Supreme Court quashes detention order under PIT NDPS Act due to delay and suppression of facts: Sushanta Kumar Banik vs. State of Tripura (2022) INSC 771 (30 September 2022)

Date of the Judgment: 30 September 2022

Citation: (2022) INSC 771

Judges: Uday Umesh Lalit, CJI., S. Ravindra Bhat, J., J.B. Pardiwala, J.

Can a preventive detention order be upheld if there is a significant delay between the proposal for detention and the actual order, and if critical information was withheld from the detaining authority? The Supreme Court of India addressed this crucial question in a recent case concerning the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. The Court examined whether a delay in issuing a detention order and the suppression of the fact that the detenu was already on bail, vitiated the detention order. The judgment was delivered by a three-judge bench comprising Chief Justice Uday Umesh Lalit, Justice S. Ravindra Bhat, and Justice J.B. Pardiwala, with Justice Pardiwala authoring the opinion.

Case Background

The case revolves around Sushanta Kumar Banik, who was detained under Section 3(1) of the PIT NDPS Act. The detention order was based on a proposal from the police citing Banik’s alleged involvement in drug trafficking. The proposal was initiated on June 28, 2021, by the Sub-Divisional Police Officer, Amtali, West Tripura, and forwarded to the Superintendent of Police (C/S), West Tripura, Agartala. The proposal highlighted two prior cases against Banik under the NDPS Act, 1985. The first case, dated November 5, 2019, involved the seizure of 92 grams of brown sugar (heroin) and 7600 yaba tablets. The second case, dated April 25, 2021, involved the recovery of suspected heroin and cash from Banik. Based on these, the police proposed preventive detention to stop Banik from further engaging in drug trafficking.

The detention order was eventually issued by the Government of Tripura on November 12, 2021. Banik challenged this order in the High Court of Tripura at Agartala, which rejected his petition. Banik then appealed to the Supreme Court.

Timeline:

Course of Proceedings

The appellant, Sushanta Kumar Banik, initially challenged the detention order by filing a writ petition in the High Court of Tripura at Agartala. The High Court, however, rejected the writ petition, upholding the detention order. Subsequently, Banik appealed to the Supreme Court of India against the High Court’s decision.

Legal Framework

The case primarily concerns the interpretation and application of Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PIT NDPS Act), which allows for preventive detention to curb illicit drug trafficking. The court also considered Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), which restricts the grant of bail for offences under the Act.

Section 3(1) of the PIT NDPS Act states:

“3. Power to make orders detaining certain persons.—(1) The Central Government or a State Government, or any officer of such Government, not below the rank of a Secretary to the Government, specially empowered in this behalf by that Government, may, if satisfied with respect to any person that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary so to do, make an order directing that such person be detained.”

Section 37 of the NDPS Act, 1985 states:

“Section 37. Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)—
(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 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, 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 Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.”

Arguments

Appellant’s Submissions:

• The appellant argued that there was an unexplained delay in passing the detention order from the date of the proposal, which broke the “live and proximate link” between the alleged prejudicial activities and the purpose of detention.
• The appellant contended that the detaining authority was not informed that the appellant had been granted bail in both the criminal cases, which was a crucial fact that should have been considered.
• The appellant submitted that the suppression of the bail orders vitiated the subjective satisfaction of the detaining authority.

State’s Submissions:

• The State argued that the detention order was valid and necessary to prevent the appellant from engaging in further drug trafficking.
• The State attempted to justify the detention based on the appellant’s past involvement in drug-related offenses.
• The State did not provide any specific explanation for the delay in issuing the detention order or the omission of the bail information.

Issues Framed by the Supreme Court

1. Whether the delay in passing the order of detention from the date of the proposal snapped the “live and proximate link” between the prejudicial activities and the purpose of detention.
2. Whether the detaining authority’s failure to consider that the appellant was released on bail in the relied criminal cases vitiated the detention order.

Treatment of the Issue by the Court

Authorities

The Supreme Court relied on several key cases to support its decision:

The court also considered the provisions of Section 3(1) of the PIT NDPS Act and Section 37 of the NDPS Act, 1985.

Judgment

How each authority was viewed by the Court?

