Ali Ahmed Laskar @ Bablu Mulla vs State Of Assam And 6 Ors

Soumitra Saikia, J

This writ petition is filed by the petitioner- Sri Ali Ahmed Laskar @ Bablu Mulla, assailing the order dated 17.07.2021 issued by the Secretary to the

Government of Assam, Home and Political Department, Dispur, Assam whereby the petitioner was directed to be taken into custody by detaining him

under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

The essential facts necessary for the present proceedings are that the petitioner was implicated in three cases, namely,

(i) Hailakandi P.S. Case No. 509/2020 under Section 21(b) of the NDPS Act, 1985,

(ii) Hailakandi P.S. Case No. 1151/2019 under Section 21(a) of the NDPS Act, 1985 and

(iii) Hailakandi P.S. Case No. 120/2017 under Section 21(b) of NDPS Act, 1985.

The petitioner claims that by the Judgment dated 28.08.2018 passed by the Special Judge, Hailakandi in Special (NDPS) (T-1) Case No. 02/2017

relating to Hailakandi P.S. Case No. 120/2017 under Section 21(b) of NDPS Act, 1985, the petitioner was acquitted. Insofar as the other two cases

are concerned, namely, (i) Hailakandi P.S. Case No. 509/2020 and (ii) Hailakandi P.S. Case No. 1151/2019, the petitioner is on bail. It is submitted

that insofar as Hailakandi P.S. Case No. 1151/2019 is concerned, which corresponds to Special (NDPS) Case No. 11/2019, the charge-sheet had

been filed and the matter has proceeded to trial. Insofar as the Hailakandi P.S. Case No. 509/2020 under Section 21(b) of NDPS Act, 1985

corresponding to Special (NDPS) Case No. 5/2020, the charge-sheet has not been filed till the date of filing of the writ petition.

The petitioner states that on 08.09.2021, he was taken into custody from his residence by the Officer-in-charge of Hailakandi Police Station without

furnishing grounds of detention. Subsequently, after about a week, the communication impugned in the present proceedings dated 17.07.2021 has been

served upon him.

The learned counsel for the petitioner submits that the impugned order dated 17.07.2021 pursuant to which the petitioner has been in preventive

detention is totally uncalled for and is not based on correct facts and, therefore, the impugned order is an abuse of the process of law and should

therefore be interfered with by this Court. It is submitted that a reference is also made in the impugned order that the petitioner has already been

acquitted by the Judgment dated 28.08.2018 passed by the learned Special Judge, Hailakandi in Special (NDPS) (T-1) Case No. 02/2017 which

corresponds to Hailakandi P.S. Case No. 120/2017. The learned counsel submits that in a case where the trial Court has acquitted the petitioner, the

same cannot be a ground on which the State can consider use of its power for preventive detention of the petitioner. The learned counsel for the

petitioner reiterates his submissions that the petitioner is already on bail in Special (NDPS) Case No. 11/2019 which correspondence to Hailakandi

P.S. Case No. 1151/2019 under Section 21(a) of the NDPS Act, 1985 wherein the charge-sheet has already been filed although the charges are yet to

be framed against the petitioner. Insofar as the third case is concerned, no charge-sheet has been filed till the time of filing of the writ petition. The

learned counsel for the petitioner submits that impugned order dated 17.07.2021 is ex-facie illegal inasmuch as the same is violative of the provisions

of 1988 Act itself as well as the provisions of Article 22 of the Constitution of India. That apart, the same is in conflict that the law laid down by the

Apex Court in a catena of decisions rendered in respect of preventive detention.

The learned State counsel has referred to the affidavit-in-opposition filed on behalf of the State and submits that all the mandatory provisions

prescribed under the Act has been scrupulously adhered to. Therefore, there is no infraction of any mandatory provisions and therefore, there was no

violation of any constitutional rights of the petitioner.

The learned Additional senior Government Advocate has urged that the grounds narrated in the order reveal that the preventive detention of the

petitioner is necessary because of his involvement in several Narcotic related matters and there is every likelihood that he will continue dealing with

such illegal and unauthorized activities under the NDPS Act. In order to prevent such nefarious activities, the petitioner has been detained under the

Act of 1988.

We have heard the learned counsels for the parties and have also perused the pleadings on record.

Under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, the appropriate Government is empowered, if it is

satisfied with a view to preventing the person from engaging in Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 and if it is

necessary to do, to make an order directing such person to be detained. Section 3 of the Act of 1988 is extracted below:-

“3. Power to make orders detaining certain persons.â€

(1) The Central Government or a State Government, or any officer of the Central Government, not below the rank of a Joint Secretary to

that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below

the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with

respect to any person (including a foreigner) that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and

psychotropic substances, it is necessary so to do, make an order directing that such person be detained.

