Jharkhand High Court
Rampravesh Gupta @ Ramu Saw @ Ram Pravesh … vs The State Of Jharkhand Through The Chief … on 8 August, 2025
Bench: Sujit Narayan Prasad, Rajesh Kumar
2025:JHHC:22674-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) (DB) No.133 of 2025
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Rampravesh Gupta @ Ramu Saw @ Ram Pravesh Sao @
Ramu Sao, aged about 40 years, S/O Late Mahavir Saw,
R/O Village-Ramtunda, PO-Chatra & PS-Chatra Sadar,
Distt.-Chatra, Jharkhand. ... ... Petitioner
Versus
1. The State of Jharkhand through the Chief Secretary
Government of Jharkhand at Secretariat, Project
Bhawan, HEC Compound, PO & PS-Dhurwa, Distt.-
Ranchi, Jharkhand.
2. The Principle Secretary, Department of Home, Prison
and Disaster, Government of Jharkhand, Project
Bhawan, HEC Compound, PO & PS- Dhurwa, Distt.-
Ranchi, Jharkhand.
3. The Director General Of Police, Jharkhand Police
Headquarter, HEC Compound, PO & PS- Dhurwa, Distt.-
Ranchi, Jharkhand.
4. The Deputy Commissioner, Chatra, PO, PS & Distt.-
Chatra.
5. The Deputy Collector in charge, District General Branch,
Chatra, PO, PS & Distt.- Chatra.
6. The superintendent of Police, Chatra, PO & PS-Gidhour,
Distt.- Chatra, Jharkhand.
7. The Circle Officer, Gidhour, PO & PS- Gidhour, District-
Chatra, Jharkhand.
8. Praveen Kumar, S/o not known, A.S.I, Chatra Sadar
Police Station, PO & PS- Chatra, Distt.- Chatra,
Jharkhand.
9. Anand Kishore Osaga, S/o not known, A.S.I, Chatra
Sadar PS, PO & PS- Chatra, Distt.- Chatra, Jharkhand.
10. Pravesh Kumar Ram, S/o not known, A.S.I Chatra Sadar
PS, PO & PS- Chatra, Distt.- Chatra, Jharkhand.
11. The DIG, Investigation Department, CID, Ranchi,
Jharkhand, PO & PS- Doranda, Distt.- Ranchi.
Jharkhand. ... ... Respondents
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CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Petitioner : Mr. P.S. Dayal, Advocate
: Mr. Pankaj Kumar, Advocate
For the Respondent : Mr. Deepankar, A.C. to G.P.-III
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C.A.V. on 17.07.2025 Pronounced on 08/08/2025
Per Sujit Narayan Prasad, J.
1. This writ petition has been filed under Article 226 of
the Constitution of India for quashing the order dated
14.05.2024 passed in Memo No.18/PIT NDPS-23/2024-
3039 and order dated 14.05.2024 passed in 18/PIT NDPS-
23/2024-3041 issued by the Principal Secretary, Home,
Prison & Disaster Management Department, Government of
Jharkhand, Ranchi, under Prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substances Act, 1988
(hereinafter to be referred to as the Act,1988) by which the
petitioner has been directed to be detained in confinement.
Factual Matrix
2. The brief facts of the case as per the pleading made
in the writ petition, which are required to be enumerated,
read as under: –
3. It is the case of the petitioner that the order of
detention dated 14.05.2024 passed in 18/PIT NDPS-
23/2024-3041, by respondent no.2, shows that the
detaining authority has observed that the petitioner is
engaged in repeated cases of illicit traffic in narcotic drugs
and psychotropic substances which pose a serious threat to
the health and welfare of the people and harmful to the
society and further that with a view to prevent the
petitioner from committing any of the acts within the
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meaning of illicit traffic and also against the general public
especially the younger generation from the use and
occupation of the drugs, it is necessary to detain him.
