Full Text
HIGH COURT OF DELHI
JUDGMENT
NAUSHAD ALI THROUGH PEROKAR SAHAJAD ALI..... Petitioner
Through: Ms. Priyanka Kapoor, Ms. Smriti Asmita, Advocates.
Through: Mr. Ajay Digpaul, CGSC with Mr. Kamal R. Digpaul and Mr. B.S.
Meena, Under Secretary, PITNDPS Cell for UOI.
Mr. Subhash Bansal, Sr. Standing Counsel (NCB) with Mr. Shashwat Bansal, Advocate for respondent/NCB.
HON'BLE MS. JUSTICE SHALINDER KAUR
1. Under assail is the preventive detention order dated 25.02.2022 issued by the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Cell [in short “PITNDPS Cell”], under Section 3(1) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 [in short “PITNDPS Act”] and confirmed by Central Government, fixed the period of detention of one year from the date of detention i.e, 25.02.2022 under the provisions of Section 9(6) of PITNDPS Act so as to prevent the petitioner from engaging in illicit trafficking of Narcotics Drugs and Psychotropic Substances in future. Detention order and proceedings therein:-
2. After passing of the detention order F. No. U-11011/03/2022- PINTNDS dated 25.02.2022 by Mr. Ravi Pratap Singh, Joint Secretary, Government of India, Ministry of Finance, Department of Revenue (PITNDPS Unit), Sh. Naresh Kumar Deputy Secretary (PITNDPS Unit) informed Director General of Police, Uttarakhand, Dehradun to take immediate necessary action to serve the detention order upon Naushad Ali S/o Late Noor Hasan R/o Bahari Kila, Kasba-Landhora Teh-Roorkee, District-Haridwar (Uttrakhand). The said communication also contained other directions with respect to the detention of the petitioner. On 25.02.2022, the Joint Secretary had also formulated the grounds on which detention order had been issued to the petitioner wherein he specifically mentioned that he had gone through the facts and other material presented by the sponsoring authority, Narcotics Control Bureau ((hereinafter referred as „NCB‟), Sub Zonal Unit, Dehradun.
3. The facts submitted before the Joint Secretary are as under:
4. On 31.01.2021, at around 19:30 hrs, an information was received by NCB Dehradun, from Drug Inspector, Haridwar that they had recovered a significant number of medicines restricted under NDPS Act from M/s Shaad Medical Store, Landhaura, Roorkee and detained one person namely Naushad Ali. The case was to be handed over to NCB for further investigation. Thereafter a team of officers from NCB reached the Police Station Kotwali, Mangalour at around 22:30 hours. The Drug Inspector handed over the petitioner and the recovered narcotic drugs along with a detailed inspection report to NCB at Police Station Kotwali. Drug Inspector disclosed that at the time of search of Shaad Medical Store, the petitioner failed to produce a stock register and sale bills of the drugs. The report further disclosed that huge quantities of narcotic drugs and psychotropic substances were recovered from the possession of the petitioner which was in contravention of Section 8 of the NDPS act punishable under Section 22/ 27A/29 of NDPS Act, the details of which are reproduced below:-
┌───────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┐ │ Sl. Narcotic Drugs/Psychotropic Substances/Controlled Quantity (Kgs.) │ │ No. Quantity Substances/Conveyances │ ├───────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┤ │ 01. Buprenorphine Injection I.P.2ml each 875 Injections │ │ 02. Phenergan Injection (Promethezone), 2ml each 900 Injections │ │ 03. Diazepam Injection I.P 2ml each 3900 Injections │ │ 04. Tramadol HCL 2ml each 790 tablets │ │ 05. Tramadol HCL+Peracetamol USP 37.5+325mg Tramadol 1950 tablets │ │ 06. HCL Injection 100mg 2ml each 395 Injections │ │ 07. Tramadol HCL Actaminophen and Dicyclomine HCI 7920 Capsules │ │ Capsules │ │ 08. Tramadol HCL and Aeetaminophen Tablets USP 5280 Tablets │ │ (37.5+325mg) │ │ 09. Pentazocine Lactate Injections I.P 2ml each 88 Injections │ │ 10. Tramadol HCL, Tablets Sp-100 SR (100mg) Batch no-T- 28000 tablets │ │ 11. Triprolidine Hydrochloride and Codeine Phosphate 2389 Bottles │ │ (125+10mg Syrup) │ │ 12. Tramadol HCL, Tablets SP-100 SR (100 mg) Batch No-43 6,04,500 tablets │ │ 5. Voluntary statement of petitioner was recorded under Section 67 