Supreme Court of India
SUSHANTA KUMAR BANIKversusSTATE OF TRIPURA & ORS.
- Citation
- 2022 INSC 1053
- Decided
- 30 September 2022
- Disposal
- Appeal(s) allowed
- Bench
- UDAY UMESH LALIT
Holding
An unexplained unreasonable delay in passing a preventive detention order and the suppression of material facts vitiate the detaining authority's subjective satisfaction, rendering the order invalid.
Summary
The appellant, Sushanta Kumar Banik, was detained under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 on the basis of two FIRs for alleged drug trafficking. The State of Tripura sought preventive detention, arguing that he was a habitual offender, while the appellant contended that the detention order was invalid due to an unreasonable five‑month delay between the proposal and the order, and because material facts – namely his release on bail in both cases despite the stringent provisions of Section 37 of the NDPS Act, 1985 – were withheld from the detaining authority. The Supreme Court held that such unexplained delay severs the "live and proximate link" required for preventive detention and that the suppression of vital facts vitiates the detaining authority's subjective satisfaction. Consequently, the Court quashed the detention order, set aside the High Court’s decision, and ordered the appellant’s immediate release. The judgment reaffirmed the strict safeguards required in preventive detention jurisprudence.
Issues considered
- The legality of the preventive detention order given the five‑month delay between the proposal and the order.
- Whether the failure to disclose the appellant's bail releases, a material fact, vitiated the detaining authority's subjective satisfaction.
- Whether the "live and proximate link" between the grounds of detention and the purpose of detention was broken.
Legislation cited
- Narcotic Drugs and Psychotropic Substances Act, 1985s. 21(b), s. 22(b), s. 22(c), s. 29, s. 37
- Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988s. 3(1)
Subjects
preventive detentionNDPS Actdelay in detention ordersubjective satisfactionmaterial fact suppressionSection 37 NDPSpersonal libertydetention order quashed
Judgment
484 [2022]REPORTS
SUPREME COURT 13 S.C.R. 484 [2022] 13 S.C.R.
A SUSHANTA KUMAR BANIK
v.
STATE OF TRIPURA & ORS.
(Criminal Appeal No. 1708 of 2022)
B SEPTEMBER 30, 2022
[UDAY UMESH LALIT, CJI, S. RAVINDRA BHAT AND
J. B. PARDIWALA, JJ.]
Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988: s. 3(1) – Power to make orders
C
detaining certain persons – FIRs against the appellant for the
offences punishable u/ss. 22(b)/22(C)/29 and 21(B) of the NDPS
Act, 1985 for illegal trafficking of the narcotic drugs and that he is
a habitual offender – Detention order by the Government – Writ
petition challenging the legality and validity of the detention order
D – Dismissed by the High Court – On appeal, held: There was delay
in passing the order of detention from the date of proposal thereby
snapping the “live and proximate link” between the prejudicial
activities and the purpose of detention and failure on the part of
the detaining authority in explaining such delay in any manner –
Such delay unless satisfactorily explained throws a considerable
E
doubt on the genuineness of the requisite subjective satisfaction of
the detaining authority in passing the detention order and
consequently render the detention order bad and invalid –
Furthermore, the vital fact that the appellant detenu had been
released on bail despite the rigours of s. 37 of the NDPS Act, was
F not brought to the notice and was withheld and the detaining
authority was given to understand that the trial of those criminal
cases was pending – Subjective satisfaction, formation of which is
a condition precedent to passing of a detention order, gets vitiated
if material or vital facts which would have bearing on the issue and
weighed the satisfaction of the detaining authority one way or the
G
other and influence his mind are either withheld or suppressed by
the sponsoring authority or ignored and not considered by the
detaining authority before issuing the detention order – Thus, the
order of detention is quashed and set aside – Narcotic Drugs and
Psychotropic Substances Act, 1985.
H
484
SUSHANTA KUMAR BANIK v. STATE OF TRIPURA & ORS. 485
Allowing the appeal, the Court A
HELD: 1.1 The proposal to take steps to preventively
detain the appellant at the end of the Superintendent of Police
addressed to the Superintendent of Police (C/S) West Tripura,
Agartala is dated 28th of June 2021. The proposal in turn
forwarded by the Assistant Inspector General of Police (Crime) B
on behalf of the Director General to the Secretary, Home
Department is dated 14.07.2021. The order of detention is dated
12th of November, 2021. There is no explanation worth the name
why it took almost five months for the detaining authority to pass
the order of preventive detention. [Para 12][495-D-E]
C
1.2 The underlying principle is that if there is unreasonable
delay between the date of the order of detention and actual arrest
of the detenu and in the same manner from the date of the proposal
and passing of the order of detention, such delay unless
satisfactorily explained throws a considerable doubt on the
genuineness of the requisite subjective satisfaction of the D
detaining authority in passing the detention order and
consequently render the detention order bad and invalid because
the “live and proximate link” between the grounds of detention
and the purpose of detention is snapped in arresting the detenu.