4. It is the further case of the petitioner that the
petitioner came to know about his detention, after receiving
the letters vide letter no. 239 and 240 both dated
27.06.2024 issued by the Deputy Collector, District General
Branch,Chatra (respondent no.5) to the Circle
Officer,Chatra(respondent no.7).
5. The petitioner had been implicated in connection
with- Chatra Sadar P.S. Case No.123 of 2020 dated
13.05.2020 for offence u/s 17(C), 18(C), 22(C) and 29 of
NDPS Act; Chatra Sadar P.S. Case No.01 of 2021 dated
01.01.2021 under Section 18 of NDPS Act; Chatra Sadar
P.S. Case No.06 of 2021 dated 13.01.2021 under section 18
of NDPS Act; Itkhori P.S. case No. 210 of 2020 dated
30.12.2020 under section 18 of NDPS Act and Barhi
(Hazaribagh) P.S. Case No. 175 of 2007 dated 22.08.2007
under section 15/8 of NDPS Act
6. Apart from the aforesaid F.I.R., the Respondents
lodged some Sanhas against the petitioner, which are as
follows:-
(i) Station diary entry bearing Chatra Sadar P.S..
Sanha No-23/2024 dated 17.03.2024 has been
lodged by A.S.I. Praveen Kumar, Chatra Sadar
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Police Station, against the petitioner for opium
smuggling activities.
(ii) Station diary entry bearing Chatra Sadar P.S..
Sanha No-24/2024 dated 22.03.2024 has been
lodged by A.S.I. Anand Kishore Osga, Chatra Sadar
Police Station, against the petitioner and others for
opium smuggling activities.
(iii) Station diary entry bearing Chatra Sadar P.S..
Sanha No-21/2024 dated 23.03.2024 has been
lodged by A.S.I. Pravesh Kumar Ram, Chatra Sadar
Police Station, against the petitioner and others for
opium and Brown Sugar smuggling activities.
7. It has been stated 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.
8. Petitioner has already been enlarged on regular bail
by the Hon’ble High Court in Chatra Sadar P.S. Case
No.123 of 2020; Chatra Sadar P.S. Case No.01 of 2021 and
Itkhori P.S. case No. 210 of 2020.
9. In Chatra Sadar P.S. Case No.06 of 2021, the
petitioner has already been discharged from all the charges
by the learned trial court in NDPS Case No. 87 of 2021 and
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the same is suggestive that the Court concerned might have
not 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.
10. Further, the State never thought to even challenge
the bail orders passed by the court releasing the petitioner
on bail.
11. The said decision of the State has been challenged
by filing the instant writ petition.
Submission of the learned counsel appearing for the
petitioner:
12. Learned counsel appearing for the petitioner has
taken the following grounds in assailing the impugned
decision: –
(i) The writ petitioner has illegally been confined without
any subjective satisfaction of the competent authority
as also the Advisory Board has confirmed the decision
of confinement without taking into consideration the
issue of subjective satisfaction of the competent
authority.
(ii) The issue of subjective satisfaction, in the facts of the
present case, is relevant since the writ petitioner was
made accused in connection with the cases of illicit
5
2025:JHHC:22674-DBtrafficking of narcotic drugs and psychotropic
substances. In the detention order dated 14.05.2024,
there is reference of to Chatra Sadar P.S. Case No.06
of 2021, in which the petitioner has already been
discharged from all the charges. Petitioner has already
been enlarged on regular bail by the Hon’ble High
Court in Chatra Sadar P.S. Case No.123 of 2020;
Chatra Sadar P.S. Case No.01 of 2021 and Itkhori P.S.
case No. 210 of 2020. Thereafter, sanhas although
have been made and based upon that, the petitioner
has been detained by passing the order of detention in
exercise of power conferred under Section 3(1) of
Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988.
(iii) The contention has been raised that if the order of the
competent sanctioning authority will be taken into
consideration, it would be evident that there is no
reference of the issue of acquittal and release on bail
of the petitioner.
(iv) It has further been contended that the petitioner has
been released on bail/acquitted also which fact has
also not been brought before the authority at the time
of passing of the impugned orders.