of │ │ the NDPS Act. Based on the recovery of the narcotic drugs and psychotropic │ │ substances and acceptance by the petitioner of his involvement in trafficking │ │ of the same, on 01.02.2021, he was arrested by NCB officers. During the │ │ investigation, it was revealed that petitioner is a proprietor of Shaad Medical │ │ Store and Kenway Pharmaceuticals Pvt. Ltd. and had been involved in the │ │ illegal/trafficking business of medical medicines covered under NDPS Act. │ │ Details were further obtained with respect to the other cases pending against │ │ the petitioner under NDPS Act and a letter dated 26 March 2021 was sent to │ └───────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┘
13. To proceed the arguments further, the learned counsel submitted that the petitioner has been falsely implicated in Case Crime No. 3/2021 by one Mr. Dilshad Khan, who is one of the informers of NCB. Due to personal animosity, as the petitioner was involved in a dispute with Mr. Khan regarding settlement of accounts for the medicines purchased by petitioner from Mr. Khan, he got him falsely implicated in the said case. On an earlier occasion, Mr. Khan had threatened the petitioner that he would get him implicated in false cases. Due to the said threat, the petitioner and his brother had filed complaints against Mr. Khan before SSP, Roshanabad, Haridwar and to various other authorities. However, no action had been taken by any of the authorities in the said complaints.
14. It was submitted that apart from aforesaid lapse, the detention order perse is illegal and liable to be quashed on the face of it. Also, the learned counsel while placing reliance on the case of Pramod Singla v. Union of India & Ors; 2023 SCC OnLine SC374 submitted that as preventive detention laws are extremely powerful laws, the Court must analyze such cases with extreme caution and ensure every procedural rigidity must be followed in entirety by the Government and the benefit of every lapse should be given to the detenue. It was submitted that detention order is liable to be set aside even after expiry of the period of detention, if the same does not confirm in rigidity to the procedure.
15. The contentions on behalf of the petitioner were strongly confuted and debated by learned counsels for the respondents. It was submitted that during investigations of the three FIRs registered against the petitioner, it came to light that he was involved in illegal trafficking of business of sale of medicines covered under NDPS Act. Prior to arrest of petitioner in FIR NO. 3/2021 under Sections 22(C)/27(A)/29 of the NDPS Act, registered at Police Station Kotwali, Mangalore, District Haridwar, two more FIRs i.e., FIR NO. 233/20 under Section 22C/27A/29/61/85 NDPS Act dated 24.09.2020 at PS Ratia, Fatehabad, Haryana and FIR No. 297/20 under Section 22C/27A/29/61/85 NDPS Act dated 25.10.2020, PS Tohana, Fatehabad, Haryana were registered against him. A proposal dated 11.01.2022 from sponsoring authority was received by the respondents, which was forwarded to the Screening Committee on 18.01.2022. After considering the proposal, Screening Committee in its meeting held on 22.02.2022, recommended the proposal as fit for preventive detention of petitioner. Accordingly, an order of detention dated 25.02.2022 was issued.
16. It was submitted that there was no violation of procedure in conducting raid at the premises of petitioner on 31.01.2021. The narcotic drugs were seized by NCB, Dehradun in presence of two independent witnesses and the official of NCB also showed their identity cards to the petitioner as well as to the independent witnesses. The detention proceedings were initiated against the petitioner after taking note and examining all the facts and circumstances, thereafter the detention order was issued against him. The learned counsel refuted the argument that detention order is bad in law and needs to be quashed.
17. Prior to venturing to decide the issue as to whether, there is violation of fundamental rights of the petitioner and contravention of statutory provisions rendering the detention order illegal, it is necessary to consider the purpose and ambit of preventive detention laws.
