Article 22(5) | Preventive Detention Order Unconstitutional If All Grounds Of Detention Are Not Communicated To Detenu: Orissa High Court

The Orissa High Court has reiterated that a preventive detention order shall be rendered unconstitutional for being violative of Article 22(5) of the Constitution if it does not specify each and every ground based upon which the order of detention was passed against the detenu.

While setting aside a preventive detention order issued against the petitioner, who is accused of drugs-peddling, the Division Bench of Justice Sangam Kumar Sahoo and Justice Sibo Sankar Mishra observed –

“The petitioner was kept in darkness that the Detaining Authority has arrived at its subjective satisfaction also basing on those five cases and therefore, he could not have asked for the documents of such cases to file the representation. The conduct of the Authority in debarring the petitioner to make an effective representation violates the constitutional safeguards enshrined under Article 22(5) of the Constitution of India.”

Referring to the ratio laid down by the Supreme Court in Daktar Mudi -Vrs.- State of West Bengal (1975) the high court said, "...the detention order can be held to be invalid as those five cases which could have influenced the Detaining Authority in arriving at its subjective satisfaction has not been mentioned in the grounds of detention nor communicated to the detenu". 

The court underscored that as subjective satisfaction "being a condition precedent for the exercise of the power of preventive detention conferred on the executive", the Court can always examine whether the requisite satisfaction is arrived at by the authority. It is not, the court said,  the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad. 

Thus in the present case the court held that detaining Authority had recorded its subjective satisfaction not only on the grounds communicated to the petitioner, but there were some other facts and relevant materials before the Authority to arrive at its satisfaction. 

Case Background

The Government of India in exercise of the power under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 ('the 1988 Act') passed the order of detention on 23.07.2024, detaining the petitioner in order to prevent him from engaging in illicit trafficking of narcotic drugs and psychotropic substances.

As the grounds of detention, the sponsoring authority cited three cases against the petitioner involving offences under the Narcotic Drugs & Psychotropic Substances Act, 1985 ('the NDPS Act') and contended that the petitioner is a habitual drug offender whose presence in the society was a threat to the innocent persons of the locality/State/Nation.

The aforesaid grounds were communicated to the petitioner in compliance with Article 22(5) of the Constitution and Section 3(3) of the 1988 Act. The Central Government by virtue of Section 9(f) of the 1988 Act, confirmed the said detention on 18.10.2024, directing to detain the petitioner for a period of one year from the date of detention i.e. 31.07.2024.

Impugning the detention as well as the confirmation orders, the petitioner filed this criminal writ petition before the High Court citing several procedure infirmities committed by the detaining authorities.

During course of the hearing, the Zonal Director, Narcotic Control Bureau, Bhubanewar Zonal Unit filed counter affidavit challenging the contentions made in the writ petition. Apart from justifying the detention order, the authority stated that the petitioner is not only involved in the aforesaid three NDPS cases, rather he is an accused in three others cases under the Excise Act and two cases under the IPC.

The counsel appearing for the petitioner vehemently argued that the very order of detention is invalid for it being violative of Article 22(5) of the Constitution since it communicated only partially the grounds of detention to the petitioner and tactfully did not mention about cases under the Excise Act as well as the IPC, which were also taken into consideration while passing the order.

He further submitted that the petitioner was enlarged on bail in the three NDPS cases which were enlisted as grounds for detention. Therefore, if the authority had reason to believe that the petitioner was misusing his liberty after coming out in bail, it could have resorted to the recourse available under the ordinary criminal law by applying for cancellation of bail. Rather, it pressed into service the draconian provision under 1988 Act to preventively detain the petitioner for no justified reason.

Court's Observations

The most vital questions which cropped up for consideration were whether the detaining authority took into account the involvement of the detenu only in three NDPS cases as have been mentioned in the grounds of detention or it also considered his involvement in five other cases under the Excise Act and IPC and if the latter is found to be the case, whether the partial withdrawal of grounds of detention relied upon by the authority shall entail the very detention a nullity for being violative of Article 22(5).

The bench relied upon a catena of precedents emanating from the Supreme Court. It made reference to Khudiram Das v. State of West Bengal (1974), wherein the constitutional imperatives under Article 22 were held to be two-fold; (i) the detaining authority must, as soon as practicable after the detention, communicate to the detenu the grounds on which the order of detention has been made; and (ii) the authority must afford the detenu the earliest opportunity of making a representation against the order of detention.

It also relied upon Sama Aruna v. State of Telangana & Anr. (2017), which held that a detention order which is found on stale incidents, must be regarded an order of punishment for a crime, passed without a trial though purporting to be an order of preventive detention. Incidents which are old and stale and in which the detenu has been granted bail, cannot be said to have any relevance for detaining a citizen and depriving him of his liberty without a trial.

Having regard for the aforesaid precedents, the Court noted that the detention order made pointed reference to the detenu being a habitual offender by listing only three criminal cases under NDPS Act in which the petitioner was involved during the years 2017 to 2024.

However, the opposite parties in the counter affidavit indicated that they have taken into account criminal propensity of the petitioner between the years 2005 to 2024, during which period he was not only involved in the aforesaid three NDPS cases but also was accused in five other cases under the Bihar and Odisha Excise Act and IPC.

Therefore, the Bench held that not only the sponsoring authority has taken into account five other cases apart from the three NDPS cases mentioned in the detention order, but also the detaining authority has reached its subjective satisfaction basing upon eight cases, which were from the year 2005 to 2024 in passing the detention order.

“Thus, it can be said that the petitioner was not afforded reasonable opportunity of making effective representation against the order of detention. It is not known when those three Excise Act cases and two more cases under Indian Penal Code were instituted and what was the nature of accusation against the petitioner in those cases, the status of those cases and if the petitioner was released on bail in those cases or not and if so when,” it observed.

It further said, "The stand taken by the opposite parties that the petitioner has not taken the grounds of non-supply of documents of all the eight cases in the writ petition is illogical and ridiculous. The petitioner obviously came to know about it when counter affidavits were filed by the opposite parties". 

The Court said that if the detaining authority not only considered the three NDPS cases but also weighed in five other cases while passing the detention order, it ought to have mentioned about those five other cases in the grounds of detention. As the same was not done, the petitioner was deprived of the opportunity to make representation against the same and thereby, mandate under Article 22(5) was overlooked.

“Therefore, the Detaining Authority cannot be said to have given sufficient opportunity to the petitioner to make an effective representation, in other words, the petitioner is deprived of making an effective representation against the order of detention in compliance to the provisions of Article 22(5) of the Constitution of India read with section 6 of the 1988 Act. The partial withdrawal of grounds of detention by not supplying all the basic facts and materials relied upon by the Detaining Authority to the petitioner shall entail the very detention a nullity for being violative of Article 22(5) of the Constitution of India,” it added.

Resultantly, the impugned order of detention along with its confirmation order was quashed and the detenu/petitioner was ordered to be set at liberty.

Case Title: Nilakantha Pradhan v. Government of India & Ors.

Case No: WPCRL No. 129 of 2024

Date of Judgment: February 19, 2025

Counsel for the Petitioner: Mr. Janmejaya Katikia, Advocate

Counsel for the Respondents: Mr. P.K. Parhi, DSGI & Mr. S.S. Kashyap, Sr. Panel Counsel, Govt. of India; Mr. P.S. Nayak, Addl. Govt. Advocate

Citation: 2025 LiveLaw (Ori) 31

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