(v) Therefore, it is a case where the sanctioning authority
cannot be said to have the subjective satisfaction,
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rather, in absence of the material having not been
perused since it was not placed before the District
Authority, hence, there is lack of subjective
satisfaction.
(vi) It is a case where the petitioner although have been
ordered to be detained vide order dated 14.05.2024
but the petitioner was taken into custody on
18.09.2024 i.e., after lapse of about more than 4
months. Hence, the slackness which has been shown
by the authority in putting the petitioner behind
confinement appears to be not available, otherwise,
the petitioner would have been detained in
confinement in order to effect the order of detention.
(vii) It has been contended that even the ground of
absconding will be of no any aid to the State and if
that ground is said to be available then it was the
bounden duty of the State to take recourse to Section
8 of the Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988, wherein the
procedure has been laid down to deal with the
absconders in order to effect the order of detention.
13. Learned counsel for the petitioner has relied on
judgment rendered by the Apex Court delivered in case of
Sushanta Kumar Banilk Vs. State of Tripura and
Others reported in 2022 SCC Online SC 1333.
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14. Learned counsel, based upon the aforesaid grounds,
has submitted that the order of detention, therefore, suffers
from error and hence not sustainable in the eye of law.
Submission made by the learned counsel for the State
15. Per contra, Mr. Deepankar, learned A.C. to G.P.-III
appearing for the State, has submitted on the basis of the
counter affidavit filed on behalf of the State that there is no
error in the impugned decision, since, the petitioner was
found to be habitual in trafficking of the narcotics which
would be evident from the institution of First Information
Reports and Sanhas.
16. It has been contended that so far the argument
which has been advanced on behalf of the petitioner that
due to the non-arrest of the petitioner for a period of about
four months, the order of detention should not have been
passed and not arresting the petitioner in execution of the
order of detention itself suggest that there was no need of
passing of order of detention is concerned, the petitioner
cannot be allowed to take advantage of the same since
petitioner was absconding. Hence, it is incorrect on the
part of the petitioner to say that the order of detention is
not for the useful purpose.
17. Learned counsel has submitted that it is also
incorrect on the part of the petitioner to take the ground
that there is no subjective satisfaction, rather, each and
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every aspect of the matter has been taken into
consideration by the competent sanctioning authority of the
State Government which on being deliberated by the
Advisory Board has upheld the decision so taken by the
State. When two authorities have upheld the issue of
confining the petitioner in detention, it cannot be said that
there is no subjective satisfaction.
18. Learned counsel appearing for the State, based
upon the aforesaid grounds, have submitted that it is,
therefore, not a case where the order of detention is said to
suffer from an error.
Analysis
19. We have heard learned counsel for the parties and
gone through the order of detention as also the pleadings
made on behalf of the petitioner and the State as available
in the writ petition and the counter affidavits.
20. The issues which require consideration herein are –
(i) Whether in the facts and circumstances of the present
case, can it be said that the authorities have got the
subjective satisfaction while passing the order of
detention?
(ii) Whether the issue of subjective satisfaction can be
said to be made out if the documents in entirety have
not been placed by the District Authority along with
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the proposal before the Sanctioning Authority of State
Government to apply its proper mind?
(iii) Whether the order of detention can be passed in such
a casual manner where the issue of the fundamental
right as conferred under Article 22 of the Constitution
of India particularly Sub-clause (5) thereof, is there?
(iv) Whether the issue of absconding which has been
taken on behalf of the State can be said to be
acceptable in absence of any recourse having been
taken of the procedure as provided under Section 8 of
the Act, 1988?
21. All the issues since are interlinked, as such, the
issues are being taken up together for its consideration.
But, before considering the said issues, the statutory
provision as contained under the Prevention of Illicit Traffic
in Narcotic Drugs and Psychotropic Substances Act, 1988
with its object and intent needs to be referred herein.