18. The main purpose of preventive detention laws is to prevent individuals from engaging in activities that are considered prejudicial to State security or maintenance of public order which by itself is not considered an infringement of any of the fundamental rights of a detenue. However, preventive detention is subject to the limitation provided in Article 22(5) of the Constitution of India. Thus, striking a balance between the need for national security and protection of individual rights has always remained a challenge for the Courts. The fundamental rule is, whenever there is deprivation of any of the fundamental rights mentioned in Part III of the Constitution, the authorities responsible for this must satisfy the Court that it has acted within the purview of law. In certain cases, it may be necessary for detaining a person without trial, such cases require strict observance of the rules as the use of preventive detention is a sensitive issue and there have been concerns about its potential misuse thereby invading personal liberty. Delay in execution of the Order of Detention
19. Multiple submissions have been made on behalf of the petitioner challenging the justifiability of the impugned detention order. One of the main concerns of the petitioner, is that respondents executed the detention order after about a period of 9-10 months since his release on bail which vitiates the purpose of the detention laws, clearly exhibiting that the grounds for the detention of the petitioner were false.
20. It was contended that there is a clear distinction between preventive detention of a detenue and criminal prosecution of an accused. The legal qualification of preventive detention laws are to be interpreted strictly. It is to be ensured that preventive detention is not used as an added tool to curtail judicial decisions allowing bail to a person. Reliance is placed on judgments Haradhan Saha v. The State of West Bengal & Ors. (1975) 3 SCC 198 and Heisnam Chaoba Singh v. Union of India & Ors; 2021 SCC OnLine Cal 2691.
21. Be it noted, the detention order was passed on 25.02.2022, however the petitioner was detained on 23.05.2023, there has been an apparent myriad delay in arresting the petitioner after of passing the order of detention. The law is well settled that an unreasonable and unexplained delay in executing and detaining a detenue will vitiate the detention order, unless the said delay is sufficiently explained by the detaining authority. The Hon‟ble Supreme Court through its various judgments has laid down, if a detenue satisfies the court that there has been an unexplained delay in detention after passing of the detention order, then such an order will be interpreted as breaking the „live-proximity link‟ in between the event of detention and passing of detention order.
22. The postulation of „live and proximity link’ has been explained by Hon‟ble Supreme Court in the following cases-
23. In S. K. Nizamuddin v. State of West Bengal; (1975) 3 SCC 395, the necessity of securing the arrest of the detenu immediately after the order of detention has been examined by Hon‟ble Supreme Court and it was held as under: "It would be reasonable to assume that if the District Magistrate was really and genuinely satisfied after proper application of mind to the materials before him that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner, he would have acted with greater promptitude in securing the arrest of the petitioner immediately after the making of the order of detention, and the petitioner would not have been allowed to remain at large for such a long period of time to carry on his nefarious activities. Of course when we say this we must not be understood to mean that whenever there is delay in arresting the detenu pursuant to the order of detention, the subjective satisfaction of the detaining authority must be held to be not genuine or colourable. Each case must depend on its own peculiar facts and circumstances. The detaining authority may have a reasonable explanation for the delay and that might be sufficient to dispel the inference that its satisfaction was not genuine."
24. In Bhawarlal Ganeshmalji v. State of Tamil Nadu; (1979) 1 SCC 465, the Hon‟ble Supreme Court has observed as follows:- "It is further true that there must be a "live and proximate link" between the grounds of detention alleged by the detaining authority and the avowed purpose of detention namely the prevention of smuggling activities. We may in appropriate cases assume that the link is "snapped" if there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu. In such a case, we may strike down an order of detention unless the grounds indicate a fresh application of the mind of the detaining authority to the new situation and the changed circumstances. But where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenue in avoiding arrest there is warrant to consider the “link” not snapped but strengthened.”
25. In T.A Abdul Rahman v. State of Kerala, AIR 1990 SC 225 – The Hon‟ble Supreme Court emphasized that “determining the proximity of prejudicial activities to the time of issuing a detention order depends on the specific facts of each case. There is no strict rule or fixed timeline, and the test of proximity is not merely a mechanical calculation of months. However, undue and prolonged delays between prejudicial activities and the detention order or between the order and the detenu's arrest warrant scrutiny. In such cases, the court must assess the detaining authority's satisfactory explanation for the delay and ensure that the causal connection between the activities and the detention remains intact in each instance.”
