Preventive Detention Will Be Vitiated By Unexplained Delay In Passing Order, Withholding Of Relevant Material : Supreme Court

The Supreme Court observed that unreasonable and unexplained delay in passing the order of detention from the date of the proposal can vitiate the detention order.

The bench of CJI Uday Umesh Lalit, Justices S. Ravindra Bhat and JB Pardiwala observed that there should be "live and proximate link" between the grounds of detention and the purpose of detention

In this case, the detenu was detained under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. The Tripura High Court dismissed the writ petition  questioning the legality and validity of the detention order.

In appeal, the court noted that the proposal to take steps to preventively detain the appellant is dated 28th of June 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, the bench noted.

The Court observed that there are series of decisions which held that an unreasonable and unexplained delay in securing a detenu and detaining him vitiates the detention order. Observing that the same principles would apply even in the case of delay in passing the order of detention from the date of the proposal, the bench said:

"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 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 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."

The court noted that the detaining authority after the receipt of the proposal from the sponsoring authority was indifferent in passing the order of detention with greater promptitude. 

The appellant also submitted 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.

"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 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.", the court said while quashing the detention order.

Case details

Sushanta Kumar Banik vs State of Tripura | 2022 LiveLaw (SC) 813 | CrA 1708 OF 2022 | 30 September 2022 |  CJI Uday Umesh Lalit, Justices S. Ravindra Bhat and JB Pardiwala

Counsel

Advocate Madhumita Bhattacharjee for appellant, Advocate Nachiketa Joshi for the State

Headnotes

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act 1988 - Detention - 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 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 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. (Para 20)

Preventive Detention - 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 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)

Preventive Detention : it emerges that the requisite subjective satisfaction, the formation of which is a condition precedent to passing of a detention order 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 order (Para 26)

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - Narcotic Drugs and Psychotropic Substances Act, 1986 ; Section 37 - If detenue 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. (Para 23)

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