Non Placing & Non Consideration Of Bail Order Vitiates Detaining Authority's Subjective Decision: Tripura HC Sets Aside Detention Order

The Tripura High Court recently observed that non-placing and non-consideration of bail orders, wherein bail had been granted to detenu in cases referred to in the detention order, vitiates the subjective decision of the detaining authority, and on this ground, the detention order can be set aside by the Court.

The Bench of Chief Justice Indrajit Mahanty and Justice S. G. Chattopadhyay observed thus as it set aside a detention order passed against the detenu Bishu Kumar Tripura by the Government of Tripura under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 [PITNDPS Act].

It may be noted that subsection (1) of section 3 of the PITNDPS Act postulates that the Central Government or a State Government if satisfied, that with a view to preventing the person from engaging in illicit traffic in NDPS, his detention is necessary, may make an order directing detention of such person.

The case in brief 

In the instant case, the detention order was made on August 20, 2021, asserting that the detenu is a drug peddler against whom several cases have been registered. It was also asserted that the invocation action of the provisions of the PITNDPS Act against the detenu was felt necessary to deter him from repeating the commission of offenses under the NDPS Act.

The detenu was made aware of the grounds of detention, and the copies of the documents relied on by the detaining authority along with the detention order was duly served on the detenu.

The detenu made a representation on August 28, 2021, to the detaining authority. The said representation was rejected by the State Government and the rejection order dated September 18, 2021 was communicated to the detenu by the Home Secretary to the Government of Tripura.

Thereafter, the State Government made a reference in respect of the matter to the State Advisory Board. The board opined that there were sufficient causes for the detention of the petitioner. Pursuant to the report of the board, the State Government confirmed the detention order for a period of 1(one) year w.e.f. the date of his detention.

Challenging his detention order, the detenu moved to the HC mainly on the following grounds:

• The orders whereunder the detenu was granted bail in two cases prior to the issuance of the detention order were not placed before the detaining authority.
• Non-placement of these vital documents before the detaining authority and non-consideration of the same by the detaining authority vitiated the detention order because those were necessary to arrive at a subjective satisfaction as contemplated under subsection (1) of section 3 of PITNDPS Act for issuing detention order.

High Court's observations 

The Court at the outset noted that in the detention order, there was no reference to the bail orders, and the same were not placed before the detaining authority and as a result, the Court came to the following conclusion:

"Absence of awareness of such essential facts on the part of the detaining authority, in our view, resulted in non-application of mind which obviously affected the subjective satisfaction of the detaining authority. None can say with certainty that such bail orders, if placed before the detaining authority and considered by such authority would not have persuaded him to desist from passing such order of detention...In our considered view, the bail orders were the most pertinent and proximate matters which cannot be discarded as irrelevant and remote in the given fact situation of the case, and as such those orders should have been placed before the detaining authority for consideration and arriving at a subjective satisfaction as contemplated under subsection (1) of section 3 of PITNDPS Act to arrive at a conclusion with regard to the necessity of the preventive detention of the detenu." [emphasis supplied]

Therefore, the Court concluded that in the given facts and circumstances of the case, the orders whereunder the detenu was granted bail in the cases referred to in the detention order were relevant and vital documents and nonconsideration of those documents by the detaining authority resulted in his non-application of mind which had vitiated the detention order passed by him.

In view of this, the petition stood allowed and the impugned detention order was set aside.

Case title - Bishu Kumar Tripura v. State of Tripura and Others
Case citation:

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