26. It would be manifest from the above decisions that when „live and proximity link’ between the passing of detention order and arresting the detenue is mangled, it will render the detention order invalid unless such delay is satisfactorily explained. Whether, the delay is reasonable and well explained will depend on the facts and circumstances of each case.
27. Now we proceed to examine the issue, whether, the snapping of “live and proximity link” in the present case has been reasonably explained by the respondents or not.
28. The respondents have indicated that after passing of the detention order, they had ordered for its immediate compliance but since the petitioner was absconding and was hiding himself for more than a year, the respondents could not initiate the detention proceedings against him. Respondents tried to secure his presence by conducting raids and keeping a watch outside the Court of Special Judge, NDPS, Roorkee where Case Crime No. 3/2021 was pending. In the said proceedings, his NBWs were issued as the petitioner had failed to appear even before the Court. Further, as the petitioner was not traceable, a Gazette Notification under Section 8(1)(b) of the PITNDPS Act was got issued on 08.09.2022 requiring the petitioner to appear before the Director General of Police, Uttarakhand and a Look Out Notice was also issued against him after making number of attempts by NCB as well as State Police to locate him.
29. It was submitted that from the conduct of the petitioner, it is apparent that the petitioner knew about detention order being operating against him, therefore, he absconded to avoid execution of the same and when the pressure of arrest mounted upon him, the petitioner filed an application for surrendering before the Court at Roorkee, which was rejected.
30. It was vehemently submitted that the petitioner being an absconder cannot take the benefit of “live proximate link”. It was due to the conduct of the petitioner that the detention order could not be executed although the NCB made serious efforts to trace him. Reliance placed on the case of Addl. Secy. To the Govt. of India v. Alka Subhash Gadia (Smt.); 1992 Supp (1) SCC 496.
31. The learned counsel for the petitioner in rebuttal negated the submissions of the respondents and contended that issuance of a notification in official gazette is an internal arrangement about which the petitioner had no knowledge. The proceedings to declare the petitioner, a proclaimed offender were not initiated by the respondents so as to declare him an „absconder‟. Therefore, to say the petitioner was absconding is contrary to the law. If the respondents were serious to serve the detention order, they could have done so by providing a copy of the order to the advocates of the petitioner who were regularly appearing in the courts where his cases were listed. Moreover, for securing a copy of the preventive detention order, an RTI application was made by the petitioner via letter dated 20.07.2022 before the PIO, STF, Dehradun, Uttarakhand on 21.07.2022. However, copy of detention order was refused to him vide reply dated 30.08.2022. The petitioner had filed a surrender application in March 2022, in the court, whereas, he was detained in May 2023 in clear violation of his fundamental rights.
32. Insofar as the above submissions are concerned, we also examined the original records which were placed before us. From the records, we find that the Additional Director General of Police had submitted a compliance report to the Under Secretary, PITNDPS Division, Department of Revenue, Ministry of Finance with respect to the execution of detention order of the petitioner vide written communication dated 08.07.2022. In the said report, it has been specifically mentioned that the NCB had conducted multiple raids at various places to trace the petitioner, but he was not to be found after being released on bail. Written communication further shows that on 03.03.2022, a joint raid of STF/ADTF Haridwar and NCB Dehradun was conducted at the residence and medical store of the petitioner Naushad Ali who was not found to be present at the aforementioned locations. Efforts were made to arrest him on the basis of location of his mobile number but the same was not traceable as was found continuously switched off since 03.02.2022. Thereafter, on 06.03.2022, the aforementioned team conducted a raid at petitioner‟s in-laws place, but the petitioner was not found available there, a house search memo was prepared by the police for the raid. Thereafter, on 07.03.2022, a search operation for the arrest of the petitioner was again conducted by the same team at the probable locations in and around the areas surrounding the place of inhabitation of in laws of petitioner, but no information could be gathered about him. On 12.03.2022, the STF/ADTF received information that the petitioner was using another mobile number. On the basis of said information, a raid was conducted at the address of the person in whose name the said mobile number was registered but the petitioner was not found to be present there. The raiding team was informed that the petitioner was a relative of the said person and had come to see him few days ago but had left his house. On the basis of the statement of the said person, the STF/ ADTF team conducted a search operation in nearby areas but the petitioner could not be arrested. Kotwali, Muzaffarpur, Uttar Pradesh was also informed of the detention order of the petitioner for necessary action.
