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Judgment
S. Talapatra, J
[1] The petitioner, hereinafter referred to as the detenue, who has been booked under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, in short PITNDPS Act, by the order under No.15(9)-D/2020 dated 16.06.2020 [Anexure-1 to the petition] has challenged the said order of detention dated 16.06.2020 on the grounds that, (i) the detenue was not apprised of his right to file representation within a time frame questioning the subjective satisfaction of the detaining authorities for such detention. In the case in hand, such satisfaction is founded on vague, irrelevant, non-existent and extraneous factors having no live-link with the objective of detention, (ii) Reference of 3[three] criminal cases has been made in the order of detention dated 16.06.2020, but there has been no disclosure at what stage those criminal cases have reached. (iii) It is apparent that when the petitioner was to be released on bail, the said order of detention has been issued, which by itself is an encroachment on the legal process, (iv) That apart, it has been asserted by the detenue that the order of detention is poised in complete contrast to Article 22 of the Constitution of India and Section 10 of the PITNDPS Act, 1988.
The detenue has further asserted that it would be apparent from the order of detention dated 16.06.2020 that the satisfaction has not been derived from 3[three] criminal prosecutions pending against the detenue. The detenue has categorically stated that even in the representation that he filed on 05.07.2020 to the Advisory Board he has categorically stated that the relevant documents were not supplied to him and non-supply of documents has deterred him from making the representation being fully aware of the materials which were considered against him. In Para-12(A), the detenue has stated that the jail authority had handed over a copy of the order dated 05.08.2020, whereby the order of detention dated 16.06.2020 has been confirmed for one year from the date of detention. On perusal of the order dated 05.08.2020 [Annexure-8 to the petition] it would transpire that the respondent No.4 by their report dated 03.07.2020 has opined that there is sufficient materials for detention of the detenue, but the part of the report in which opinion of the Advisory Board has been considered has not been supplied to the detenue. It has been stated that the detenue has not been apprised as to what documents were laid before the Advisory Board for getting their approval as to his detention under the said Act. Notwithstanding the specific assertion by the detenue that by his representation dated 05.07.2020 to the effect that the detenue authority did not supply the copies of the documents to him, the respondent No.4 without considering the same, most illegally opined that the detention order is valid and hence, the same is liable to be interfered with.
[2] Mr. S. Lodh, learned counsel appearing for the detenue has submitted that the report of the Director General of Police, the DGP in short, was not supplied to the detenue but from the order dated 16.06.2020 it appears that the detention order has been passed on the basis of the proposal for detention sent by the DGP. Mr. Lodh, learned counsel has categorically relied on the following part of the order of detention:
"Now, therefore, the State Government in exercise of powers conferred by sub-section (1) of Section (3) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 and after careful examination of the proposal of the Director General of Police, Tripura and other supporting documents has found sufficient grounds for detention of Shri Sukalyan Das @ Rupak @ Sameer S/O Shri Sanjoy Kumar Das of Jagannath Chowmuhani, P.S. R.K. Pur, Gomati, Tripura and thus, directs that the said Shri Sukalyan Das @ Rupak @ Sameer S/O Shri Sanjoy Kr. Das of Jagannath Chowmuhani, P.S. R.K. Pur, Gomati, Tripura be detained and kept in the custody of Kendriya Sansodhanagar, Bishalgarh, Sepahijala District."
[3] Mr. Lodh, learned counsel has submitted that in the grounds of detention also it has been stated that from the report of the DGP, it appeared that the detenue had been implicated in three police cases viz. Jirania PS case No.20220JRN002 dated 09.01.2020, Sidhai P.S. case No.2018SDI125 dated 29.12.2018 and Airport P.S. Case No.2019APR005 dated 16.01.2019. All the cases are commission of the offences relating to the NDPS Act and recovery of cannabis in huge quantity. In the grounds of objection, it has been observed that the detenue is closely associated with the intra/interstate drug rackets and the detenue is engaged in illicit trafficking of narcotic drugs and psychotropic substances. His activities are harmful and prejudicial to the society. Mr. Lodh, learned counsel has, therefore, submitted that the ground No.(iv) is based on the materials relating to the case of Jirania Police Station, but these materials are completely unknown to the detenue. But after analysing those materials, an adverse inference has been drawn against the detenue, even the CDR analysis report has not been placed to the detenue. As such, according to Mr. Lodh, learned counsel, the detenue was not only deprived of perusing a copy of the report of the DGP, Tripura and the CDR analysis report, as purportedly made by the Government of Tripura and as such, his representation was not in form, that has infringed the right of the detenue as protected under Article 22(5) of the Constitution of India.