A question whether the delay is unreasonable and stands E
unexplained depends on the facts and circumstances of each case.
[Para 20][498-D-F]
1.3 In the instant case, the circumstances indicate that the
detaining authority after the receipt of the proposal from the
sponsoring authority was indifferent in passing the order of F
detention with greater promptitude. The “live and proximate
link” between the grounds of detention and the purpose of
detention stood snapped in arresting the detenu. More importantly
the delay has not been explained in any manner and though this
point of delay was specifically raised and argued before the High
Court as evident from the impugned judgment yet the High Court G
has not recorded any finding on the same. [Para 21][498-G-H]
2.1 In both the cases relied upon by the detaining authority
for the purpose of preventively detaining the appellant, the
H
486 SUPREME COURT REPORTS [2022] 13 S.C.R.
A appellant was already ordered to be released on bail by the
concerned Special Court. Indisputably, there is no reference of
this fact in the proposal forwarded by the Superintendent of Police,
West Tripura District while requesting to process the order of
detention. The reason for laying much stress on this aspect of
the matter is the fact that the appellant though arrested in
B
connection with the offence under the NDPS Act, 1985, the
Special Court, Tripura thought fit to release the appellant on bail
despite the rigours of Section 37 of the NDPS Act, 1985. [Para
22][499-B-C]
2.2 A plain reading of Section 37 of the NDPS Act would
C indicate that the accused arrested under the NDPS Act, 1985 can
be ordered to be released on bail only if the Court is satisfied
that there are reasonable grounds for believing that the accused
is not guilty of such offence and that he is not likely to commit
any offence while on bail. If the appellant was ordered to be
D released on bail despite the rigours of Section 37 of the NDPS
Act, 1985, then the same is suggestive that the Court concerned
might not have found any prima facie case against him. Had this
fact been brought to the notice of the detaining authority, then it
would have influenced the mind of the detaining authority one
way or the other on the question whether or not to make an order
E of detention. The State never thought to even challenge the bail
orders passed by the special court releasing the appellant on
bail. [Para 23][499-H; 500-A-C]
2.3 The requisite subjective satisfaction, the formation of
which is a condition precedent to passing of a detention order
F will get vitiated if material or vital facts which would have bearing
on the issue and weighed the satisfaction of the detaining authority
one way or the other and influence his mind are either withheld
or suppressed by the sponsoring authority or ignored and not
considered by the detaining authority before issuing the detention
G order. [Para 26][500-H; 501-A-B]
2.4 In the instant case, at the time when the detaining
authority passed the detention order, this vital fact, namely, that
the appellant detenu had been released on bail by the Special
Court, Tripura despite the rigours of Section 37 of the NDPS
H Act, 1985, had not been brought to the notice and on the other
SUSHANTA KUMAR BANIK v. STATE OF TRIPURA & ORS. 487
hand, this fact was withheld and the detaining authority was given A
to understand that the trial of those criminal cases was pending.
[Para 27][501-B-C]
3.1 The preventive detention is a serious invasion of
personal liberty and the normal methods open to a person charged
with commission of any offence to disprove the charge or to prove B
his innocence at the trial are not available to the person
preventively detained and, therefore, in prevention detention
jurisprudence whatever little safeguards the Constitution and the
enactments authorizing such detention provide assume utmost
importance and must be strictly adhered to. [Para 28][501-D]
C
3.2 The impugned judgment and order passed by the High
Court is set aside. The order of preventive detention passed by
the State of Tripura is quashed and set aside. [Para 29][501-E]
Ashok Kumar v. Delhi Administration and Ors. (1982)
2 SCC 403 : [1982] 3 SCR 707; SL. Nizamuddin v. D
State of West Bengal (1975) 3 SCC 395 : [1975] 2 SCR
593; Suresh Mahato v. The District Magistratem
Burdwan, and Ors. (1975) 3 SCC 554; SK. Serajul v.
