. We have heard Mr. Bhaskar Deb, learned advocate appearing for the petitioner along with Mr.S.Rahman and Ms.K.Ghosh, learned advocates. Also heard Mr. Aggrieved by his detention, the petitioner has challenged the detention order by making this application under Article 226 of the Constitution seeking issuance of a Writ of Habeas Corpus commanding the respondents to release him from detention. 9. We have heard Mr. Bhaskar Deb, learned advocate appearing for the petitioner along with Mr.S.Rahman and Ms.K.Ghosh, learned advocates. Also heard Mr. Ratan Datta, learned PP representing the State respondents. 10. The petitioner has challenged is detention order mainly on the following grounds: (i) The order of detention is vitiated by non application of mind of the detaining authority. (ii) The detaining authority has referred to the NDPS case which was registered against the petitioner in the year 2018 without any proof of his involvement. No contraband was seized from his possession in the said case in which he has been already granted bail on 04.05.2019 and the case has culminated into trial after filing of charge sheet. The detaining authority considered none of these facts, which indicates that the detention order was issued without application of mind. (iii) The representation of the petitioner submitted to the detaining authority was rejected by the detaining authority without assigning any justifiable reason. (iv) Non consideration of the bail order by the detaining authority vitiated the detention order for non application of mind. 11. Mr.B.Deb, learned counsel of the petitioner while arguing in the case contended that the report of the DGP was actually based on the report of the Superintendent of Police in which the Superintendent of police proposed for preventive detention of the accused on the ground of his involvement in various cases registered for commission of IPC offences as well as the only NDPS case. 12. Learned counsel of the petitioner contends that the criminal cases registered for IPC offences cannot have any connection with the detention order issued under Section 3(1) of the PIT NDPS Act because the purpose of preventive detention under Section 3(1) of the PIT NDPS Act is to prevent a person from engaging in illicit traffic in NDPS which is completely different from IPC offences. 13. 13. Learned counsel of the petitioner has also contended that admittedly only one case under NDPS Act has so far been registered against the petitioner and that too is based on mere suspicion because undisputedly no contraband was seized from the possession of the petitioner and more over this is a stale case which was registered in the year 2018 in which the accused has already been granted bail by the special court by order dated 04.05.2019. 14. Having referred to the decision of the Hon'ble Apex Court in Sama Aruna v. State of Telengana and Another reported in (2018) 12 SCC 150 , learned counsel argues that in the said case, the Hon'ble Apex Court has observed that incidents which are old and stale and in which detenue has been granted bail, cannot be said to have any relevance for detaining a citizen and depriving him of his liberty without trial. Learned counsel has referred to the following paragraphs of the said judgment of the apex court which read as under: '21. Incidents which are old and stale and in which the detenu has been granted bail, cannot be said to have any relevance for detaining a citizen and depriving him of his liberty without a trial. This Court observed the following in Khudiram Das v. State of W.B (SCC p.92, para 9): '9.....The grounds on which the satisfaction is based must be such as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached. They must be relevant to the subject-matter of the inquiry and must not be extraneous to the scope and purpose of the statute. If the authority has taken into account, it may even be with the best of intention, as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be bad. Partap Singh v. State of Punjab. If there are to be found in the statute expressly or by implication matters which the authority ought to have regard to, then, in exercising the power, the authority must have regard to those matters. The authority must call its attention to the matters which it is bound to consider.' 22. Partap Singh v. State of Punjab. If there are to be found in the statute expressly or by implication matters which the authority ought to have regard to, then, in exercising the power, the authority must have regard to those matters. The authority must call its attention to the matters which it is bound to consider.' 22. We are of the view, that the detention order in this case is vitiated by taking into account incidents so far back in the past as would have no bearing on the immediate need to detain him without a trial. The satisfaction of the authority is not in respect of the thing in regard to which it is required to be satisfied. Incidents which are stale, cease to have relevance to the subject-matter of the enquiry and must be treated as extraneous to the scope and purpose of the statute.' 15. Counsel contends that the detention order was issued after the accused was granted bail in the NDPS case registered against him. If the detaining authority had any apprehension that due to his release on bail he would again carry on illegal activities in trafficking of NDPS, the detaining authority should have challenged the bail order instead of issuing an order for preventive detention of the accused. Under the premises aforesaid, counsel of the petitioner has urged the court for quashing the detention order. 16. Appearing for the State, learned PP has argued that the detention order was issued against the petitioner since from his past conduct and antecedents, the detaining authority, on the basis of the materials placed before it, arrived at a subjective satisfaction that unless detained, the petitioner would continue to engage himself in nefarious activities in trafficking of NDPS. 17. Learned PP contended that the order of detention along with the grounds thereof and the documents relied on by the detaining authority for issuing the detention order were communicated to the detenue and he was apprised of his right to make representation against the detention order. Nowhere in his representation, the detenue made any complaint that he did not receive any document or he was not apprised of his right to make representation. Learned PP contended that the safeguards provided under Article 22(5) of the Constitution were meticulously followed by the detaining authority and therefore, the detention order cannot be said to be illegal on any ground. Learned PP contended that the safeguards provided under Article 22(5) of the Constitution were meticulously followed by the detaining authority and therefore, the detention order cannot be said to be illegal on any ground. Learned PP, therefore, urged the court to reject the petition. 18. We have considered the submissions of learned counsel representing the parties and perused the materials placed before us. It has clearly emerged from the impugned order of detention that the detaining authority mainly relied on the involvement of the petitioner in Dharmanagar PS Case No. 2018DMN191 dated 16.12.2018 which was registered against the petitioner for commission of offence punishable under Sections 20(ii)(c) and 29 of NDPS Act. It is a settled law that the detention order must reflect the materials on the basis of which the detaining authority reached the subjective satisfaction about the need of preventive detention. In the instant case there is no reference in the detention order to the bail order granted by the trial court in favour of the accused in the said NDPS case. Moreover, undisputedly the only NDPS case registered against the accused which finds mention in the detention order dates back to 16.12.2018 and the detention order has been issued on 09.09.2021. As per the ratio decided by the apex court in the case of Sama Aruna (supra), incidents which are old and stale and in which detenue has been granted bail, cannot be said to have any relevance for detaining a citizen and depriving him of his liberty without trial. The Hon'ble Apex Court in the said judgment has succinctly held that detention order taking into account incidents which occurred far back in the past would have no bearing on the immediate need to detain a person without trial. 19. In view of the facts and circumstances stated above and the law laid down by the apex court in the case of Sama Aruna (supra), we find merit in the contention of learned counsel of the petitioner that the detention order is vitiated for non consideration of relevant materials. As a result, the petition stands allowed and the impugned detention order is set aside. 20. The detenue be released forthwith unless his detention is required in any other case. Communicate the order to the Superintendent of the jail where the petitioner is now detained. 21. In terms of the above, the case stands disposed of. As a result, the petition stands allowed and the impugned detention order is set aside. 20. The detenue be released forthwith unless his detention is required in any other case. Communicate the order to the Superintendent of the jail where the petitioner is now detained. 21. In terms of the above, the case stands disposed of. Interim application(s), if any, shall also stand disposed of. 22. Department's file and case diary be returned forthwith through learned PP.