• The Supreme Court relied on Ashok Kumar v. Delhi Administration and Ors. [(1982) 2 SCC 403]* to highlight that preventive detention is to prevent, not punish.
• The Supreme Court relied on Sk. Nizamuddin v. State of West Bengal [(1975) 3 SCC 395]* to show that delay in arrest or detention raises doubts on the genuineness of the detaining authority’s satisfaction.
• The Supreme Court relied on Suresh Mahato v. The District Magistrate, Burdwan, and Ors. [(1975) 3 SCC 554]* to emphasize that unexplained delays undermine the genuineness of the detaining authority’s satisfaction.
• The Supreme Court relied on Bhawarlal Ganeshmalji v. State of Tamil Nadu [(1979) 1 SCC 465]* to show that a “live and proximate link” is necessary between the grounds of detention and the purpose, and that delay can sever this link.
• The Supreme Court relied on Shafiq Ahmed v. District Magistrate, Meerut and Ors. [(1989) 4 SCC 556]* to show that undue delay indicates a lack of real apprehension of prejudicial acts.
• The Supreme Court relied on Asha Devi v. Additional Chief Secretary to the Government of Gujarat and Anr. [1979 Crl LJ 203]* to highlight that if material or vital facts which would influence the minds of the detaining authority are not placed before or considered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal.

The Supreme Court held that the delay in passing the detention order and the suppression of the fact that the appellant was on bail vitiated the detention order. The Court emphasized that preventive detention is a serious invasion of personal liberty and that the safeguards provided by the Constitution and relevant laws must be strictly adhered to.

The Court stated, “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.”

The Court further noted, “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 court also observed, “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 trial of those criminal cases was pending.”

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by two critical factors: the unexplained delay in issuing the detention order and the suppression of the fact that the detenu was already on bail. The Court emphasized that preventive detention is a serious infringement on personal liberty and that any procedural lapses or withholding of vital information can invalidate the detention order. The court’s reasoning was heavily based on the principle that the detaining authority must act promptly and with full knowledge of all relevant facts to ensure that the detention is justified and not arbitrary.

Key Takeaways

• Preventive detention orders must be issued promptly after the proposal to maintain a “live and proximate link” to the alleged prejudicial activities.
• Detaining authorities must be fully informed of all material facts, including any bail orders, that could influence their decision.
• Suppression of vital facts can vitiate the subjective satisfaction of the detaining authority, rendering the detention order invalid.
• The Supreme Court emphasizes the importance of personal liberty and the strict adherence to procedural safeguards in preventive detention cases.

Directions

The Supreme Court directed that the appellant, Sushanta Kumar Banik, be released from custody immediately if not required in any other case.

Development of Law

The ratio decidendi of this case is that a detention order under the PIT NDPS Act can be quashed if there is an unexplained delay between the proposal and the order, and if vital information, such as the fact that the detenu is on bail, is withheld from the detaining authority. This judgment reinforces the existing legal principles regarding preventive detention, emphasizing the need for prompt action and full disclosure of relevant facts. This case does not change the previous position of law but reinforces the safeguards against arbitrary detention.

Conclusion

The Supreme Court’s decision in Sushanta Kumar Banik vs. State of Tripura underscores the importance of procedural fairness and transparency in preventive detention cases. The Court quashed the detention order due to an unreasonable delay in its issuance and the suppression of critical information about the detenu’s bail status. This judgment serves as a reminder that preventive detention, which infringes on personal liberty, must be exercised with utmost caution and adherence to legal safeguards.

Category

Parent category: Criminal Law

Child categories: Preventive Detention, Narcotic Drugs and Psychotropic Substances Act, 1985, Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, Bail, Section 3(1), Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, Section 37, Narcotic Drugs and Psychotropic Substances Act, 1985

FAQ

Q: What is preventive detention?

A: Preventive detention is the act of detaining a person to prevent them from committing future crimes or harmful acts, rather than punishing them for past offenses.

Q: What is the PIT NDPS Act?

A: The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, allows the government to detain individuals to prevent them from engaging in drug trafficking.

Q: Why was the detention order in this case quashed?

A: The detention order was quashed because there was an unexplained delay of almost five months between the proposal for detention and the actual order, and because the detaining authority was not informed that the person was already on bail.

Q: What is the “live and proximate link” in preventive detention?

A: The “live and proximate link” refers to the connection between the grounds for detention and the purpose of detention. This link must be maintained to ensure the detention is justified and not arbitrary.

Q: What does it mean when the court says the “subjective satisfaction” of the detaining authority was vitiated?

A: It means that the detaining authority’s decision to detain was not based on a complete and accurate understanding of the facts, which undermines the validity of the detention order.

Q: What is Section 37 of the NDPS Act?

A: Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, restricts the grant of bail for offenses under the Act. It requires the court to be satisfied that the accused is not guilty and is unlikely to commit any offense while on bail.

Q: What are the implications of this judgment?

A: This judgment reinforces the need for prompt action and full disclosure of relevant facts in preventive detention cases, emphasizing that any procedural lapses or withholding of vital information can invalidate a detention order.