State of West Bengal (1975) 2 SCC 78; Bhawarlal
Ganeshmalji v. State of Tamil Nadu (1979) 1 SCC 465
: [1979] 2 SCR 633; Shafiq Ahmed v. District E
Magistrate, Meerut and Ors. (1989) 4 SCC 556 : [1989]
1 Suppl. SCR 56; Asha Devi v. Additional Chief
Secretary to the Government of Gujarat and Anr., 1979
Crl LJ 203.
Case Law Reference F
[1982] 3 SCR 707 referred to Para 13
[1975] 2 SCR 593 referred to Para 16
[1979] 2 SCR 633 referred to Para 18
[1989] 1 Suppl. SCR 56 referred to Para 19 G
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1708 of 2022.
H
488 SUPREME COURT REPORTS [2022] 13 S.C.R.
A From the Judgment and Order dated 01.06.2022 of the High Court
of Tripura at Agartala in WP (C) (HC) No.06 of 2021.
Ms. Madhumita Bhattacharjee, Srija Choudhury, Anant, Advs. for
the Appellant.
K. M. Nataraj, ASG, Nachiketa Joshi, Ms. Himadri Haksav, Ms.
B Sucheta Joshi, Akshay Amritanshu, Shailesh Madiyal, Ms. Bani Dikshit,
Sudarshan K., Nakul Chengappa K. K., Mukesh Kumar Maroria, Advs.
for the Respondents.
The Judgment of the Court was delivered by
C J. B. PARDIWALA, J.
1. Leave granted.
2. This appeal is at the instance of a detenu detained under Section
3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988 (for short, ‘PIT NDPS Act’) and is directed against
D the judgment and order passed by the High Court of Tripura at Agartala
dated 01.06.2022 in Writ Petition (Civil) No. 6 of 2021 by which the
High Court rejected the writ application filed by the appellant herein
questioning the legality and validity of the detention order passed by the
Government of Tripura dated 12.11.2021 and thereby affirming the order
of detention.
E
3. It all started with a proposal dated 28th of June, 2021 submitted
by the Superintendent of Police, West Tripura District, Sub-Divisional
Police Officer, Amtali, West Tripura to the Superintendent of Police (C/
S), West Tripura, Agartala with a request to move the appropriate authority
for passing an appropriate order of detention under the provisions of the
F
PIT NDPS Act.
4. The proposal reads thus:-
“GOVERNMENT OF TRIPURA
OFFICE OF THE SUB DIVISIONAL POLICE OFFICER
G WEST TRIPURA, AGARTALA
No. 1445/SDPO(AMT)/21
To Dated, 28th June, 2021
The Superintendent of Police (C/S),
West Tripura, Agartala.
H
SUSHANTA KUMAR BANIK v. STATE OF TRIPURA & ORS. 489
[J. B. PARDIWALA, J.]
Subject: Proposal for Preventive Detention order of accused A
Susanta Kumar Banik, S/o. Lt. Shanti Ch. Banik of Siddhiashram,
Badharghat, Kalimata Sangha, near Railway Station, PS Amtali,
West Tripura U/-3 of PIT NDPS Act, 1988.
Sir,
With reference to the subject cited above, it is to inform B
that I am submitting a proposal for issuance of preventive detention
order against the accused Susanta Kumar Banik, S/o. Lt. Shanti
Ch. Banik of Siddhiashram, Badharghat, Kalimata Sangha, near
Railway Station, PS-Amtali, West Tripura U/-3 of PIT NDPS
Act, 1988. C
Ongoing through the proposal and the relevant records
collected from various sources, the following grounds have been
found for detention of Susanta Kumar Banik, S/o. Lt. Shanti Ch.
Banik of Siddhiashram, Badharghat, Kalimata Sangha, near
Railway Station, PS-Amtali, West Tripura U/-3 of PIT NDPS D
Act, 1988.
1. Sri Susanta Kumar Banik, S/o. Lt. Shanti Ch. Banik of
Siddhiashram, Badharghat, Kalimata Sangha, near Railway Station,
PS-Amtali, West Tripura was charge sheeted in Amtali PS Case
No. 2019/AMT/208 dated 05/11/2019 U/S 22(b)/22(C)/29 of E
NDPS Act, 1985 which was registered following seizure of 92
gm brown sugar (Heroin) & 7600 nos yaba tablets. Investigation
of the case has revealed that he is involved in running of illegal
business of narcotic drugs throughout the State and outside the
State. The subject was arrested on 05/11/2019 and forwarded to
the Ld. Court. He has already been charge sheeted in this case F
vide Amtali PS C/S No. 11/20 dated 09/02/2020 (Copy of FIR,
seizure list, inventory, arrest memo, SFSL report, statement of
witnesses are enclosed).
