Bijoy Paul vs Chairman And Ors

Arindam Lodh, J

Heard Mrs. S. Deb(Gupta), learned counsel appearing for the petitioner as well as Mr. Ratan Datta, learned P.P., appearing for the State-respondents.

The petitioner has filed the instant writ petition before this Court to declare his detention order as illegal and to release him immediately.

The brief facts are as under:-

The petitioner has stated in his writ petition that he is an auto parts businessman. The petitioner was initially detained on 15.10.2018 in connection with Sonamura P.S Case No.2018SNM138 under Section 20(b)(ii)(c)/25/29 of NDPS Act. He was released on ad-interim bail on 17.12.2018 which was further extended vide order dated 17.12.2018 till 16.01.2019. While the petitioner was on interim bail, some police officials of Sonamura Police Station along with SDPO, Sonamura had picked up the petitioner from his house and straightway he was taken to Jail. The police official did not disclose the cause of his arrest. Later on, the wife of the petitioner had submitted a written prayer on 16.02.2019 to the Sonamura Sub-Jail Authority and Superintendent of Police, Sepahijala District to inform her about the cause of detention. But they failed to give any response to the said representation. However, on 17.02.2019 the petitioner and his wife came to know that a detention order was passed on 26.12.2018 but there was no explanation about the reason of such detention and why it was not supplied to the petitioner within a period of five days when he was in custody in connection with Sonamura P/S Case No.138/2018.

On 17.02.2019, the petitioner and his wife came to know that in view of the detention order passed on 26.12.2018, the petitioner was taken to the jail custody. On 18.02.2019, the petitioner had submitted a representation before the Advisory Board but there was no response. The wife of the petitioner had again submitted representation but no proper response was made available neither to the wife nor to the petitioner. Ultimately, the petitioner filed one writ petition before this Court under Writ Petition (Crl.) No. 02/2019 on 24.06.2019 asking for a direction upon the respondents to inform the petitioner or his family members about the faith of his representation which was submitted on 18.02.2019. However, after filing of the writ petition, on 24.06.2019 when the matter came up before the High Court, it was informed to the Court that the said detention order was revoked. In view of such intervening development, the said writ petition was not pressed which would be evident from the order dated 26.08.2019 passed by this Court in connection with Writ Petition (Crl) No.02 of 2019 (Annexure-15 to the writ petition).

We have perused the order dated 26.06.2019 issued by Addl. Secretary, Govt. of Tripura revoking the order of detention, wherein it is revealed that the PITNDPS Advisory Board had opined that the said order of detention was not in accordance with the requirement of law and for that reason, the approval of the detention was declined (Annexure-16 to the writ petition).

It is the further case of the petitioner that though the detention order dated 26.12.2018 was revoked vide order dated 26.06.2019, but, thereafter, again on 06.07.2019 another detention order was passed by the Home Department showing the petitioner having his involvement in the following cases(Annexure-16A to the writ petition):-

"i. Bishramganj P.S. Case No.2016 BRG034 U/S 22(c) and 3 of Prevention of Damage to Public Property Act dated 12.10.2016, added Section 25/29 of NDPS Act.

ii. Sonamura P.S. Case No.2018 SNM138 U/S 20(b)(ii)(c)/25/29 of NDPS Act on 17.10.2018.

iii. AMT PS Case No.176/2016 dated 22.12.2016 U/S 279/338/333/353/307/427 IPC and 22(c) of NDPS Act.

iv. PR Bari P.S. Case No.143/2018 U/S 20(b)(ii)(c)/21(c)/08/25/29 of NDPS Act."

Mrs. S. Deb (Gupta), learned counsel appearing for the petitioner submitted that the petitioner was in custody w.e.f., 17.10.2018 in connection with Sonamura P/S Case No.138 of 2018 which was registered on 12.10.2016 which would be evident from the detention order dated 06.07.2019 itself as aforestated. Learned counsel further submitted that during his detention, the petitioner at no point of time was shown arrested by investigating officer in connection with the case No.2016 BRG034 under Section 22(c) and 3 of Prevention of Damages of Public Property dated 12.10.2016 with added Section 25/29 of NDPS Act.

In the second case, i.e., Sonamura P/S Case No.2018 SNM138, the petitioner was enlarged on bail, and such order was already revoked as aforestated.

Learned counsel has drawn our attention to the fact that the petitioner was never arrested prior to his detention or after his detention in the jail Custody in connection with AMT P/S Case No. 176/2016 dated 22.12.2016 [Spl. (NDPS) 01 of 2017].

Mrs. S. Deb(Gupta), learned counsel submitted that at no point of time, the petitioner was neither arrested or produced before any Court of Law in any of the aforesaid cases except Sonamura P/S Case No.138/2018. Learned counsel has emphasised that in AMT P/S Case No.176/2016, charge sheet was submitted against three accused persons and charge sheeted two accused- persons were already discharged by the learned Trial Court vide order dated 20.11.2018 but surprisingly, the present petitioner was entangled in connection with said case.