22. The Narcotic Drugs and Psychotropic Substances
Act, 1988 has been enacted keeping in view that in recent
years, India has been facing a problem of transit traffic in
illicit drugs. The spillover from such traffic has caused
problems of abuse and addiction. This trend has created an
illicit demand for drugs within the country which may
result in the increase of illicit cultivation and manufacture
of drugs. Although a number of legislative, administrative
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and other preventive measures, including the deterrent
penal provisions in the Narcotic Drugs and Psychotropic
Substances, Act, 1985, have been taken by the
Government, the transit traffic in illicit drugs had not been
completely eliminated. It was, therefore, felt that a
preventive detention law should be enacted with a view to
effectively immobilising the traffickers. The Conservation of
Foreign Exchange and Prevention of Smuggling Activities
Act, 1974 provides for preventive detention in relation to
smuggling of drugs and psychotropic substances, but it
cannot be invoked to deal with persons engaged in illicit
traffic of drugs and psychotropic substances within the
country. It was, therefore, felt that a separate legislation
should be enacted for preventive detention of persons
engaged in any kind of illicit traffic in narcotic drugs and
psychotropic substances.
23. The relevant provisions which require consideration
are Section 3, 6, 8, 9 and 11 of the Act,1988, which are
necessary to be referred herein which read hereunder as :-
3. Power to make orders detaining certain persons.-(I)
The Central Government or a State Government, or any
officer of the Central Government, not below the rank of a
Joint Secretary to that Government, specially empowered for
the purposes of this section by that Government, or any
officer of a State Government, not below the rank of a
Secretary to that Government, specially empowered for the
purposes of this section by that Government, may, if
satisfied, with respect to any person (including a foreigner)11
2025:JHHC:22674-DBthat, 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.
(2) When any order of detention is made by a State
Government or by an officer empowered by a State
Government, the State Government shall, within ten days,
forward to the Central Government a report in respect of the
order.
(3) For the purposes of clause (5) of Article 22 of the
Constitution, the communication to a person detained in
pursuance of a detention order of the grounds on which the
order has been made shall be made as soon as may be after
the detention, but ordinarily not later than five days, and in
exceptional circumstances and for reasons to be recorded in
writing, not later than fifteen days, from the date of
detention.
6. Grounds of detention severable.-Where a person has
been detained in pursuance of an order of detention under
sub-section (1) of section 3 which has been made on two or
more grounds, such order of detention shall be deemed to
have been made separately on each of such grounds and
accordingly-
(a) such order shall not be deemed to be invalid or
inoperative merely because one or some of the grounds is or
are-
(i) vague,
(ii) non-existent,
(iii) not relevant,
(iv) not connected or not proximately connected with
such person, or
(v) invalid for any other reason whatsoever,
and it is not therefore possible to hold that the Government
or officer making such order would have been satisfied as
provided in sub-section (I) of section 3 with reference to the
remaining ground or grounds and made the order of
detention;
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(b) the Government or officer making the order of
detention shall be deemed to have made the order of
detention under the said sub-section (I) after being satisfied
as provided in that sub-section with reference to the
remaining ground or grounds.
8. Powers in relation to absconding persons.-(l) If the
appropriate Government has reason to believe that a person
in respect of whom a detention order has been made has
absconded or is concealing himself so that the order cannot
be executed, that Government may-
(a) make a report in writing of the fact to a Metropolitan
Magistrate or a Magistrate of the first class having
jurisdiction in the place where the said person
ordinarily resides; and thereupon the provisions of
sections 82, 83, 84 and 85 of the Code of Criminal
Procedure, 1973 (2 of 1974) shall apply in respect of
the said person and his property as if the order
directing that he be detained were a warrant issued by
the Magistrate;
(b) by order notified in the Official Gazette direct the said
person to appear before such officer, at such place and
within such period as may be specified in the order;
and if the said person fails to comply with such
direction, he shall, unless he proves that it was not
possible for him to comply therewith and that he had,
within the period specified in the order, informed the
officer mentioned in the order of the reason which
rendered compliance therewith impossible and of his
whereabouts, be punishable with imprisonment for a
term which may extend to one year, or with fine, or
with both.