2. Sri Susanta Kumar Banik, S/o. Lt. Shanti Ch. Banik of
Siddhiashram, Badharghat, Kalimata Sangha, near Railway Station, G
PS-Amtali, West Tripura again got involved in East Agartala PS
Case No. 2021 EAG 052 dated 25/04/2021 U/S-21(B)/29 of NDPS
Act wherein on 25/04/2021 the said Susanta Kumar Banik S/o
Lt. Santi Ch. Banik was again caught red handed while dealing
with NDPS substance near Badharghat Railway Station. One
H
490 SUPREME COURT REPORTS [2022] 13 S.C.R.
A pouch filled with suspected heroin was recovered from his
possession along with cash Rs.20,400/- & a android mobile. It
has made very much clear that the said Sushanta Kumar Banik is
a habitual drug dealer and sells drug to youths hence running the
lives of young fellows as well as the entire society as a whole.
The investigation of the above referred case is under progress
B
and the said Susanta Kumar Banik is learned to be in Judicial
Custody.
In view of the above it can be stated that Sri Susanta Kumar
Banik is a kingpin in illegal trafficking of narcotic drugs inside the
state as well as outside the state. He did not stop his illegal activities
C of narcotics drugs and psychotropic substances even after his
arrest in previous case vide Amtali PS Case No. 208/19 and East
Agartala PS Case No. 52/2021. It shows his determination is to
continue his illegal NDPS business. It is further mentioned that
illicit trafficking in narcotic drugs and psychotropic substances
D caused a serious threat to the health and welfare of the people
and to protect the society from this menace it is required to take
stern action against the subject.
The appropriate authority may please be moved to issue
detention order against Susanta Kumar Banik, S/o. Lt. Shanti Ch.
E Banik of Siddhiashram, Badharghat, Kalimata Sangha, near
Railway Station, PS-Amtali, West Tripura U/s-3 of PIT NDPS
Act, 1988 to prevent him from engaging in illicit trafficking of
narcotic drugs and psychotropic substances further.
Yours sincerely,
F Enclo: List of relied documents. Sd/- 28/6/21
(Anirban Das)
Superintendent of Police,
West Tripura District,
Sub-Divisional Police Officer
Amtali, West Tripura.”
G
5. The Secretary (Home Department), Government of Tripura
acting on the proposal dated 14.07.2021 forwarded by the Director
General of Police proceeded to pass the detention order dated 12.11.2021
which reads thus:
H
SUSHANTA KUMAR BANIK v. STATE OF TRIPURA & ORS. 491
[J. B. PARDIWALA, J.]
“No. F. 15(9)- PD/2021(III) A
GOVERNMENT OF TRIPURA
HOME DEPARTMENT
12th November, 2021
ORDER
B
Whereas, the Director General of Police has sent a
proposal for detention of Shri Sushanta Kumar Banik, S/o. Lt.
Shanti Ch. Banik of Siddhiashram, Badharghat, Kalimata Sangha,
near Agartala Railway Station, PS-Amtali, West Tripura under
PITNPS Act, 1988 along with records under Section 3(1) of the
Prevention of Illicit traffic in Narcotic Drugs and Psychotropic C
Substances Act, 1988.
AND
Whereas, on perusal of records as submitted by the Director
General of Police, Tripura, it appears that Shri Sushanta Kumar D
Banik, S/o. Late Shanti Ch. Banik of Siddhiashram, Badharghat,
Kalimata Sangha, near Agartala Railway Station, PS-Amtali, West
Tripura under PITNPS Act. 1988 was involved in the following
cases :-
(i) Amtali PS Case No. 2019/AMT/208 dated 05.11.2019
E
22(b)/22(C)/29 of NDPS Act, 1985.
(ii) East Agartala PS Case No. 2021 EAG 052 dated 25.04.2021
U/S 21(B)/29 of NDPS Act.
AND
Whereas, he has association with the smugglers of NDPS F
articles and illicit drug traffickers in connection with Amtali PS
Case No. 2019/AMT/208 dated 05/ 11/2019 U/S 22(b)/22(C)/29
of NDPS Act, 1985 and East Agartala PS Case No. 2021 EAG
052 dated 25/04/2021 U/S - 21(B)/29 of NDPS Act.