[4] Mr. Lodh, learned counsel has further contended that this court in a series of cases has held that if the materials/documents which are relied on are not communicated to the detenue, it curtails the valuable right as protected by Article 22(5) of the Constitution of India. Mr. Lodh, learned counsel has referred a decision of this court in Nirmal Shil vs. State of Tripura & Ors. [the judgment and order dated 16.06.2020 delivered in W.P.(C) (HC) No.09 of 2019] where this court has observed as follows:
"There cannot be any amount of doubt that non-supply of those materials/documents has curtailed the right of the detenue as protected by Article 22(5) of the Constitution of India which enjoins upon the detaining authority obligation to afford to the detenue earliest opportunity of making a representation against the order. As consequence of non-supply the detenue could not make the representation to the Advisory Board. Thus, the right of the detenue has been infringed for complete disregard to the obligation as created by the Article 22(5) of the Constitution of India. True it is that the order of detention is a precautionary measure and except seeking the judicial review within the short compass, when the representation fails evoke any positive yield, no remedial measure is available to the detenue. Only on the ground of constitutional infirmity such order of detention can be interfered with by this court."
[5] In Nirmal Shil (supra), ratio of State of Tamil Nadu and another vs. Abdullah Kadher Batcha and another, reported in (2009) 1 SCC 333 has been referred. In the report, the apex court had occasion to observe that non-supply of document can be examined by the constitutional courts to find out whether non-supply of document has prejudiced the detenue or the detenue has been deprived of effective representation in absence of documents. But in that case also, it has been observed as follows:
"6. In Radhakrishnan Prabhakaran v. State of T.N. and Ors. (2000 9 SCC 170, it was observed as follows:
"8. We may make it clear that there is no legal requirement that a copy of every document mentioned in the or- der shall invariably be supplied to the detenu. What is important is that copies of only such of those documents as have been relied on by the detaining authority for reaching the satisfaction that preventive detention of the detenu is necessary shall be supplied to him. It is admit- ted by the learned counsel for the petitioner that the order granting bail has been supplied to him. Application for bail has been submitted by the detenu himself when the order of detention was passed which was subsequent to the order granting bail. We cannot comprehend as to how a prior order rejecting bail would be of any relevance in the matter when it was later succeeded by the order granting bail. But learned counsel emphasised that the counter filed by the Department was a relevant document, a copy of which has not been supplied to him."
The view in Radhakrishan Prabhakaran's case (supra) was reiterated in J. Abdul Hakeem v. State of T.N. and Ors. (2005) 7 SCC 70 and Sunila Jain v. Union of India and Anr. (2006) 3 SCC 321.
The Court has a duty to see whether the non supply of any document is in any way prejudicial to the case of the detenu. The High Court has not examined as to how the non supply of the documents called for had any effect on the detenu and/or whether non supply was prejudicial to the detenu. Merely because copies of some documents have been supplied they cannot by any stretch of imagination be called as relied upon documents. While examining whether non supply of a document would prejudice a detenu the Court has to examine whether the detenu would be deprived of making an effective representation in the absence of a document. Primarily, the copies which form the ground for detention are to be supplied and non supply thereof would prejudice to the detenu. But documents which are merely referred to for the purpose of narration of facts in that sense cannot be termed to be documents without the supply of which the detenu is prejudiced." [Emphasis added]
[6] The crux of the said decision as noted above is that non-supply of a document might prejudice a detenue. It is to be weighed, whether the detenue has been deprived of making an effective representation in the absence of the said document. Primarily, the copies which form the ground for detention are to be supplied and non-supply thereof would prejudice to the detenue. But documents which are merely referred for the purpose of narration of facts cannot be termed to be documents as essential without the supply of which, the detenue is found to suffer prejudice.