(2) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), every offence under
clause (b) of sub-section (I) shall be cognizable.
9. Advisory Boards.-For the purposes of sub-clause (a) of
clause (4) and subclause (c) of clause (7) of article 22 of the
Constitution,-
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(a) the Central Government’ and each State Government
shall, whenever necessary, constitute one or more
Advisory Boards each of which shall consist of a
Chairman and two other persons possessing the
qualifications specified in sub-clause (a) of clause (4) of
article 22 of the Constitution;
(b) save as otherwise provided in section 10, the
appropriate Government shall, within five weeks from
the date of detention of a person under a detention
order, make a reference in respect thereof to the
Advisory Board constituted under clause (a) to enable
the Advisory Board to make the report under sub-
clause (a) of clause (4) of article 22 of the Constitution;
(c) the Advisory Board to which a reference is made under
clause (b) shall after considering the reference and the
materials placed before it and after calling for such
further information as it may deem necessary from the
appropriate Government or from any person, called for
the purpose through the appropriate Government or
from the person concerned, and if, in any particular
case, it considers it essential so to do or if the person
concerned desires to be heard in person, after hearing
him in person, prepare its report specifying in a
separate paragraph thereof its opinion as to whether or
not there is sufficient cause for the detention of the
person concerned and submit the same within eleven
weeks from the date of detention of the person
concerned;
(d) when there is a difference of opinion among the
members forming the Advisory Board, the opinion of
the majority of such members shall be deemed to be
the opinion of the Board;
(e) a person against whom an order of detention has been
made under this Act shall not be entitled to appear by
any legal practitioner in any matter connected with the
reference to the Advisory Board and the proceedings of
the Advisory Board and its report, excepting that part
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of the report in which the opinion of the Advisory
Board is specified, shall be confidential;
(f) in every case where the Advisory Board has reported
that there is in its opinion sufficient cause for the
detention of a person, the appropriate Government
may confirm the detention order and continue the
detention of the person concerned for such period as it
thinks fit and in every case where the Advisory Board
has reported that there is in its opinion no sufficient
cause for the detention of the person concerned, the
appropriate Government shall revoke the detention
order and cause the person to be released forthwith.
11. Maximum period of detention.-The maximum
period for which any person may be detained in
pursuance of any detention order to which the
provisions of section 10 do not apply and which has
been confirmed under clause (f) of section 9 shall be
one year from the date of detention, and the maximum
period for which any person may be detained in
pursuance of any detention order to which the
provisions of section 10 apply and which has been
confirmed under clause (f) of section 9, read with sub-
section (2) of section 10, shall be two years from the
date of detention:
Provided that nothing contained in this section
shall affect the power of appropriate Government in
either case to revoke or modify the detention order at
any earlier time.”
24. It is evident from the scope that the Act, 1988 has
been enacted since India has been facing a problem of
transit traffic in illicit drugs. It was, therefore, felt that a
preventive detention law should be enacted with a view to
effectively immobilising the traffickers. The Central
Government and the State Governments have been
empowered to make orders of detention with respect to any
15
2025:JHHC:22674-DBperson in respect of whom an order of detention is made
under the Ordinance at any time before the 31st July, 1990
may be detained without obtaining the opinion of an
Advisory Board for a period not exceeding one year from the
date of his detention if the detaining authority is satisfied
that such person is engaged, or is likely to engage, in illicit
traffic in narcotic drugs and psychotropic substances in
any area highly vulnerable to such illicit traffic.