AND G
Whereas, the person is still active in illicit trafficking of
NDPS articles revealed from field information but could not be
arrested red-handed again and issue of detention order under
PITNDPS will also help Police in initiating financial investigation
laid down under Chapter-V(A) of NDPS Act. H
492 SUPREME COURT REPORTS [2022] 13 S.C.R.
A AND
Whereas, Shri Sushanta Kumar Banik, S/o. Late Shanti
Ch. Banik of Siddhiashram, Badharghat, Kalimata Sangha, near
Agartala Railway Station, PS-Amtali, West Tripura was charge
sheeted in Amtali PS Case No. 2019/AMT/208 dated 05.11.2019
B U/S 22(b)/22(C)/29 of NDPS Act, 1985 which was registered
following seizure of 92 gm brown sugar (Heroin) and 7600 nos
yaba tablets. Investigation of the case has revealed that he is
involved in running in illegal business of narcotics drugs throughout
the State and outside the State.
C AND
Whereas, he is a kingpin in illegal trafficking of narcotic
drugs inside the State as well as outside the State. He did not stop
his illegal activities of narcotics drugs and psychotropic substances
even after his arrest in previous case vide Amtali PS Case No.
D 208/19 and East Agartala PS Case No. 52/2021. It shows his
determination is to continue his illegal NDPS business. Illicit
trafficking in narcotic drugs and psychotropic substances caused
a serious threat to the health and welfare of the people and to
protect the society from this menace it is required to take stern
action against the person.
E
AND
Whereas, Director General of Police, Tripura has proposed
to prevent Shri Sushanta Kumar Banik, S/o. Late Shanti Ch. Banik
of Siddhiashram, Badharghat, Kalimata Sangha, near Agartala
F Railway Station, PS-Amtali, West Tripura from continuing his
harmful and prejudicial activity by engaging in illicit traffic of
narcotic drugs and psychotropic substances in the interest of
society.
AND
G Now, therefore, the undersigned, being the specially
empowered officer of 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 careful examination of the proposal of the Director
General of Police, Tripura and other supporting documents, found
H
SUSHANTA KUMAR BANIK v. STATE OF TRIPURA & ORS. 493
[J. B. PARDIWALA, J.]
sufficient grounds for detention of Shri Sushanta Kumar Banik A
and being satisfied that with a view to preventing him from engaging
in illicit traffic in NDPS, it is necessary to detain him and accordingly
it is directed for detention of Shri Sushanta Kumar Banik S/o.
Late Shanti Ch. Banik of Siddhiashram, Badharghat. Kalimata
Sangha, near Agartala Railway Station, PS-Amtali, West Tripura.
B
It is mentioned that the accused Shri Sushanta Kumar Banik
S/o. Late Shanti Ch. Banik of Siddhiashram, Badharghat, Kalimata
Sangha, near Agartala Railway Station, PS-Amtali, West Tripura
may submit his representation to the Central/State Government
against this order of detention. Such representation may be
submitted to the undersigned for onward transmission to the C
Central/State Government. The accused is to be informed that he
will get all reasonable opportunity for making representation against
this order to the Central/State Government, he may therefore state
to the undersigned what opportunity he needed for this purpose.
The accused is to be appraised of his right to make representation D
before the undersigned against this detention order. The accused
is to be informed that he also has a right to be heard before the
Advisory Board.
The concerned Superintendent of Central Jail/District Jail/
Sub-Jail is requested to depute a responsible officer at the time of E
effecting detention order to the addressee who will explain in
details the contents of this order along with grounds of detention.
Even assistance of another Government official or any other person
may be taken to brief him about the order etc. in the language
which the said accused person understands in presence of two
witness on receipt signature or thumb impression in token from F
the accused.
The concerned Superintendent of Central Jail/District Jail/
Sub-Jail is directed to extend all assistance to the accused in making
representation to the concerned authority. The assistance provided
by the Superintendent of Central Jail/District Jail/Sub-Jail may G
include stationary and any other items as desired by the accused.
The Superintendent of Central Jail/District Jail/Sub-Jail will also
provide a literate person who shall assist the accused, if he is not
literate, in drafting the representation to the Central/State
Government. H
494 SUPREME COURT REPORTS [2022] 13 S.C.R.
A Sd/- 12.11.2021
(A. Roy)
Secretary to the
Government of Tripura”
6. Thus, from the aforesaid, it appears that the order of preventive
B detention came to be passed essentially on the ground that in the past
two First Information Reports (FIR) were registered against the appellant
herein for the offences punishable under Sections 22(b)/22(C)/29 and
21(B) resply of the Narcotic Drugs and Psychotropic Substances Act,
1985 (for short, ‘NDPS Act, 1985’) and is a habitual offender. The first
FIR is dated 05.11.2019 and the second FIR is dated 25.04.2021. At the
C end of the investigation of the FIR dated 05.11.2019, the charge sheet
came to be filed and the trial is pending as on date. The investigation so
far as the FIR dated 25.04.2021 is concerned, the same is shown to
have been pending on the date of the proposal. However, what is
important to note is that in both the aforesaid cases registered under the
D NDPS Act, 1985, the appellant herein was ordered to be released on
bail by the Special Court, Tripura.