(2) When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government

shall, within ten days, forward to the Central Government a report in respect of the order.

(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.

Under Section 9 of the said Act, an Advisory Board is required to be constituted for the purposes of rendering an opinion as to whether a person

detained by the authority concerned requires further preventive detention. The provisions of Section 9 is also extracted below:-

“9. Advisory Boards.â€" For the purposes of sub-clause (a) of clause (4) and sub-clause (c) of clause (7) of article 22 of the

Constitution,â€

(a) the Central Government and each State Government shall, whenever necessary, constitute one or more Advisory Boards each of which

shall consist of a Chairman and two other persons possessing the qualifications specified in sub-clause (a) of clause (4) of article 22 of the

Constitution;

(b) save as otherwise provided in section 10, the appropriate Government shall, within five weeks from the date of detention of a person

under a detention order, make a reference in respect thereof to the Advisory Board constituted under clause (a) to enable the Advisory

Board to make the report under sub-clause (a) of clause (4) of article 22 of the Constitution;

(c) the Advisory Board to which a reference is made under clause (b) shall after considering the reference and the materials placed before

it and after calling for such further information as it may deem necessary from the appropriate Government or from any person, called for

the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to

do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in a separate

paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same

within eleven weeks from the date of detention of the person concerned;

(d) when there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall

be deemed to be the opinion of the Board;

(e) a person against whom an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in

any matter connected with the reference to the Advisory Board and the proceedings of the Advisory Board and its report, excepting that

part of the report in which the opinion of the Advisory Board is specified, shall be confidential;

(f) in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the

appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit

and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person

concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith.

The law relating to preventive detention has been elaborately dealt with by the Apex Court in a catena of judgments rendered. In the case of

Khaja Bilal Ahmed â€"Vs- State of Telangana and Ors., reported in (2020) 13 SCC 632, the Apex Court while dealing with a preventive detention

made under the Telangana Offenders Act, 1986 has held that:-

“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.

The Apex Court held that the detaining authority must be satisfied that the person detained is likely to indulge in illegal activities in future and act in

a manner prejudicial to the maintenance of public order. The satisfaction to be arrived at by the detaining authority must not be based on irrelevant or

invalid grounds, it must be arrived at on the basis of relevant material and the material which is not stale and has a live link with the satisfaction of the

detaining authority. The Apex Court held that the order of the detention may refer to previous criminal antecedence only if they have direct nexus or

link with immediate need to be detained individual. While interpreting Section 3 of the said Act, the Apex Court held that in the absence of clear

indication of a casual connection, a mere reference to the pending criminal cases cannot account for the requirements of Section 3. It is not open to

the detaining authority to simply refer to stale incidence and hold him as a basis of an order of detention. Such stale material will have no bearing on

the probability of the detuning of engaging in prejudicial activities in future. The Apex Court with reference to Section 3 of the said Act of 1988 further

held that if on receipt of the Advisory Board’s report, the Government wants to continue the detention for a further period it has to take a decision

to confirm that order and continue the detention, for without such order or decision, the detention would not validly subsist beyond the period of three

months. The relevant paragraph of the said judgment is extracted below:-

“The purpose of the Telangana Offenders Act, 1986 is to prevent any person from acting in a manner prejudicial to the maintenance of

public order. Section 3 prescribes that the detaining authority must be satisfied that the person to be detained is likely to indulge in illegal

activities in the future and act in a manner prejudicial to the maintenance of public order. The satisfaction to be arrived at by the detaining

authority must not be based on irrelevant or invalid grounds. It must be arrived at on the basis of relevant material; material which is not

stale and has a live link with the satisfaction of the detaining authority. The order of detention may refer to the previous criminal

antecedents only if they have a direct nexus or link with the immediate need to detain an Individual. If the previous criminal activities of the

appellant could indicate his tendency or inclination to act in a manner prejudicial to the maintenance of public order, then it may have a

bearing on the subjective satisfaction of the detaining authority. However, in the absence of a clear indication of a causal connection, a

mere reference to the pending criminal cases cannot account for the requirements of Section 3. It is not open to the detaining authority to

simply refer to stale incidents and hold them as the basis of an order of detention. Such stale material will have no bearing on the

probability of the detenu engaging in prejudicial activities in the futureâ€​. (Para 23)

In V. Shantha â€"Vs- State of Telangana and Ors., reported in (2017) 14 SCC 577, the detenu therein was classified as “goonda†affecting

public order because of in adequate yield of chilli seed sold by him and was detained under the Telangana Prevention of Dangerous Activities of

Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986. The detention order even prevented him

from moving for bail. The Apex Court held that such order is a gross abuse of statutory power of preventive detention and the grounds of detention

were held to be ex-facie extraneous to the Act. Paragraph 10 of the said Judgment is extract below:-

“10. An order of preventive detention, though based on the subjective satisfaction of the detaining authority, is nonetheless a serious

matter, affecting the life and liberty of the citizen under Articles 14, 19, 21 and 22 of the Constitution. The power being statutory in nature,

its exercise has to be within the limitations of the statute, and must be exercised for the purpose the power is conferred. If the power is

misused, or abused for collateral purposes, and is based on grounds beyond the statute, takes into consideration extraneous or irrelevant

materials, it will stand vitiated as being in colourable exercise of powerâ€​.

