Madhya Pradesh High Court
Mr. Mahesh @ Akash Sonkar vs The State Of M. P. on 3 March, 2025
Author: Vivek Rusia
Bench: Vivek Rusia, Prem Narayan Singh
NEUTRAL CITATION NO. 2025:MPHC-IND:5559
1 WP-4862-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
ON THE 3 rd OF MARCH, 2025
WRIT PETITION No. 4862 of 2025
MR. MAHESH @ AKASH SONKAR
Versus
THE STATE OF M. P. AND OTHERS
Appearance:
Shri Sanjay Chouhan - Aadvocate for the petitioner.
Shri Sudeep Bhargava - Dy. A.G. for respondents/State.
ORDER
Per: Justice Vivek Rusia
1. Petitioner has filed this present petition challenging the order of detention
dated 3.12.2024, whereby he has been directed to be detained for a period of 6
months under the provisions of Section 3(1) of the NDPS Act.
2. The Additional Police Commissioner vide letter dated 15.11.2024
requested the Commissioner (Revenue) for initiation of detention proceedings
against this petitioner on the basis of six criminal cases, out of which two are
under the NDPS Act. On the basis of the said material, order of detention has been
passed on 3.12.2024 and on the same day petitioner was taken into detention and
sent to the Central Jail, Bhopal. According to the petitioner, the order of detention
was supplied in jail on the same day.
3. Petitioner has challenged the aforesaid order on the ground that in Crime
No.64/2024 he has been enlarged on bail by this Court vide order dated 18.7.2024
Signature Not Verified
Signed by: TRILOK SINGH
SAVNER
Signing time: 03-03-2025
17:13:34
NEUTRAL CITATION NO. 2025:MPHC-IND:5559
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passed in MCRC No.29856/2024 as the quantity of Ganja was less than the
commercial quantity. So far as the other criminal cases are concerned, he was
found consuming Ganja, therefore, fine of Rs.1000/- was imposed and sentence of
’till rising of the court’. Therefore, in these two offences under the NDPS Act the
proceedings of detention ought not to have been initiated against him. So far as
the other criminal cases are concerned, they all are minor offences of the year
2020 to 2022. Therefore, the impugned order is liable to be quashed.
4. Learned counsel for the petitioner has placed reliance on the judgment
passed by the Apex Court in the case of Sushanta Kumar Banik Vs. State of
Tripura and others vide order dated 30.9.2022 passed in Criminal Appeal No.1708
of 2022, in which the order of detention has been quashed based on the case
registered under the NDPS Act in which the bail has been granted. Relevant paras
of the order is reproduced below:-
“22. As noted above, in the case on hand, in both the cases relied
upon by the detaining authority for the purpose of preventively
detaining the appellant herein, the appellant was already ordered to be
released on bail by the concerned Special Court. Indisputably, we do
not find any reference of this fact in the proposal forwarded by the
Superintendent of Police, West Tripura District while requesting to
process the order of detention. The reason for laying much stress on
this aspect of the matter is the fact that the appellant though arrested in
connection with the offence under the NDPS Act, 1985, the Special
Court, Tripura thought fit to release the appellant on bail despite the
rigours of Section 37 of the NDPS Act, 1985. Section 37 of the NDPS
Act, 1985 reads thus:
“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, andSignature Not Verified
Signed by: TRILOK SINGH
SAVNER
Signing time: 03-03-2025
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NEUTRAL CITATION NO. 2025:MPHC-IND:55593 WP-4862-2025
(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.”
23. A plain reading of the aforesaid provision would indicate that the
accused arrested under the NDPS Act, 1985 can be ordered to be
released on bail only if the Court is satisfied that there are reasonable
grounds for believing that the accused is not guilty of such offence and
that he is not likely to commit any offence while on bail. 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.
24. In Asha Devi v. Additional Chief Secretary to the Government of
Gujarat and Anr., 1979 Crl LJ 203, this Court pointed out that:
“… if material or vital facts which would influence the
minds of the detaining authority one way or the other on the
question whether or not to make the detention order, are not
placed before or are not considered by the detaining
authority it would vitiate its subjective satisfaction rendering
the detention order illegal.”
25. In Sk. Nizamuddin (supra) this Court observed as under:
“We should have thought that the fact that a criminal case is
pending against the person who is sought to be proceeded
against by way of preventive detention is a very material
circumstance which ought to be placed before the District
Magistrate. The circumstance might quite possible have an
impact on his decision whether or not to make an order of
detention. It is not altogether unlikely that the District
Magistrate may in a given case take the view that since a
criminal case is pending against the person sought to be
detained, no order of detention should be made for the
present, but the criminal case should be allowed to run its
full course and only if it fails to result in conviction, then
preventive detention should be resorted to. It would be most
unfair to the person sought to be detained not to disclose theSignature Not Verified
Signed by: TRILOK SINGH
SAVNER
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NEUTRAL CITATION NO. 2025:MPHC-IND:55594 WP-4862-2025
pendency of a criminal case against him to the District
Magistrate.”
26. From the above decisions, 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.
27. 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.
28. 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.
29. In view of the aforesaid discussion, this appeal succeeds and is
hereby allowed. The impugned judgment and order passed by the High
Court of Tripura is set aside. The order of preventive detention passed
by the State of Tripura dated 12.11.2021 is hereby quashed and set
aside. The appellant herein is ordered to be released forthwith from
custody if not required in any other case.”
5. The respondents have filed the reply in order to justify the impugned
order. It is submitted that the order of detention has been approved by the State
Government as well as Advisory Board on the basis of criminal record of the
present petitioner.
6. We have examined the order of detention dated 3.12.2024 and the
grounds of detention.
7. In the order of detention, the petitioner has not been informed that he has
a remedy of filing representation before the detaining authority, State Government
as well as Central Government. However, the said fact is mentioned in the
Signature Not Verified
Signed by: TRILOK SINGH
SAVNER
Signing time: 03-03-2025
17:13:34
NEUTRAL CITATION NO. 2025:MPHC-IND:5559
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grounds but as per the reply, the grounds of detention were not supplied to the
petitioner. There is only receiving of order of detention. Even otherwise, petitioner
has already undergone three months of detention.
8. The Apex Court in the case of Sarfaraz Alam Vs. Union of India and
others reported in (2024) 3 SCC 347 has held as under:-
“11. On the second aspect, a detenue has to be informed that he has a
right to make a representation. Such a communication of his right can
either be oral or in writing. This right assumes importance as a detenue
in a given case may well be a literate, semi-literate or illiterate person.
Therefore, it becomes a cardinal duty on the part of the authority that
serves the grounds of detention to inform a detenue of his right to make
a representation.”
9. In view of the above, the writ petition is allowed. The impugned order of
detention dated 3.12.2024 is hereby quashed. The petitioner be released from the
custody forthwith, if not required in any other case.
(VIVEK RUSIA) (PREM NARAYAN SINGH)
JUDGE JUDGE
trilok
Signature Not Verified
Signed by: TRILOK SINGH
SAVNER
Signing time: 03-03-2025
17:13:34
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