33. The report, further states that on 15.03.2022, the STF/ADFT team conducted search operation in and around the surrounding BT Ganj, Gang Nahr, Roorkee for arrest of the petitioner but he could not be traced there also. The report details that the STF/ADTF received an information that there was a possibility of petitioner of escaping to a foreign nation pursuant to which on 23.03.2022, the team forwarded a report to Director, NCD Dehradun regarding issuing a look out circular for petitioner. On 24.03.2022, Bureau of Immigration issued a look out circular for the petitioner. Furthermore, the petitioner also stopped appearing before the Court of Special Judge, NDPS, Roorkee. The Court had set dates i.e. 31.03.2022, 13.04.2022, 18.04.2022 and 13.05.2022, for appearance of the petitioner in the Court in relation to the case Crl. No. 03/2021 filed by the NCB, Dehradun, but on account of non-appearance of the petitioner on the aforementioned dates, the Court had issued his NBWs to secure his presence.
34. As per report, the Uttarakhand Police/ STF‟s drives for the arrest of the petitioner were not successful. Pertinently, the respondents further invoked the provision of Section 8(1)(b) of the PITNDPS Act by ordering for a Notification in Official Gazette directing appearance of absconding petitioner to secure his presence before Director General of Police, Uttarakhand.
35. It is not disputed that, in the meanwhile, on 08.03.2022, the petitioner had filed a surrender application before the Court of ADJ Ist, Special Judge, NDPS, Roorkee, apprehending undue arrest and harassment and use of third degree method against the petitioner, which was rejected by the Court.
36. In view of the above, the respondents have satisfactorily explained the non-execution of detention order against the petitioner after passing of the order on 25.02.2022. The delay of about 15 months is clearly attributable to the petitioner who has avoided the service of the detention order on him by concealing his presence. Therefore, we find ourselves unable to sustain the submission of the petitioner that test of proximity with respect to the issuance of detention order and detention of the petitioner in the present case has not been met by the respondents. However, the respondents have validly explained the delay in execution of the detention order.
37. We may observe here, the petitioner seriously defaulted by not making himself available to allow the service of detention order on him. The contention of the petitioner that he was trying to secure the grounds of detention through RTI is fallible as petitioner may not have got copy of the detention order and documents unless he submitted to the order of detention or would not have concealed his presence.
38. Looking from another prospective, since the detention order has been executed beyond the period of detention (one year) on account of delay of about 15 months from the date when it was passed, undisputedly, the issue with respect to „live and proximity link‟ has emerged.
39. We, thus, proceed to examine the issue, whether the detention order is liable to be quashed on this count. The learned counsels for the respondents submitted that an „absconder‟ cannot take advantage of such a situation which will result in anomalous situation, whereby, any proposed detenue will defeat detention order against him by first simply escaping and then challenge its validity on the test of „live and proximity link‟. Supplementing the submissions, reference to the case of Subhash Popatlal Dave v. Union of India & Anr.; (2014) 8 SCC 280 is made.
