Bidhan Roy vs State Of Tripura And Ors

S. Talapatra, J

[1] This writ petition seeking release of the detenue on setting aside the order of detention under No.F.15(9)-PD/2019(P-X) dated 30.01.2019 [Annexure-1 to this petition] has been heard with the writ petition being W.P.(C) (HC) No.09 of 2019 [Sri Nirmal Shil vs. State of Tripura & Ors.] as it has been asserted by the counsel for the parties that even though there are some differences in the factual matrix of two writ petitions but the grounds of challenge are identical.

[2] The petitioner, hereinafter referred to as the detenue, has asserted that as he has raised the voice against the illegal activities of some anti social elements who are having the political affiliation, they demonstrate their hostility by influencing the administration. As the detenue has earned the displeasure and animosity, he has been falsely implicated in some cases under different police stations, even under Section 27(B) of Narcotic Drugs and Psychotropic Substances Act, 1988, the NDPS Act in short, but not under Section 27A which provides that whoever indulges in financing, directly or indirectly, any of the activities specified in sub-clauses (i) to (v) of clause (viiia) of section 2 or harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

[3] Section 27B provides punishment for contravention of Section 8A of the NDPS Act which deals with prohibition of certain activities relating to property derived from the offence. When the detenue was under custody, the detention order dated 30.01.2019 has been passed by the Addl. Secretary, Department of Home, Government of Tripura invoking the provisions of Section 3(1) of the Prevention of Illegal Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, for short the PITNDPS Act. According to the detenue, the said order is absolutely groundless and untenable in law. The grounds which can be gathered from the order dated 30.01.2019 are that the detenue was involved in the following cases:

[i] Ranirbazar PS case No.2018 RNB 013 dated 27.02.2018 U/S 22(c) of NDPS Act, 1985.

[ii] Teliamura PS case No.2015/TLM/101 U/S 21(C)/22(C) of NDPS Act, 1985 and 27(b) of Drugs & Cosmetics Act, 1940 dated 19.08.2015.

[iii[ Manu PS case No.2018 MNU 018 dated 05.06.2018 U/S 20(C)/25/29(i) of NDPS Act, 1985.

That apart, the Director General of Police, Tripura has proposed to prevent the detenue from continuing 'his harmful and prejudicial activities' by engaging him in the illicit traffic of narcotic drugs and psychotropic substances, in the interest of the society.

[4] Mr. P.K. Biswas, learned senior counsel appearing for the detenue has submitted that the detenue has not been served any copy of the documents or the report as sent by the Director General of Police, based on which the detention order has been made and thus, the detenue has been deprived of his right to make effective representation to the detaining authority and to the Advisory Board as constituted under Section 9 of the PITNDPS Act. That apart, for the detenue it has been asserted that formation of grounds is not based on any tenable assessment. The detenue had submitted his representation [Annexure-2 to this petition] on 05.07.2019 to the Chief Secretary, Government of Tripura through the Superintend of Jail, Kendriya Sansodhanagar pointing out infirmities of the detention order and claiming his innocence. In the said representation also the detenue has categorically stated that he was not supplied with copies of the documents on the basis of which the detaining authority formed the opinion for issuing the detention order. Mr. Biswas, learned senior counsel has further asserted that Article 22(5) of the Constitution of India guarantees the right of the detenue to make effective representation questioning the correctness of the detention order by operation of which the detenue has been detained. The said representation dated 05.07.2019 [Annexure-2 to this petition] has been rejected by the detaining authority. It is gathered from the order under No.F.15(9)-PD/2019 (P.I) dated 03.09.2019 [Annexure-3 to this petition] that by the order dated 16.07.2019 the Advisory Board after examination of records and documents placed before it had opined that the detaining authority had sufficient reasons in passing the detention order. Finally, by the said order dated 03.09.2019, the detention order dated 30.01.2019 has been confirmed under Section 9(F) of PITNDPS Act, 1988 till expiration of one year from the date of detention. It may be noted further that the detenue had approached this court by filing another writ petition being W.P.(C) (HC) No.06 of 2019 for release on the ground of medical emergency. But in view of the order No.F.15(9)-PD/2018(P-I) dated 01.10.2019 [Annexure-5 to this petition] whereby the detenue was allowed the temporary release for 30 days for going to the referral hospital, the said writ petition was withdrawn, as would be evident from the order dated 03.10.2019.

[5] Mr. A.K. Bhowmik, learned Advocate General appearing for the respondents No.1,2 & 3 has submitted that the detenue was made aware or informed about the materials those were considered for forming the grounds of detention. Notwithstanding that he has fairly submitted that the detenue had raised non supply of the documents as the ground in his representation by stating that he has been brazenly deprived of his right under Article 22(5) of the Constitution of India. That apart, Mr. Bhowmik, learned Advocate General has submitted that the final order dated 03.09.2019 [Annexure-3 to this petition] has not been challenged by the detenue and hence, this court may not issue a writ of habeas corpus. Mr. Bhowmik, learned Advocate General has further emphasized in the course of his submission that the detention order may not be put on mechanical test for non supply of the material documents relied for forming the grounds for detention as such view may not sub-serve the public interest against the dangerous activities of the detenue.

[6] Mr. H. Deb, learned Asstt. S.G. of India appearing for the respondent No.4 has stated that the copy of the detention order has been communicated to the Union of India in terms of Section 3(2) of the PITNDPS Act.

[7] Having appreciated the submissions of the learned counsel appearing for the parties as well on scrutiny of the records, the pertinent question that surfaces is that whether non-supply of the documents has caused serious prejudice to the detenue, inasmuch as within the time as prescribed by Section 3(3) of the PITNDPS Act which has engrafted a paramateria provision of the COFEPOSA Act the documents were not made available to the detenue. 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.

[8] In Nirmal Shil (supra), this court having appreciated the law in respect of supply of the documents which formed the grounds of detention has held that in the case in hand no document whatsoever which form the ground for detention was not 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.

It has been further held that the plea that has been raised by Mr. Bhowmik, learned Advocate General that unless the final order is challenged, this court may not issue the writ of habeas corpus is totally unacceptable as the foundational order cannot be sustained for gross procedural infirmity. Having observed thus, the detention orders both the foundational one and the final one had been struck down directing the respondents No.1 & 2 to release the detenue forthwith.

[9] There cannot be any amount of hesitation that the documents which primarily formed the ground for detention are to be mandatorily supplied to the detenue and non-supply would invariably cause prejudice to the detenue. Hence, the detention orders dated 30.01.2019 [Annexure-1 to this petition] and the final order dated 03.09.2019 [Annexure-3 to this petition] are struck down. As consequence thereof, it is directed that the detenue shall be released forthwith, if not wanted in any other case.

[10] In the result, the writ petition stands allowed. However, there shall be no order as to costs.