7. The appellant questioned the legality and validity of the detention
order by filing the Writ Petition (Civil) No. 6 of 2021 in the High Court of
Tripura at Agartala. The High Court vide the impugned judgment and
E order dated 01.06.2022 rejected the writ application thereby affirming
the order of preventive detention.
8. In such circumstances referred to above, the appellant (detenu)
is before this Court with the present appeal.
ANALYSIS:
F
9. We have heard Ms. Madhumita Bhattacharjee, the learned
counsel appearing for the appellant detenu and Mr. Nachiketa Joshi, the
learned counsel appearing for the State of Tripura.
10. Manifold contentions have been raised by the learned counsel
appearing on both the side.
G
11. We are persuaded to allow this appeal on the following two
grounds:
(i) Delay in passing the order of detention from the date of proposal
thereby snapping the “live and proximate link” between the
H prejudicial activities and the purpose of detention & failure on the
SUSHANTA KUMAR BANIK v. STATE OF TRIPURA & ORS. 495
[J. B. PARDIWALA, J.]
part of the detaining authority in explaining such delay in any A
manner.
(ii) The detaining authority remained oblivious of the fact that in
both the criminal cases relied upon by the detaining authority for
the purpose of passing the order of detention, the appellant detenu
was ordered to be released on bail by the special court. The B
detaining authority remained oblivious as this material and vital
fact of the appellant detenu being released on bail in both the
cases was suppressed or rather not brought to the notice of the
detaining authority by the sponsoring authority at the time of
forwarding the proposal to pass the appropriate order of preventive
detention. C
DELAY IN PASSING THE ORDER OF DETENTION
12. We may recapitulate the necessary facts which have a bearing
so far as the issue of delay is concerned. The proposal to take steps to
preventively detain the appellant at the end of the Superintendent of D
Police addressed to the Superintendent of Police (C/S) West Tripura,
Agartala is dated 28th of June 2021. The proposal in turn forwarded by
the Assistant Inspector General of Police (Crime) on behalf of the Director
General to the Secretary, Home Department is dated 14.07.2021. The
order of detention is dated 12th of November, 2021. There is no explanation
worth the name why it took almost five months for the detaining authority E
to pass the order of preventive detention.
13. There is indeed a plethora of authorities explaining the purpose
and the avowed object of preventive detention in express and explicit
language. We think that all those decisions of this Court on this aspect
need not be recapitulated and recited. But it would suffice to refer to the F
decision of this Court in Ashok Kumar v. Delhi Administration and
Ors., (1982) 2 SCC 403, wherein the following observation is made:
“Preventive detention is devised to afford protection to society.
The object is not to punish a man for having done something
but to intercept before he does it and to prevent him from G
doing.”
14. In view of the above object of the preventive detention, it
becomes very imperative on the part of the detaining authority as well
as the executing authorities to remain vigilant and keep their eyes skinned
H
496 SUPREME COURT REPORTS [2022] 13 S.C.R.
A but not to turn a blind eye in passing the detention order at the earliest
from the date of the proposal and executing the detention order because
any indifferent attitude on the part of the detaining authority or executing
authority would defeat the very purpose of the preventive action and
turn the detention order as a dead letter and frustrate the entire
proceedings.
B
15. The adverse effect of delay in arresting a detenu has been
examined by this Court in a series of decisions and this Court has laid
down the rule in clear terms that an unreasonable and unexplained delay
in securing a detenu and detaining him vitiates the detention order. In the
decisions we shall refer hereinafter, there was a delay in arresting the
C detenu after the date of passing of the order of detention. However, the
same principles would apply even in the case of delay in passing the
order of detention from the date of the proposal. The common underlying
principle in both situations would be the “live & proximate link” between
the grounds of detention & the avowed purpose of detention.
D 16. In Sk. Nizamuddin v. State of West Bengal, (1975) 3 SCC
395, this Court while examining the necessity of securing the arrest of
the detenu immediately after the order of detention has held thus:
“It would be reasonable to assume that if the District
Magistrate was really and genuinely satisfied after proper
E 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
F 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
G 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.”