[7] Mr. Lodh, learned counsel has also referred another decision of this court in Mst. Kamrul Nahar vs. State of Tripura & Ors. [the judgment and order dated 08.07.2020 delivered in W.P.(C) (HC) No.2 of 2020] where the principle of Nirmal Shil (supra) has been followed. Therefore, this court is not inclined to give further reference from the said decision.
[8] In order to repel the submission made by Mr. Lodh, learned counsel appearing for the detenue, Mr. R. Datta, learned PP appearing for the state-respondents has submitted that the plea as raised by the detenue to challenge the order of detention dated 16.06.2020 is grossly untenable. Mr. Datta, learned PP at the outset has submitted that while the detenue submitted his representation on 05.07.2020, he has not raised the plea of prejudice. Only in the penultimate paragraph of the said representation, the detenue has stated that the detention order is bad as the documents in connection with the aforesaid 3[three] cases were neither placed or supplied to him. Mr. Datta, learned PP, while refuting the allegations, has submitted that the complaints of all the cases which are quite descriptive were supplied to the detenue and there is no dispute in this regard. Those written complaints have been enclosed with the reply filed by the state-respondents. Mr. Datta, learned PP has submitted that it has been provided in the grounds for detention that only 3[three] cases were referred in the report of the DGP, Tripura and the grounds were also formed on the basis of those 3[three] cases where the detenue is implicated with the serious crime like trafficking. Mr. Datta, learned PP has submitted that all the requisite formalities have been observed by the detaining authority on the basis of the power he was delegated with. According to him, the detaining authority has supplied all the requisites of Section 3(2) of the PITNDPS Act. The materials which were relied by the detaining authority for issuing the order of detention dated 16.06.2020 were supplied to the detenue and the detenue made the representation. Even he was produced before the Advisory Board to make his submission. Thereafter, the Advisory Board observed that the order of detention suffers from no infirmity. The state-respondent i.e. the detaining authority had confirmed the order of detention for one year.
[9] According to the respondents, the detenue was arrested in connection with Jirania PS case No.20220JRN002 under Sections 20(b)(ii)(c)/25/27A/29 of the NDPS Act. In that case, 165 Kgs. of dry Ganja [Cannabis] were seized and it has been further revealed that the detenue was directly involved in running the illegal business of narcotic drugs throughout the state. When he was still under detention in connection with the said case, he was served with a copy of the detention order with the grounds of detention and the materials 'those were relied' for issuing the order of detention. The detenue was involved in Sidhai P.S. case No.2018SDI125 under Sections 20(a)(b)(ii)(C)/25/29 of the NDPS Act. In that case, 349 Kgs. of dry Ganja [Cannabis] were recovered and on completion of the investigation, the final police report chargesheeting the detenue has been submitted. In another case being Airport P.S. case No.2019APR005 of under Sections 22(a)27A/29 of the NDPS Act, the detenue was arrested on 28.06.2019 and he was released on bail 30.07.2019. Even in Sidhai P.S. case, the detenue has been given bail.
