NDPS Act| Unreasonable And Unexplained Delay In Securing Detenu For Detention Vitiates Detention Order- SC

The Bench of CJI UU Lalit, Justice S. Ravindra Bhat, and Justice J.B. Pardiwala held that it becomes imperative on the part of the detaining authority as well as the executing authorities to remain vigilant and keep their eyes skinned but not to turn blind eye in passing the detention order.

The Court noted that in the case there was a delay in arresting the detenu after the date of passing of the detention order.

The detenu – Appellant had preferred an appeal before the Supreme Court assailing the judgment of the Tripura High Court at Agartala. The detenu was detained under Section 3(1) of the NDPS Act, 1988. The High Court had rejected the writ application of the Appellant questioning the legal validity of the detention order passed by the Government of Tripura and affirmed the order of detention.

A proposal was moved by before the appropriate authority for passing an order of detention under the provisions of NDPS Act.

The order of detention came to be passed essentially on the ground that in the past two FIRs were registered against the Appellant for the offences under the NDPS Act and was a habitual offender.

It is pertinent to note that in both the FIRs registered against the Appellant he was released on bail by the Special Court, Tripura.

Counsel Madhumita Bhattacharjee appeared for the Appellant-Detenu while Counsel Nachiketa Joshi appeared for the State of Tripura before the Court.

The Court noted that it was persuaded to allow the appeal on the following grounds-

i) There was a delay in passing the order of detention from the date of proposal which snapped the 'live and proximate link' between the prejudicial activities and the purpose of detention and failure on the part of the detaining authorities in explaining the delay.

ii) The detaining authority remained oblivious of the fact that in both the FIRs registered against the detenu, he came to be released on bail by the Special Court, Tripura. The detaining authority remained oblivious as this material and vital fact of the detenu being released on bail in both the cases was suppressed or not brought to the notice of the detaining authority by the sponsoring authority at the time of forwarding the proposal to the pass the appropriate order of preventive detention.

The Court also noted that there was a considerable delay of five months for detaining authority to pass the order of detention order.

The Bench placed reliance on Ashok Kumar v. Delhi Administration & Ors., where it was observed –

"Preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing."

In this context, the Bench further held –

"In view of the above object of the preventive detention, it becomes very imperative on the part of the detaining authority as well as the executing authorities to remain vigilant and keep their eyes skinned but not to turn a blind eye in passing the detention order at the earliest from the date of the proposal and executing the detention order because any indifferent attitude on the part of the detaining authority or executing authority would defeat the very purpose of the preventive action and turn the detention order as a dead letter and frustrate the entire proceedings."

"The adverse effect of delay in arresting a detenu has been examined by this Court in a series of decisions and this Court has laid down the rule in clear terms that an unreasonable and unexplained delay in securing a detenu and detaining him vitiates the detention order," the Bench further observed.

The Court held that if there is unreasonable delay between the date of the order of detention & 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.

The Court further also noted that in the 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, and thus held –

"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 & though this point of delay was specifically raised & argued before the High Court as evident from Para 14 of the impugned judgment yet the High Court has not recorded any finding on the same."

The Court while referring to Section 37 of the NDPS Act observed that the Appellant was although arrested in connection with the offence under NDPS Act, the Special Court thought fit to release the Appellant on bail despite the rigours of Section 37 which deals with 'Offences to be cognizable and non-bailable.'

"It is clear to our mind that in the case on hand 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," the Court held.

The Court observed that 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.

In light of these observations, the Court allowed the appeal, set aside the impugned judgment of the High Court and quashed the detention order passed by the State, and ordered the release of the Appellant.

Cause Title – Sushanta Kumar Banik v. State of Tripura & Ors.

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