H
SUSHANTA KUMAR BANIK v. STATE OF TRIPURA & ORS. 497
[J. B. PARDIWALA, J.]
Having held as above, Bhagwati, J. (as the learned Chief Justice A
then was) pointed out that if there is any delay in arresting the detenu
pursuant to the order of detention which is prima-facie unreasonable,
the State must give reasons explaining the delay.
17. A similar contention was raised in Suresh Mahato v. The
District Magistrate, Burdwan, and Ors., (1975) 3 SCC 554, on the B
basis of the dictum laid down in two decisions of this Court, namely, SK.
Serajul v. State of West Bengal, (1975) 2 SCC 78, and Sk.
Nizamuddin (supra) contending that the delay of the arrest of the detenu
in that case showed that the detaining authority was not really and
genuinely satisfied as regards the necessity for detention of the detenu
for otherwise he would have tried to secure the arrest of the detenu C
promptly and not left him free to carry on his nefarious activities.
Bhagwati, J. (as the learned Chief Justice then was) while dealing with
this submission, made the following observation:
“Now, there can be no doubt—and the law on this point must
be regarded as well settled by these two decisions—that if D
there is unreasonable delay between the date of the order of
detention and the date of arrest of the detenu, such delay,
unless satisfactorily explained, would throw considerable
doubt on the genuineness of the subjective satisfaction of the
District Magistrate and it would be a legitimate inference to E
draw that the District Magistrate was not really and genuinely
satisfied as regards the necessity for detaining the petitioner.”
18. Chinnappa Reddy, J. speaking for the Bench in Bhawarlal
Ganeshmalji v. State of Tamil Nadu, (1979) 1 SCC 465, has explained
as follow: F
“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 G
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
H
498 SUPREME COURT REPORTS [2022] 13 S.C.R.
A delay is not only adequately explained but is found to be the
result of the recalcitrant or refractory conduct of the detenu
in evading arrest, there is warrant to consider the “link” not
snapped but strengthened.”
(Emphasis supplied)
B 19. Sabyasachi Mukharji, J. (as the learned Chief Justice then
was) in Shafiq Ahmed v. District Magistrate, Meerut and Ors., (1989)
4 SCC 556, having regard to the fact that there was a delay of two and
a half months in detaining the petitioner (detenu) therein, pursuant to the
order of detention has concluded that “there was undue delay, delay
C not commensurate with the facts situation in that case and the
conduct of the respondent authorities betrayed that there was no
real and genuine apprehension that the detenu was likely to act in
any manner prejudicial to public order. The order, therefore is bad
and must go”. However, the learned Judge observed that “whether
the delay was unreasonable depends on the facts and circumstances
D of each case.”
20. It is manifestly clear from a conspectus of the above decisions
of this Court, that the underlying principle is that if there is unreasonable
delay between the date of the order of detention & actual arrest of the
detenu and in the same manner from the date of the proposal and passing
E of the order of detention, such delay unless satisfactorily explained throws
a considerable doubt on the genuineness of the requisite subjective
satisfaction of the detaining authority in passing the detention order and
consequently render the detention order bad and invalid because the
“live and proximate link” between the grounds of detention and the
F purpose of detention is snapped in arresting the detenu. A question whether
the delay is unreasonable and stands unexplained depends on the facts
and circumstances of each case.
21. In the present case, the circumstances indicate that the detaining
authority after the receipt of the proposal from the sponsoring authority
G was indifferent in passing the order of detention with greater promptitude.
The “live and proximate link” between the grounds of detention and the
purpose of detention stood snapped in arresting the detenu. More
importantly the delay has not been explained in any manner & though
this point of delay was specifically raised & argued before the High
Court as evident from Para 14 of the impugned judgment yet the High
H Court has not recorded any finding on the same.
SUSHANTA KUMAR BANIK v. STATE OF TRIPURA & ORS. 499
[J. B. PARDIWALA, J.]