40. In the aforesaid case, the question arose before the Hon‟ble Supreme Court, whether a detention order can be quashed merely because there is a long delay in execution of detention order beyond the period of detention and whether detention order can be quashed at pre-execution stage because of delay in implementing it. The Hon‟ble Supreme Court examined the issue in detail and observed as under:-
48. In due consideration of the above laid principles of law and reverting back to the detention order, it is observed that the Joint Secretary on 25.02.2022, while passing the detention order against the petitioner and dealing the grounds of detention, considered the various reports filed by the authorities providing the details of distributors of 12 kinds of drugs seized from the medical stores of the petitioner. It is not disputed that the petitioner possessed a valid licenses to purchase, store and sell drugs according to conditions of the license but he misused the licenses by selling some drugs for which he could not produce valid sale bills. It was found that recovered and seized drugs from the premises of the petitioner were in huge quantity and for the quantity of drugs sold by him, he failed to produce sale bills, for which the petitioner was found to be in illegal/trafficking business of medicines covered under NDPS Act, which are as under:-
┌──────────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┐ │ Sl. Name of the Drug Number Supplied Number Bills not │ │ No. Seized produced. │ ├──────────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┤ │ 1. Tripolidine 2500 Bottles 2389 bottles 111 bottles │ │ Hydrochloride & │ │ Codine Phasphate 100 │ │ ml │ │ 2. Tramadol 600 strips 195 strips 405 strips │ │ Hydrochloride & │ │ Peracetamol Tablets │ │ 3. Ampoules of 500 395 105 │ │ Tramadol │ │ Hydrochloride │ │ Signature Not Verified │ │ Digitally Signed W.P.(CRL) 2778/2023 Page 22 of 31 │ │ By:NEELAM │ │ Injections │ │ 4. Tramawin Injections 1500 790 710 │ │ 5. Dizepam Injections 13400 3900 9500 │ │ 6. Pentazocine Lactate 2000 88 1912 │ │ Injection │ │ 7. Tramadol 6600 5280 1320 │ │ Hydrochloride and │ │ Acetaminophen │ │ Tablets │ │ 8. Actaminophen & 28800 Capsules 7920 20880 │ │ Dicyclomine HCL Capsules │ │ Capsules │ │ 49. The Joint Secretary considered the report of CRCL, New Delhi, two │ │ FIRs registered at Police Station Ratia, Fatehabad, Haryana and Police │ │ Station Tohana, Fatehabad, Haryana. │ │ 50. It is clear from the grounds of detention that the Joint Secretary after │ │ going through the entire facts and circumstances of the information/material │ │ produced before him, in view of the cases registered against the petitioner, │ │ came to the conclusion that the petitioner was involved in trafficking of │ │ Narcotic Drugs and Psychotropic Substances many a times and is habitual │ │ offender. He also considered the fact that the petitioner had filed a bail │ │ petition before Special Judge NDPS, Roorkee on 11.02.2021 which was │ │ rejected, however, the petitioner was granted bail by the High Court of │ │ Uttarakhand on 21.05.2021. On finding overwhelming evidence available │ │ on record against the petitioner, the Joint Secretary concluded that the │ │ petitioner indulged in illicit trafficking of Narcotic Drugs and Psychotropic │ │ Substances as well as a high propensity to engage in this illicit activity, thus, │ │ conclusively felt that the petitioner is required to be detained under Section │ │ 3(1) of PITNDPS Act. │ │ 51. It was submitted on behalf of the respondents that the petitioner could │ │ not produce the sale bills even during the course of investigation after the │ │ Signature Not Verified │ │ Digitally Signed W.P.(CRL) 2778/2023 Page 23 of 31 │ │ By:NEELAM │ │ raid was conducted at his premises. Moreso, the activities of the petitioner │ │ were not localised to Nainital only. To the contrary, it had spread to │ │ Haryana where in two FIRs registered in two different police stations, he │ │ was also one of the accused person though he was subsequently released on │ │ bail and the proposal for detention was promptly considered by the detaining │ │ authority. It is true that the petitioner appeared to be involved in unexplained │ │ sale of drugs, its misuse could be unbridled leading to public disorder. │ │ 52. After going through the grounds set out by the Joint Secretary on │ │ which the detention order is based, it is clear in our mind that the detaining │ │ authority had formulated the requisite „subjective satisfaction‟ before │ │ passing the detention order against the petitioner. │ │ 53. Further, the arguments raised on behalf of the petitioner is meritless │ │ that the petitioner had not flouted any condition of bail. Admittedly, after │ │ being released on bail, the petitioner absconded and NBWs were issued by │ │ the Special Judge, NDPS, Roorkee, to secure his presence. The NCB had to │ │ issue a gazette notification against him being an absconding person and │ │ further got issued a Look Out Circular for him as he attempted to flee from │ │ the country. │ │ 54. From his own admission, it is further clear that the petitioner was │ │ aware about the detention order having been passed against him as he had │ │ applied for its copy through RTI on 20.07.2022, still he was not making │ │ himself available for submitting to the detention order for further procedure │ │ to be followed, to the contrary he compromised with the bail conditions and │ │ thereby absconded. Such a situation resounds the principles of law laid │ │ down in the case of Bhawarlal Ganeshmalji v. State of Tamil Nadu │ │ (supra) observing:- │ │ Signature Not Verified │ │ Digitally Signed W.P.(CRL) 2778/2023 Page 24 of 31 │ └──────────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┘
55. It was next submitted that the delay in issuing the detention order emphasises that there was no proximity between the prejudicial activities and the detention order. In the matters of depriving personal liberty, the authority is obliged to act swiftly and diligently. Therefore, there is a valid ground for quashing the detention order as there was a long gap when the last FIR was registered against the petitioner and when the detention order was issued against him. To consolidate the argument, learned counsel placed reliance on the case of Pradeep Nilkanth Paturkar v. S. Ramamurthi & Ors; 1993 Supp (2) SCC 61.