25. The “illicit Traffic” has been defined as under
Section 2(e) of the Act, 1988 which reads hereunder as :-
2. (e) “illicit traffic”, in relation to narcotic drugs and psychotropic
substances, means-
(i) cultivating any coca plant or gathering any portion of
coca plant;
(ii) cultivating the opium poppy or any cannabis plant;
(iii) engaging in the production, manufacture, possession,
sale, purchase, transportation, warehousing,
concealment, use or consumption, import inter-State,
export inter-State, import into India, export from India
or transhipment, of narcotic drugs or psychotropic
substances;
(iv) dealing in any activities in narcotic drugs or
psychotropic substances other than those provided in
sub-clauses (i) to (iii); or
(v) handling or letting any premises for the carrying on of
any of the activities referred to in sub-clauses (i) to (iv),
other than those permitted under the Naroctic Drugs and
Psychotropic Substances Act, 1985 (61 of 1985) or any rule or
order made, or any condition of any licence, term or authorisation
issued, thereunder and includes-
(1) financing, directly or indirectly, any of the
aforementioned activities:
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(2) abetting or conspiring in the furtherance of or in
support of doing any of the aforementioned activities;
and
(3) harbouring persons engaged in any of the
aforementioned activities:
26. Section 3 of the Act, 1988 provides power to make
ordes detaining certain persons wherefrom it is evident that
the competent authority if satisfied, with respect to any
person (including a foreigner) 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.
But, for the purpose of clause (5) of Article 22 of the
Constitution, the communication to a person detained in
pursuance of a detention order of the grounds on which the
order has been made shall be made as soon as may be after
the detention, but ordinarily not later than five days, and in
exceptional circumstances and for reasons to be recorded
in writing, not later than fifteen days, from the date of
detention.
27. Section 8 provides by conferment of power upon the
appropriate Government that if the Government has reason
to believe that a person in respect of whom a detention
order has been made has absconded or is concealing
himself so that the order cannot be executed, that
Government may – (a) make a report in writing of the fact to
a Metropolitan Magistrate or a Magistrate of the first class
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having jurisdiction in the place where the said person
ordinarily resides; and thereupon the provisions of sections
82, 83, 84 and 85 of the Code of Criminal Procedure, 1973
(2 of 1974) shall apply in respect of the said person and his
property as if the order directing that he be detained were a
warrant issued by the Magistrate; (b) by order notified in
the Official Gazette direct the said person to appear before
such officer, at such place and within such period as may
be specified in the order; and if the said person fails to
comply with such direction, he shall, unless he proves that
it was not possible for him to comply therewith and that he
had, within the period specified in the order, informed the
officer mentioned in the order of the reason which rendered
compliance therewith impossible and of his whereabouts,
be punishable with imprisonment for a term which may
extend to one year, or with fine, or with both.
28. Section 9 of the Act, 1988 provides constitution of
an Advisory Board with an intent to achieve the purposes of
sub-clause (a) of clause (4) and subclause (c) of clause (7) of
article 22 of the Constitution of India with the conferment
of power upon the Advisory Board that if any reference has
been made and the materials placed before it and after
calling for such further information as it may deem
necessary from the appropriate Government or from any
person, called for the purpose through the appropriate
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Government or from the person concerned, and if, in any
particular case, it considers it essential so to do or if the
person concerned desires to be heard in person, after
hearing him in person, prepare its report specifying in a
separate paragraph thereof its opinion as to whether or not
there is sufficient cause for the detention of the person
concerned and submit the same within eleven weeks from
the date of detention of the person concerned.
29. The maximum period of detention has been
provided under Section 11 of the Act, 1988 and as provided
therein any person may be detained in pursuance of any
detention order to which the provisions of section 10 do not
apply and which has been confirmed under clause (f) of
section 9 shall be one year from the date of detention, and
the maximum period for which any person may be detained
in pursuance of any detention order to which the provisions
of section 10 apply and which has been confirmed under
clause (f) of section 9, read with sub-section (2) of section
10, shall be two years from the date of detention.
30. It is in the backdrop of the aforesaid statutory
provision, the factual aspect of the present case is to be
considered in order to consider the issue as formulated
hereinabove.
31. The Hon’ble Apex Court has also taken into
consideration the issue of detention and agreeing with the
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object of the preventive detention enactments, the law has
been laid down that since the power to detain a person is
snatching away the liberty as enshrined as a fundamental
right under the Constitution and, as such, the said power
is to be exercised with all care and circumspection so that
there may not be any vice of malice or the arbitrary exercise
on the part of the State to snatch away the personal liberty
of an individual.
