[PIT-NDPS Act] Detaining Authority Takes Over Two Months To Decide Detenue’s Representation, Gauhati High Court Orders Immediate Release

The division bench of Justice Achintya Malla Bujor Barua and Justice Robin Phukan observed:

“In the instant case, we have noticed that even if we take out the period for which the records were sent to the Advisory Board, the detaining authority took more than 2 ½ months to dispose of the representation and the only explanation given is that a report was called from the Superintendent of Police, Barpeta which took more than one month. Even if the report took more than one month, still a balance of 1 ½ months remained unexplained for the delay.”

The petitioner was detained vide order dated 16.03.2022 of the Assam Home and Political Department's Commissioner and Secretary under section 3(1) of PIT-NDPS Act for allegedly continuously indulging in illicit trade in narcotic drugs and acting in a manner prejudicial to the provisions under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

In the writ petition, the petitioner challenged the impugned detention order on the ground that there was a delay in disposing of the representation beyond the permissible limit.

It was further contended that the petitioner was not informed that he has a legal right to make a representation to four of the authorities -  the detaining authority itself, the State Government, the Advisory Board as well as to the authorities under the Central Government.

“It is a settled proposition of law that in case of a preventive detention, there is an inherent legal right bestowed on the detenu to be informed by the detaining authority that he has a legal right to make representation to all the aforesaid four authorities,” said the court.

The court also observed that the disposal of the representation made by the petitioner on 18.04.2022 was made after a period of three months.

The Home and Political Department of the Government of Assam stated that upon receipt of the representation, the Commissioner and Secretary had called for a report from the Superintendent of Police, Barpeta and it took more than one month for the report to be received from the Superintendent of Police.

The court held that still a period of more than 2 ½ months remained unexplained other than an explanation that the report of the Superintendent of Police, Barpeta was called for and it took more than a month to receive the same.

The court relied upon the decision of Supreme Court in Rashid Kapadia v. Medha Gadgil and others (2012) 11 SCC 745 in which it was held that when a detenu under preventive detention makes a representation, it has to be considered by the authority concerned as expeditiously as possible as it is a constitutional right under Article 22(5) of the Constitution of India and any unreasonable and unacceptable delay in considering the representation would have to be held to be fatal to the continued detention of the detenu.

"By following the proposition laid down by the Hon’ble Supreme Court in Rashid Kapdia (supra), the reason set-forth for the delay in disposing the representation by almost a period of 2 ½ months as indicated above is found to be unacceptable in law," it observed.

Accordingly, the court set aside the impugned detention order and ordered detenu's immediate release.

Case Title: Babul Ahmed v. The Union of India & 5 Ors

Citation: 2023 LiveLaw (Gau) 31

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