56. The position of law is settled that each case is to be decided on the facts and circumstances appearing in that particular case depending on nature of acts relied on, grave and determined or less serious and corrigible, on the length of the gap short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. The case of Pradeep Nilkanth Paturkar v. S. Ramamurthi (supra), relied upon by learned counsel being in factual context of the case is not applicable to the facts of the present case. In the aforesaid case, the detenue was granted bail in all the cases on the very same day of his arrest or the registration of cases. Moreover, the statement of witnesses were obtained only after detenue was released on bail which were referred before the detaining authority and relied upon by it.
57. In the present case, it is revealed that enquiries were made by the authorities from various Distributors of the drugs with respect to drugs seized from the premises of the petitioner to assess the source and quantity of drugs supplied to the petitioner and only after receiving their responses, the sponsoring authority could gather about the actual quantity of drugs purchased by the petitioner from a particular distributor of drugs and subsequently the quantity of drugs sold by the petitioner without sale bills, moreso, when the petitioner could not produce any stock register also.
58. Therefore, the efforts made by the detaining authority cannot be undermined in collecting the entire information which would have taken considerable time keeping in mind the huge quantity of seized drugs and list of Distributor as mentioned in the detention grounds. Pertinently, the petitioner was lastly granted bail as per the Bail Order dated 20.09.2021 of the High Court of Punjab and Haryana. The sponsoring authority had sent the proposal to the respondents on 11.01.2022 for initiating the preventive detention of the petitioner. The said proposal was promptly considered by the Screening Committee and vide its meeting held on 22.02.2023, recommended the proposal as fit for preventive detention of the petitioner. Therefore, in the given circumstances, there is no exceptional delay in passing the detention order. Thus, we do not find merit in the submissions advanced on behalf of the petitioner that passing of detention order suffered the vice of delay.
59. It is worth to mention, during the course of arguments, it was contended on behalf of the petitioner, that the learned counsel was not pressing the issue that grounds of detention were not explained to the petitioner in Hindi which is the only language known to the petitioner so the detention order was invalid. It was admitted that the petitioner being 12th pass has knowledge of the English language also. Delay in providing a copy of the detention order and consequences thereof.
60. The next argument placed before us on behalf of the petitioner is that immediately on his surrender, the petitioner was not served with a copy of the detention order which was only handed over to him while he was already in custody. A serious objection was raised about non compliance of Section 3(3) of the PITNDPS Act by submitting that the petitioner was first detained and then a copy of the detention order was supplied to him. Further, the petitioner was not informed regarding his right to make a representation. Reliance was placed on State of Bombay v. Atma Ram Shridhar Vaidya; 3 (1951) SCR 167.
61. In this regard, it is worth to consider the provisions of Article 22(5) of the Constitution which confers two rights on the detenue, firstly, the right to be informed of the ground on which order of detention succeeded and secondly to be yielded an earliest opportunity to make a representation against the detention. It is also necessary to note Section 3(3) of the PITNDPS Act, which is reproduced hereinbelow:- “For the purposes of Cl. (5) of Art. 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.”