[10] Mr. Datta, learned PP has reiterated the strange plea that there is no provision in the PITNDPS Act that the detenue be informed the date of release on bail in connection with the referred cases in the detention order. While refuting the allegations made by the detenue against the state-respondents, he has stated that it has been clearly established that the detenue had close association with the members of intra and interstate drug rackets. His involvement in Jirania PS case No.20220JRN002 has been found on the materials collected during the investigation. It had surfaced that he has continued with the illegal trafficking of narcotic drugs and psychotropic substances and that persuaded the detaining authority to initiate a proposal to detain him under PITNDPS Act. Section 3(1) of the PITNDPS Act, 1988 provides for detaining any person with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances. The state-respondents again raised a plea that the detaining authority is not bound to disclose the stage in which the criminal cases are pending. Therefore, non-disclosure of such documents cannot in any manner prejudice the detenue. The state-respondents have categorically asserted further that it is the detenue who has to say what right he has failed to exercise inasmuch as it is apparent that the detenue has exercised his right to file the representation. Even he was provided with the opportunities to have his say before the Advisory Board. Having taken the opinion of the Advisory Board into consideration, the detaining authority has confirmed the detention for one year, maximum period of detention. The detenue was heard and as such, the order of detention cannot be faulted with. True it is that the detenue may be detained for a period longer than 3[three] months but not exceeding 6 [six] months from the date of detention even without obtaining the opinion of the Advisory Board in a special and exceptional circumstances. There is no stipulation/mandate of law in the Act that the period of detention must be mentioned in the detention order. Thus, there is no illegality or infirmity in passing the order of order of detention dated 16.06.2020 and the said order has been confirmed by the Advisory Board. Subsequently, the detention has been confirmed by the order dated 05.08.2020. There cannot be any different opinion that the illicit trafficking of narcotic drugs and psychotropic substance has turned out to be a serious menace for the society and as such, unless serious prejudice is caused, the court may not interfere in the order of detention. Along with the order of detention, the following documents were supplied to the detenue:
(i) Ground of detention (02 sheets)
(ii) Copy of FIR and Written complaint of Jirania PS Case No.2020JRN002 (02 sheets)
(iii) Copy of Arrest Memo, dated 15/04/2020 of the petitioner in connection with Jirania PS Case N. 2020JRN002 (01 sheet)
(iv) Copy of FIR and written complaint of Sidhai PS Case No. 2018SDI125 (02 sheets)
(v) Copies of the Order dated 30/09/2019, 02/07/2019 & 27/09/2019 passed by the learned Special Judge, Court No. 2, West Tripura, Agartala, in Case No. Spl. NDPS 02 of 2019. This is arising out of Sidhai PS case No. 2018ARP005 (02 sheets)
(vi) Copy of FIR and written complaint of Airport PS Case No. 2019ARP005, were served to the petitioner on 18/06/2020 through the Jailor, Kendriya Sangshodhanagar, Bishalgarh, who explained the detenue petitioner each and every aspects of the matter and also his rights to file representation to the appropriate authority.
And even the subsequent order of extension dated 5.08.2020 regarding extension of his detention period for one year, issued by the Principal Secretary, Home Department, Govt. of Tripura vide No. F.15(9)-PF/2020, without any loss of time was served upon the detenue Sri Sukalyan Das through the Jailor, Kendriya Sangshodhanagar, Bishalgarh on 8.08.2020.
[11] The state-respondents have further asserted that for non-supply of the internal procedural document, the order of detention cannot be held vitiated. Substantive materials considered for passing the detention order be disclosed to the detenue. Law in this regard very clear. According to Mr. Datta, learned PP, the documents or records which were considered by the detaining authority had been supplied to the detenue along with the order of detention and the grounds for detention. Those documents were also filed to the Advisory Board. After perusal, the Advisory Board has observed that the order of detention order dated 16.06.2020 does not suffer from a procedural irregularities or omissions.
[12] In order to nourish his submission, Mr. Datta, learned PP has placed his reliance on Radhakrishnan Prabhakaran vs. State of T.N. and others, reported in (2009) 9 SCC 170 where the apex court has approved the submission made by the counsel for the state of Tamil Nadu to the effect that the expression 'all the facts and materials referred' need not necessarily include the counter-affidavit filed by the Customs Department. In fact no such counter-affidavit was considered by the detaining authority.