VITAL MATERIAL OR VITAL FACT WITHHELD AND A
NOT PLACED BY THE SPONSORING AUTHORITY BEFORE
THE DETAINING AUTHORITY
22. As noted above, in the case on hand, in both the cases relied
upon by the detaining authority for the purpose of preventively detaining
the appellant herein, the appellant was already ordered to be released on B
bail by the concerned Special Court. Indisputably, we do not find any
reference of this fact in the proposal forwarded by the Superintendent
of Police, West Tripura District while requesting to process the order of
detention. The reason for laying much stress on this aspect of the matter
is the fact that the appellant though arrested in connection with the
offence under the NDPS Act, 1985, the Special Court, Tripura thought C
fit to release the appellant on bail despite the rigours of Section 37 of the
NDPS Act, 1985. Section 37 of the NDPS Act, 1985 reads thus:
“Section 37. Offences to be cognizable and non-bailable.—
(1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974)— D
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable for
offences under section 19 or section 24 or section 27A E
and also for offences involving commercial quantity shall
be released on bail or on his own bond unless—
(i) the Public Prosecutor has been given an opportunity to
oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, F
the court is satisfied that there are reasonable grounds for
believing that he is not guilty of such offence and that he
is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b)
of sub-section (1) are in addition to the limitations under the G
Code of Criminal Procedure, 1973 (2 of 1974) or any other
law for the time being in force, on granting of bail.”
23. A plain reading of the aforesaid provision would indicate that
the accused arrested under the NDPS Act, 1985 can be ordered to be
released on bail only if the Court is satisfied that there are reasonable H
500 SUPREME COURT REPORTS [2022] 13 S.C.R.
A grounds for believing that the accused is not guilty of such offence and
that he is not likely to commit any offence while on bail. If the appellant
herein was ordered to be released on bail despite the rigours of Section
37 of the NDPS Act, 1985, then the same is suggestive that the Court
concerned might not have found any prima facie case against him. Had
this fact been brought to the notice of the detaining authority, then it
B
would have influenced the mind of the detaining authority one way or
the other on the question whether or not to make an order of detention.
The State never thought to even challenge the bail orders passed by the
special court releasing the appellant on bail.
24. In Asha Devi v. Additional Chief Secretary to the
C Government of Gujarat and Anr., 1979 Crl LJ 203, this Court pointed
out that:
“… if material or vital facts which would influence the minds
of the detaining authority one way or the other on the question
whether or not to make the detention order, are not placed
D before or are not considered by the detaining authority it would
vitiate its subjective satisfaction rendering the detention order
illegal.”
25. In Sk. Nizamuddin (supra) this Court observed as under:
E “We should have thought that the fact that a criminal case is
pending against the person who is sought to be proceeded
against by way of preventive detention is a very material
circumstance which ought to be placed before the District
Magistrate. The circumstance might quite possible have an
impact on his decision whether or not to make an order of
F detention. It is not altogether unlikely that the District
Magistrate may in a given case take the view that since a
criminal case is pending against the person sought to be
detained, no order of detention should be made for the present,
but the criminal case should be allowed to run its full course
G and only if it fails to result in conviction, then preventive
detention should be resorted to. It would be most unfair to
the person sought to be detained not to disclose the pendency
of a criminal case against him to the District Magistrate.”
26. From the above decisions, it emerges that the requisite
subjective satisfaction, the formation of which is a condition precedent
H
SUSHANTA KUMAR BANIK v. STATE OF TRIPURA & ORS. 501
[J. B. PARDIWALA, J.]
to passing of a detention order will get vitiated if material or vital facts A
which would have bearing on the issue and weighed the satisfaction of
the detaining authority one way or the other and influence his mind are
either withheld or suppressed by the sponsoring authority or ignored and
not considered by the detaining authority before issuing the detention
order.
B
27. It is clear to our mind that in the case on hand at the time
when the detaining authority passed the detention order, this vital fact,
namely, that the appellant detenu had been released on bail by the Special
Court, Tripura despite the rigours of Section 37 of the NDPS Act, 1985,
had not been brought to the notice and on the other hand, this fact was
withheld and the detaining authority was given to understand that the C
trial of those criminal cases was pending.
28. The preventive detention is a serious invasion of personal liberty
and the normal methods open to a person charged with commission of
any offence to disprove the charge or to prove his innocence at the trial
are not available to the person preventively detained and, therefore, in D
prevention detention jurisprudence whatever little safeguards the
Constitution and the enactments authorizing such detention provide assume
utmost importance and must be strictly adhered to.
29. In view of the aforesaid discussion, this appeal succeeds and
is hereby allowed. The impugned judgment and order passed by the E
High Court of Tripura is set aside. The order of preventive detention
passed by the State of Tripura dated 12.11.2021 is hereby quashed and
set aside. The appellant herein is ordered to be released forthwith from
custody if not required in any other case.
30. Pending application, if any, also stands disposed of. F
Nidhi Jain Appeal allowed.
(Assisted by : Shashwat Jain, LCRA)
G
H
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