62. On a plain reading of clause 5 of Article 22 read with Section 3(3) of PITNDPS Act, it is evident that the documents and other material relied upon in the grounds and detention order should be furnished to the detenue in any event not later than 5 days and in exceptional circumstances and for the reasons to be recorded in writing not later than 15 days from the date of detention. The purpose behind making available the grounds for composition of detention order primarily is that the right of personal liberty of a person may not be arbitrarily taken away from him/her without following the procedure prescribed by law. The grounds so provided will indicate the kind of prejudicial act of which the detenue is suspected and will give a sufficient opportunity to enable him to make a representation to banish the suspicion against him.
63. It was submitted on behalf of the respondents that the petitioner was provided with the copy of the detention order, grounds of detention and relied upon documents on 22.05.2023 when he was detained which has been duly acknowledged by him.
64. It was further submitted that the petitioner did not make any representation against the order of detention, however, the reference was made to the State Advisory Board, Uttarakhad vide letter dated 31.05.2023. The State Advisory Board (PITNDPS and PS), Uttarakhand took the matter up for hearing on 18.07.2023 and heard the petitioner in person, who was produced from the jail. The Board submitted its report dated 31.07.2023 informing that there was sufficient cause for detention of the petitioner and fixed the date of detention w.e.f 22.05.2023 for a period of one year from the date of detention. It is submitted that the petitioner in the meanwhile had also instituted the present writ petition.
65. The petitioner has not disputed that he did not receive the copy of the detention order or other documents but has pleaded that the same were provided to him at a belated stage while he was in custody after his detention in the jail, which is in contravention to Section 3(3) of the PITNDPS Act. It is worth to be noted, that after not being available for more than a year before the authorities, the petitioner on his own accord had surrendered in the court before Special Judge NDPS on 03.05.2022 as non bailable warrants had been issued against him and there was pressure on the petitioner to submit to law, from where he was taken in judicial custody and was sent to Jail at Roorkee. However, pursuant to the detention order, the petitioner had not appeared before the Director General of Police. Therefore, as the petitioner was already in the custody of the Court and lodged in the jail, he was served with the copy of the detention order in the jail on 22.05.2023 which has been duly acknowledged by him.
66. Thus, the petitioner was already in custody with respect to the criminal case pending against him and according to the respondents, he was detained on 22.05.2023 while being in judicial custody and was accordingly served with copy of detention order in jail. Therefore, there is not much force in the argument raised on behalf of the petitioner that he was detained first and then was provided with the copy of the detention order so he was not aware about the grounds of his detention. In fact, the detention period of the petitioner is being reckoned from 22.05.2023 and not from 03.05.2023. It was also submitted that the petitioner received a fair chance of making his representation against the detention order, when he was produced before the Advisory Board, where he was given a personal hearing by the Board.
67. The learned counsel for the respondents further submitted that the law is settled that the detention order can be served on a detenue in the custody also. Reliance has been placed on Union of India v. Ankit Ashok Jalan; (2020) 16 SCC 185 and Union of India v. Dimple Happy Dhakad; (2019) 20 SCC 609.
68. To clarify further, it is not disputed that detention order cannot be passed or served on a detenue when he is in the custody, however, it is subject to the condition that detaining authority should be mindful of the fact that the detenue is likely to be released on bail and that if released, he would continue to indulge in prejudicial activities. Relevant portion of the case titled as Union of India v. Dimple Happy Dhakad (supra) is reproduced hereinbelow:-
69. We are afraid that the position is different in the present case. Pertinently, when the detention order was passed against the petitioner, he was already enlarged on bail. Therefore, since the petitioner was not in custody so, the detaining authority was not required to consider the scenario regarding his likelihood to be released on bail. In the present situation, the petitioner has jumped bail, and successfully hid himself for 15 months and circumvented not only the detention order but also the trial before the learned Special Judge NDPS, therefore, the apprehension that petitioner will continue to indulge in such prejudicial activities cannot be ruled out. Conclusion
70. In the light of the views expressed by us hereinabove, the conduct of the petitioner and role of the authorities, in the present case, we find ourselves unable to sustain the submissions made on behalf of the petitioner. Consequently, the petition along with pending application is dismissed.
SHALINDER KAUR, J. SURESH KUMAR KAIT, J. FEBRUARY 20, 2024