[13] In J. Abdul Hakeem vs. State of T.N. and others, reported in (2005) 7 SCC 70, the apex court has observed that the detenu has a right to be furnished with the grounds of detention along with documents so referred or relied upon. It is immaterial whether the detenu already knew about their contents or not; it is being a constitutional imperative for the detaining authority to give the documents relied on and referred to in the order of detention. Supply of the relevant document which is made basis for passing the detention order, whether demand was made for such a document or not, has to be made to the detenu, as a constitutional safeguard has been culled out enshrined in Article 22 (5) of the Constitution of India. In J. Abdul Hakeem (supra) it has been further observed as under:
In the latter decision of this Court, in the matter of Kamarunnissa Vs. Union of India : (1991) 1 SCC 128, this Court reaffirmed the right of the detenu to receive the document which was taken into consideration by the detaining authority while formulating the grounds of detention. The Court further said that a duty and obligation is cast on the detaining authority to supply copies of those documents in the language known to the detenu; having said, the Court put a rider; but it is not that non-supply of each and every document provide a ground for setting aside the detention order. It is for the detenu to establish that the non-supply of copies of the documents has impaired the detenu's right to make an effective and purposeful representation. The demand made by the detenu of the document merely on the ground that there is a reference in the grounds of detention, cannot vitiate the otherwise legal detention order. No hard and fast rule can be laid down in this behalf. What is essential is that the detenu must show that the failure to supply the documents had impaired his right, however slight or insignificant it may be.
The principle of supply of the material documents to the detenu was considered by this Court in the matter of Radhakrishnan Prabhakaran Vs. State of Tamil Nadu : (2000) 9 SCC 170. In Para 8, this Court has said:
8. We make it clear that there is no legal requirement that a copy of every document mentioned in the order shall invariably be supplied to the detenu. What is important is that copies of only such of those documents as have been relied on by the detaining authority for reaching the satisfaction that preventive detention of the detenu is necessary shall be supplied to him‟.
From the aforesaid authorities it is clear that the detenu has a right to be supplied with the material documents on which the reliance is placed by the detaining authority for passing the detention order but the detention order will not be vitiated, if the document although referred to in the order is not supplied which is not relied upon by the detaining authority for forming of its opinion or was made basis for passing the order of detention. Crux of the matter lies in whether the detenue's right to make a representation against the order of detention, is hampered by non- supply of the particular document.
In the present case although the detaining authority in the grounds of detention had referred to the passports and the entries made therein for the foreign trips made by the detenu but that cannot be said to have been relied upon by the detaining authority for passing the detention order. The detenu- appellant has admitted in his statement dated 17.7.2004 which was in his own hand-writing, that he had an old passport under which he travelled 23 times to Sri Lanka out of which 10 visits were made to Hong Kong via Sri Lanka; that he had traveled once to Singapore and under the current passport he had traveled 4 times to Hong Kong via Sri Lanka. It is this statement of the detenu-appellant made before the authorities on 17.7.2004, was the basis for passing of the detention order and reference of the two passports containing entries of the foreign visits by the detenu is only a passing reference. The passport entries are not made the basis of detention order. The basis is admission of the foreign visits made by the detenu in his statement. We fail to understand as to how non- supply of copies of the passports of the appellant- detenu prejudicially affect his right to make a proper representation against the order of detention. The non-supply of copies of the passports will not have the effect of vitiating the detention order.
[14] Based on the above observation of the apex court, Mr. Datta, learned PP has submitted that the principle as laid down in Radhakrishnan Prabhakaran (supra) that there is no legal requirement that a copy of every document mentioned in the order shall invariably be supplied to the detenue. What is important is that the copies of those documents as have been relied on by the detaining authority for reaching the satisfaction that preventive detention of the detenue is necessary shall be supplied to him. Mr. Datta, learned PP has submitted that all the materials documents since have been supplied to the detenue, the detenue cannot express any grievance. Non-supply of inconsequential documents cannot cause prejudice to the detenue. Mr. Datta, learned PP has finally relied on a decision of the apex court in State in Maharashtra and others vs. Bhaurao Punjabrao Gawande, reported in (2008) 3 SCC 613 where it has been held that the primary object of preventive detention is not to punish a person for having done something but to intercept him before he does it. To put it differently, it is not a penalty for past activities of an individual but is intended to pre-empt the person from indulging in future activities sought to be prohibited by a relevant law with a view to preventing him from doing harm in future. It has been also observed in Bhaurao Punjabrao Gawande (supra) as follows:
"36. Liberty of an individual has to be subordinated, within reasonable bounds, to the good of the people. The framers of the Constitution were conscious of the practical need of preventive detention with a view to striking a just and delicate balance between need and necessity to preserve individual liberty and personal freedom on the one hand and security and safety of the country and interest of the society on the other hand. Security of State, maintenance of public order and services essential to the community, prevention of smuggling and black marketing activities, etc. demand effective safeguards in the larger interests of sustenance of a peaceful democratic way of life.