Similarly, in the fourth case relating to P.R. Bari P.S. Case No.143 of 2018, the present petitioner was also not shown arrested at any point of time. P.R. Bari Case No.143 of 2018 which was subsequently registered as Special NDPS Case No.1 of 2019 is pending before Special Judge, South Tripura, Belonia. Special Judge vide his order dated 07.05.2019 had discharged all the accused-persons but surprisingly, the present petitioner was detained by the authority in connection with the aforesaid case.

Mrs. S. Deb(Gupta) learned counsel submitted that on 13.08.2019, the present petitioner had filed a representation challenging his illegal detention to the Chairman, Advisory Board constituted under PITNDPS Act. But that was rejected by the Advisory Board vide order dated 03.09.2019 most illegally and arbitrarily and most significantly in the said order dated 03.09.2019, the period of detention of the petitioner was not mentioned. The order dated 03.09.2019 was delivered to the petitioner on 19.09.2019. Under these circumstances, the learned counsel has submitted that the detention of the petitioner should be declared as illegal and the petitioner should be released immediately.

On the other hand, Mr. R. Datta, learned P.P., appearing for the State-respondents submitted that there are sufficient materials against the accused-person, petitioner herein and the Advisory Board approved the detention of the accused-person.

We have heard the rival submissions and the learned Advocates for the parties and also have given our anxious consideration to the legal aspects of the case.

A bare perusal of the detention order dated 06.07.2019 (Annexure-16A to the writ petition) issued by the State-respondents, it becomes apparent that while the petitioner was in custody in connection with Sonamura P.S Case No.138/2018 registered under Section 20(b)(ii)(c)/25/29 of NDPS Act due to his arrest on 17.10.2018, all the cases referred to in the order dated 06.07.2019 were in existence. But the petitioner was not shown arrested, rather, he was not informed of those pending cases. The reasons are best known to the respondents, but the question remains why the petitioner was not arrested in those cases when the said cases were registered in the year 2016 itself.

We reiterate that surprisingly the petitioner was never informed of those cases. Another important aspect is that, the petitioner after his arrest in connection with Sonamura P/S Case No.138 of 2018 was released on ad-interim bail and while he was enjoying the benefits of bail, he was suddenly taken into custody in pursuance to the order dated 06.07.2019 issued by the respondents.

In this circumstances, the action of the respondents appears to be malafide only with the intention to improve and increase the number of cases against the petitioner for the purpose of his detention in the jail custody which cannot be allowed keeping in mind the provision enshrined in Article-21 of the Constitution of India. These are not only old and therefore stale cases, in the previous detention order which was withdrawn on advice of the advisory board, no reliance was placed on these cases.

We may gainfully refer a recent decision of the Apex Court in Khaja Bilal Ahmed Vs. State of Telangana & Ors., Criminal Appeal No. 1876 of 2019 @ SLP (Crl.) No.5487 of 2019, wherein the Apex Court referred to para-17 of the case of Sama Aruna v. State of Telangana reported in (2018) 12 SCC 150 which is reproduced hereinbelow:-

"17. The detention order must be based on a reasonable prognosis of the future behaviour of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case. A detention order which is founded on stale incidents must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. See G. Reddeiah V. State of A.P.[G. Reddeiah v. State of A.P., (2012) 2 SCC 389: (2012) 1 SCC (CRI) 881] AND P.U. Iqbal v. Union of India[P.U. Iqbal v. Union of India, 91992) 1SCC 434: 1992 SCC (Cri) 184] [ Emphasis supplied]"

In the context of the present case, it is found that the detaining authority while passing the order of detention dated 06.07.2019 made reference to three previous criminal cases alleging that his name was surfaced in connection with those cases which pertains to 2016. It is stated in the Bar that those cases were already disposed of with the discharge of the accused-persons. In the light of the decision in Khaja Billal Ahmed(Supra), the detention orders passed against the petitioner according to us, tantamount to punishment which is against the essential concept of preventive detention that the detention of a person is not to punish for something the petitioner has done but to prevent him from doing it in future.

In the premise of the aforesaid circumstances, according to us, it is not open to the detaining authority to simply connect the petitioner with those incidents which became stale by this time and hold them as the basis of the order of detention.

Accordingly, we hold that the order of detention dated 06.07.2019 issued by the Chief Secretary to the Government of Tripura and the advice of the Advisory Board approving the order of detention dated 06.07.2019 suffer from extraneous consideration which deserves to be declared illegal in the context of the present case.

Consequently, the petitioner is to be relieved of such illegal detention immediately. The respondents are directed to release the petitioner forthwith.

With the above observation and direction, the instant writ petition stands disposed.