A perusal of the provisions of the Act of 1988 as well as the judgments rendered by the Apex Court in respect of preventive detention reveals that

the detenu must be furnished with all relevant documents and records which have been found to be the basis of the satisfaction arrived at by the

authority for detention of the person under the preventive detention. Secondly, the detenu must be informed of his rights to make his representation

before the appropriate authority which could be the State Government or the Central Government or even the Advisory Board at the earliest and in

order to enable the detenu to effectively make his representation, the records and the materials and the documents which were before the appropriate

authority when it recorded its satisfaction for keeping the detenu under the preventive detention, should also be forwarded along with the order of the

detention to the detenu. The third principle is that the mandate of the concerned Act under which the person is kept under preventive detention must

be scrupulously followed.

Under sub-Section 2 of Section 3 under which the petitioner is detained, it is provided that when an order of detention is made by the State

Government or by the Officer empowered by the State Government, the State Government shall within 10(ten) days forward to the Central

Government a report in respect of the said order. That apart, under Section 9 clause (f) of the said Act, it is provided that in every case where the

Advisory Board is of the opinion that there are sufficient causes for detention of a person, the appropriate Government may confirm the detention

order and continue the detention of the person concerned of such period as it thinks fit. Where the Advisory Board is of the opinion that there is no

sufficient cause for detention of the person concerned, the appropriate Government shall revoke the detention order.

The mandate of these two sections require firstly the Government to furnish a report to the Central Government where the detenu is detained by

the State Government or Officer authorized by the State Government and such report is required to be made within 10(ten) days from the date of

detention. The requirement under Section 9(f) of the Act is that where the Advisory Board renders its opinion that there are sufficient grounds for

further detention, the detention order is required to be confirmed by the State Government. In the counter affidavit filed, there are no specific

pleadings in respect of these two safeguards mandated under the Act under Section 3(2) and Section 9(f) of the Act of 1988. The State authorities

have not stated in their counter affidavit as to whether the report as required under Section 3(2) has been sent to the Central Government. Further as

required under Section 9(f) of the Act after the opinion of the Advisory Board advise further detention of detenu, the order of detention of the detenu

is required to be confirmed by the appropriate authorities. However, no such statement or reference to any such order passed is found to be stated in

the counter affidavit. In fact the opinion of the Advisory Board is also not brought on record through the counter affidavit filed although the learned

State counsel has subsequently submitted a copy of the same before the Court during the course of the hearing.

The Judgments of the Apex Court have consistently held that procedural safeguards which are provided for in respect of preventive detention, be

it under Article 22 of the Constitution of India or under the specific provisions of the Act of 1988 under which the person is detained, will have to be

scrupulously followed by the authorities. These procedural safeguards are enacted to prevent misuse and/or abuse of the process of law while

exercising the powers made available to the State authorities in respect of the preventive detention. As such, the authorities can direct preventive

detention and/or direct further continuance of preventive detention of any detenu subject to fulfillment of the procedural safeguards mandated by law

to weed out any possibility of abuse of the process of the law and violation of the rights of the detenu granted under the Constitution of India. Any

detention order passed in violation of these provisions will have to be treated as unlawful exercise of the powers by the authorities concerned and,

therefore, it will have to be interfered with accordingly.

As discussed above, the failure of the Department to send a report as mandated under Section 3(2) to the Central Government within 10(ten) days

as well as the mandate of Section 9(f) for confirmation of an order under the Act of 1988 will have to effect of rendering the detention of the

petitioner to be in complete violation of the mandate of law prescribed. Since the petitioner’s detention is in violation to the above provisions, the

same will have to be held to be ex-facie illegal and in violation of his constitutional rights.

Accordingly, the impugned order dated 17.07.2021 issued by the Secretary to the Government of Assam, Home and Political Department, Dispur,

Assam is interfered with, set aside and quashed.

The petitioner is directed to be released forthwith from the detention made under impugned order dated 17.07.2021 which has been set aside.

The writ petition is accordingly allowed and disposed of in terms of the above. No order as to cost.