In considering and interpreting preventive detention laws, courts ought to show greatest concern and solitude in upholding and safeguarding the Fundamental Right of liberty of the citizen, however, without forgetting the historical background in which the necessity an unhappy necessity was felt by the makers of the Constitution in incorporating provisions of preventive detention in the Constitution itself. While no doubt it is the duty of the court to safeguard against any encroachment on the life and liberty of individuals, at the same time the authorities who have the responsibility to discharge the functions vested in them under the law of the country should not be impeded or interfered with without justification [vide A.K. Roy v. Union of India : (1982) 1 SCC 271, Bhut Nath Mete v. State of West Bengal: (1974) 1 SCC 645 ; State of W.B. v. Ashok Dey: (1972) 1 SCC 199; ADM Jabalpur v. Shirakant Shukla (1976) SCC 521].
Subjective satisfaction being a condition precedent for the exercise of the power of preventive detention conferred on the executive, the Court can always examine whether the requisite satisfaction is arrived at by the authority; if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad."
[15] In Bhaurao Punjabrao Gawande (supra) the apex court has succinctly laid down the law that the court cannot go into correctness or otherwise of the facts stated or the allegations levelled in the grounds in support of detention. The court of law is 'the last appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based'. That, however, does not mean that the subjective satisfaction of the detaining Authority is wholly immune from judicial reviewability. By judicial decisions, courts have carved out areas, though limited, within which the validity of subjective satisfaction can be tested judicially. It has been also observed that an the order of detention can be challenged on certain grounds, such as, the order is not passed by the competent authority, condition precedent for the exercise of power does not exist; subjective satisfaction arrived at by the detaining authority is irrational, the order is mala fide, there is non- application of mind on the part of the Detaining Authority in passing the order; the grounds are, or one of the grounds is, vague, indefinite, irrelevant, extraneous, non- existent or stale; the order is belated; the person against whom an order is passed is already in jail; the order is punitive in nature; the order is not approved by State/Central Government as required by law; failure to refer the case of the detenu to the Board constituted under the statute; the order was quashed/revoked and again a fresh order of detention was made without new facts. Mr. Datta, learned PP has, therefore, submitted that the detenue has failed to make out any ground for interference by this court.
[16] In Biram Chand vs. State of U.P., reported in (1974) 4 SCC 573, the apex court had occasion to observe that a perusal of the grounds of detention shows that Crime No. 76/2006 of P.S. Mouda, District Nagpur was taken into consideration by the detaining authority for its subjective satisfaction. Now, in case the petitioner wants to make the representation to the detaining authority against the order of detention, he is required to disclose his defence which may cause prejudice to the petitioner in defending the criminal prosecution. In Biram Chand (supra), it has been held that if the authority concerned makes an order of detention under the Act and also prosecutes him in criminal case on self-same facts, the detaining authority cannot take recourse to two parallel and simultaneous proceedings nor can take re-course to a ground which is the subject matter of a criminal trial. Thus, on this ground also the impugned order of detention can be questioned. But in Haradhan Saha vs. State of West Bengal, reported in (1975) 3 SCC 198 the apex court has observed as under:
"34. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu.