32. It is for this reason also specific reference has been
made under Section 3(3) of the Act, 1988 wherein Clause
(5) of Article 22 of the Constitution of India has been
referred, meaning thereby, the mandate of the Constitution
as enshrined under Article 22 is mandatorily to be followed
so as to not to subject any individual from the vice of
arbitrariness for the purpose of snatching away the liberty
of an individual. But, simultaneously it has also been held
that if situation so warrants then the detention order can
be passed but subject to fulfilment of all requirements as
provided under Section 3, Section 6 and Section 8 of the
Act, 1988, by taking care of that the period of detention
does not exceed one year as provided under Section 11 of
the Act, 1988 so as to make balance while snatching away
the liberty of an individual, reference in this regard be
made to the judgment rendered by Hon’ble Apex Court in
the case of Mortuza Hussain Choudhary Vs. State of
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Nagaland and Others reported in 2025 SCC Online SC
502, wherein at para-2 Apex Court has held as follows-
“2. Preventive detention is a draconian measure whereby a
person who has not been tried and convicted under a penal
law can be detained and confined for a determinate period of
time so as to curtail that person’s anticipated criminal
activities. This extreme mechanism is, however, sanctioned
by Article 22(3)(b) of the Constitution of India. Significantly,
Article 22 also provides stringent norms to be adhered to
while effecting preventive detention. Further, Article 22
speaks of the Parliament making law prescribing the
conditions and modalities relating to preventive detention.
The Act of 1988 is one such law which was promulgated by
the Parliament authorizing preventive detention so as to curb
illicit trafficking of narcotic drugs and psychotropic
substances. Needless to state, as preventive detention
deprives a person of his/her individual liberties by detaining
him/her for a length of time without being tried and
convicted of a criminal offence, the prescribed safeguards
must be strictly observed to ensure due compliance with
constitutional and statutory norms and requirements.”
33. Adverting to the factual aspect of the present case,
it is the admitted case that the order of detention was
passed on 14.05.2024.
34. We have perused the aforesaid detention order of
the petitioner. The detention order of the petitioner was
issued by Respendent no.2 on 14.05.2024 and he was
detained on 18.09.2024. Subsequent thereto, i.e., after
passing of the order of detention, petitioner was not
immediately taken into custody in execution of order of
confinement. Rather, petitioner was taken into custody
after lapse of a period of more than four months. Thus,
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petitioner was allowed to remain outside the purview of
confinement order for a period more than four months
approximately.
35. Thus, in this pretext, submission has been made on
behalf of the petitioner that if that was the situation by not
arresting the petitioner, then for what the order of detention
was passed and if such was the conduct of the authority,
then passing of detention order itself suggests that there
was no requirement of passing the order of detention.
Otherwise, the petitioner would have been taken into
custody immediately after order of detention. Here, it is
pertinent to note that Hon’ble Apex Court in case of
Sushanta Kumar Banilk (Supra), at para-15 has said
that an unreasonable and unexplained delay in securing a
detenu and detaining him vitiates the detention order.
36. This Court has found substance in the said
argument keeping the object of the Act, 1988 which has
been enacted for the purpose of dealing with the traffickers
of narcotics by putting such person on detention even
without instituting an F.I.R. taking into consideration the
nature of offence which is said to be crime against society.
37. The question of subjective satisfaction has also been
taken. This Court, in order to appreciate the said argument,
has gone through the order of detention of the petitioner.
We find that in detention order dated 14.05.2024, there is
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reference to Chatra Sadar P.S. Case No.06 of 2021 dated
13.01.2024. But, the petitioner has annexed the copy of
Judgment dated 21.02.2023(Annexure- 1 series) passed in
NDPS case no. 87/2021, arising out of Chatra Sadar P.S.
Case No.06 of 2021, in which the learned Special Judge
(NDPS) has discharged the petitioner from all the charges.