The recent decisions of this Court on this subject are many. The decisions in Borjahan Gorey v. State of West Bengal : (1972) 2 SCC 550, Ashim Kumar Ray v. State of West Bengal : (1973) 4 SCC 76, Abdul Aziz v. District Magistrate, Burdwan and Ors.: (1973) 1 SCC 301 and Debu Mahto v. The State of West Bengal : (1974) 4 SCC 135 correctly lay down the principles to be followed as to whether a detention order is valid or not. The decision in Biram Chand v. State of Uttar Pradesh and Ors. reported in (1974) 4 SCC 573 which is a Division Bench decision of two learned Judges is contrary to the other Bench decisions consisting in each case of three learned Judges. The principles which can be broadly stated are these. First merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Cr.PC would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the CrPC and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behavior of a person based on his past conduct in the light of the surrounding circumstances." [Emphasis supplied]
[17] In Additional Secretary to the Government of India vs. Alka Subhash Gadia, reported in 1992 Supp (1) SCC 496 and N.K. Bapna vs. Union of India, reported in (1992) 3 SCC 512, the apex court has approvingly reproduced from Subhash Muljimal Gandhi vs. L. Himingliana, reported in (1994) 6 SCC 14, whre it has been observed as under:
"The above principles laid down in Alka Subhash Gadia : (1992) Supp (1) SCC 496, have been quoted with approval by another three-Judge Bench in N.K. Bapna v. Union of India: (1992) 3 SCC 512. Bound as we are by the above judgments, we must hold that the other contingencies, if any, must be of the same species as of the five contingencies referred to therein. Coming now to Mr. Jethmalani's submission, that the detention order was passed 'for a wrong purpose', namely, to harass and humiliate the appellant by concocting a false case of smuggling, based primarily on a confession obtained from him after subjecting to him to assault, illegal detention and extortion we find that the detaining authority has denied the allegations of assault and extortion. Needless to say these are disputed questions of fact, which we cannot entertain much less delve into or decide upon. In any case, the said fact, even if true cannot vitiate the order of detention." [Emphasis supplied]
[18] Mr. Datta, learned PP has submitted that the court while judicially reviewing the order of detention should not take up a mechanical review. On the contrary, the court should be conscious and mindful of the fact that this is a 'suspicious jurisdiction' i.e. jurisdiction based on suspicion and an action is taken with a view to preventing a person from acting in any manner prejudicial to certain activities enumerated in the relevant detention law. Interference by a court of law at that stage must be an exception rather than a rule and such an exercise can be undertaken by a Writ Court with extreme care, caution and circumspection. A detenu cannot ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the grounds in support of such order.
[19] True it is that the detenue has not raised any objection that he was not supplied with the copy of the report of the DGP, Tripura by which the DGP had proposed his detention. The detenue could not reveal any other materials which were considered by the detaining authority and/or by the Advisory Board and such documents were not supplied to him. In the grounds of detention, the detaining authority has clearly stated that as per report of the Director General of Police, Tripura, the detenue has been involved in the cases as referred and noted above. In the considered opinion of this court, in the circumstances non-supply of the report of the DGP, Tripura can hardly prejudice the detenue, inasmuch as the state-respondents have stated that the opinion of the DGP, Tripura is entirely based on 3[three] criminal cases as noted above. But the ground (iv) [which is distinct ground] that during investigation of Jirania PS case No.2020JRN002 dated 09.01.2020 under Sections 20(b)(ii)(C)/25/27A/20 of the NDPS Act, Call Details Report was collected. According to the detaining authority, from the CDR analysis of the mobile numbers used by the detenue, it has been established that he is closely associated with the members of the drug rackets. The said CDR analysis report has not been supplied to the detenue, but the said CDR analysis report was considered by the detaining authority. The detenue was entitled to such report inasmuch as that was relied by the detaining authority for forming one of the grounds for his detention on the allegation of illicit trafficking of narcotic drugs and substance. Non-supply of the CDR analysis report which forms a substantive material is considered prejudicial to the detenue in making the representation appropriately. Hence, the order of detention is liable to be set aside and quashed. The order of detention dated 16.06.2020 [Annexure-1 to the petition] and the final order confirming the detention for one year dated 05.08.2020 [Annexure-8 to the petition] stand consequently quashed and set aside.
The detenue be released forthwith, if not wanted in any other case.
In the result, this petition stand allowed and disposed of.