Likewise, Petitioner has already been enlarged on regular
bail by the Hon’ble High Court in Chatra Sadar P.S. Case
No.123 of 2020; Chatra Sadar P.S. Case No.01 of 2021 and
Itkhori P.S. case No. 210 of 2020 and copy of the bail
orders has been annexed by the petitioner in Annexure-1
series.
38. At this juncture, it would be important to refer the
judgment delivered by the Hon’ble Apex Court in case of
Sushanta Kumar Banilk (Supra), wherein Apex court has
dealt the issue of vital material or vital fact withheld and
not placed by the sponsoring authority before the detaining
authority. Paragraph 25, 27 and 28 of the said judgment is
quoted hereinbelow for ready reference-
“25. In Asha Devi v. Additional Chief Secretary to the
Government of Gujarat, 1979 Cri 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.”
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27. 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.
28. 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.”
39. The question of subjective satisfaction, therefore,
assumes paramount satisfaction so far as the statutory
mandate as provided under Section 3 and the very object of
the Act, 1988 is concerned, wherein the subjective
satisfaction of the concerned authority is a primary
condition for passing the detention order, meaning thereby,
there must not be mechanical order.
40. The connotation of subjective satisfaction means
that the authority, who is proposing to put a person in
confinement, is to produce all relevant documents before
the sanctioning authority for its consideration before taking
any decision of snatching away the personal liberty.
Subjective satisfaction, therefore, means the active
application of mind and such active application of mind
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cannot be said to be made applicable in absence of the
relevant documents for which the person concerned is
being detained by infringement of his fundamental right as
enshrined under the Constitution of India.
41. The F.I.R. and Sanha is the basis of passing the
order of detention but very surprisingly the order of
discharge of the petitioner in connection with Chatra Sadar
P.S. Case No.06 of 2021 passed by the Learned Special
Judge (NDPS) in NDPS Case No. 87/2021 vide order dated
21.02.2023 was not placed before the Sanctioning
Authority. Further, orders granting regular bail to the
petitioner in Chatra Sadar P.S. Case No.123 of 2020;
Chatra Sadar P.S. Case No.01 of 2021 and Itkhori P.S. case
No. 210 of 2020 was not placed before the Sanctioning
Authority.
42. The sanctioning authority would have applied its
mind if the order of discharge and orders granting bail to
the petitioner would have been placed by the authority who
has proposed the order of detention.
43. The conduct of the proposing authority is further
appears to be not proper since the order of detention has
been given effect to after lapse of more than four months
which also clarifies that the conduct of the authority who
has proposed detention, said to be very casual.
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44. The mandate of the Act, 1988 prohibits that there
must not be casual approach by the authority while
passing the order of detention. The State, however, has
taken the plea that the delay in arrest is caused by the
petitioner himself since the petitioner was absconding.
Even accepting the same, but then the procedure has been
laid down under Section 8 of the Act, 1988 that what to be
done by the State machinery in order to secure the arrest of
such detenu. But, it is admitted case of the State that no
such procedure has been taken recourse as provided under
Section 8 of the Act, 1988, since, no submission to that
effect has been made in the counter affidavit.
45. This Court, on consideration of the aforesaid factual
aspect and applying the same on the teeth of Article 21 and
22 of the Constitution of India, is of the view that the liberty
of such person cannot be taken away in such a casual
manner as is the case herein.
46. This Court, therefore, is of the view that the orders
of detention need interference.
47. Accordingly, the order dated 14.05.2024 passed in
Memo No.18/PIT NDPS-23/2024-3039 and order dated
14.05.2024 passed in 18/PIT NDPS-23/2024-3041 issued
by the Principal Secretary, Home, Prison & Disaster
Management Department, Government of Jharkhand,
Ranchi, are hereby quashed and set aside.
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48. The writ petition stands allowed.
49. Consequently, the petitioner, abovenamed, is
directed to be released forthwith, if not required in any
other case.
I agree (Sujit Narayan Prasad, J.)
(Rajesh Kumar, J.) (Rajesh Kumar, J.)
A.F.R.
Birendra/
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