Jharkhand High Court
Sikandar Mahtha vs The State Of Jharkhand The Chief … on 8 August, 2025
Bench: Sujit Narayan Prasad, Rajesh Kumar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No.933 of 2024 (DB)
-----
Sikandar Mahtha, aged about 35 years, son of Mukund
Mahtha, resident of village-Gidhani, P.O.-Deopur, P.S.-
Jasidih, District-Deoghar. ... ... Petitioner
Versus
1. The State of Jharkhand the Chief Secretary Government
of Jharkhand, Project Building, P.O. Dhurwa, P.S.
Jagannathpur, District-Ranchi.
2. The Principal Secretary, Government of Jharkhand,
Department of Home, Jail and Disaster Department,
Project Building, P.O. Dhurwa, P.S. Jagannathpur,
District- Ranchi.
3. The Deputy Commissioner, Deoghar, P.O Deoghar, P.S.
Deoghar Town, District- Deoghar.
4. The Superintendent of Police Deoghar, P.O- Deoghar,
P.S.- Deoghar Town, District- Deoghar.
5. The Inspector of police-cum-Officer in charge, Jasidih
Police Station, P.O. & P.S.- Jasidih, District, Deoghar.
... ... Respondents
With
W.P.(Cr.) No.1001 of 2024 (DB)
-----
Banti Mahtha @ Sonu Mahtha, aged about 23 years, son of
Gopesh Mahtha, resident of village-Barmasia, P.O.-
Deoghar, P.S.-Deoghar Town, District-Deoghar.
... ... Petitioner
Versus
1. The State of Jharkhand the Chief Secretary Government
of Jharkhand, Project Building, P.O. Dhurwa, P.S.
Jagannathpur, District-Ranchi.
2. The Principal Secretary, Government of Jharkhand,
Department of Home, Jail and Disaster Department,
Project Building, P.O. Dhurwa, P.S. Jagannathpur,
District- Ranchi.
3. The Deputy Commissioner, Deoghar, P.O Deoghar, P.S.
Deoghar Town, District- Deoghar.
4. The Superintendent of Police Deoghar, P.O- Deoghar,
P.S.- Deoghar Town, District- Deoghar.
5. The Jail Superintendent, Birsa Munda Central Jail at
Hotwar, P.O.-Hotwar, P.S.-Khelgaon, District- Ranchi.
6. The Jail Superintendent, Central Jail, Deoghar, P.O.-
Deoghar, P.S.-Deoghar Town, District, Deoghar.
... ... 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. Sudhanshu Kr. Deo, Advocate
: Mr. Rajesh Kumar, Advocate
For the Respondent : Mr. Ashwini Bhushan, A.C. to Sr. SC-II
[in WP(Cr) No.933/2024]
: Mr. Deepankar, A.C. to G.P.-III
[in WP(Cr) No.1001/2024]
------
C.A.V. on 17.07.2025 Pronounced on 08/08/2025
Per Sujit Narayan Prasad, J.
Prayer in W.P.(Cr.) No.933 of 2024
1. This writ petition has been filed under Article 226 of
the Constitution of India for quashing the order dated
13.06.2024 passed in Reference No.18/PIT NDPS-25/2024-
3616 by the Principal Secretary, Home, Jail & 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 writ petitioner has
been directed to be detained in confinement.
During the pendency of the instant writ petition,
fresh order was passed on 24.02.2025 by which the
detention has been extended for a period of one year from
the date of detention which has also been challenged by
filing interlocutory application being I.A. No.3449 of 2025
seeking amendment in the writ petition, in the pleading and
prayer portion thereof.
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The said interlocutory application was allowed vide
order dated 03.04.2025.
The amended writ petition has also been filed.
The counter affidavit to the amended writ petition
has been filed.
Prayer in W.P.(Cr.) No.1001 of 2024
2. In this writ petition order dated 19.04.2024 passed
in Reference No.18/PIT NDPS-10/2024-2402 passed by the
Principal Secretary, Home, Jail & Disaster Management
Department, Government of Jharkhand, Ranchi, under the
Act,1988 has been challenged by which the writ petitioner
has been directed to be detained in confinement.
During the pendency of the instant writ petition,
fresh order was passed on 24.12.2024 by which the
detention has been extended for a period of one year from
the date of detention the same has also been challenged by
filing interlocutory application being I.A. No.675 of 2025
seeking amendment in the writ petition, in the pleading and
prayer portion thereof.
The said interlocutory application was allowed vide
order dated 25.02.2025.
The amended writ petition has also been filed.
The counter affidavit to the amended writ petition
has been filed.
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Factual Matrix
3. The brief facts of the case as per the pleading made
in the writ petition, which are required to be enumerated,
read as under:-
W.P.(Cr.) No.933 of 2024
4. It is the case of the petitioner in W.P.(Cr.) No.933 of
2024 that the order of detention dated 13.06.2024, in
Reference No. 18/PIT NDPS-25/2024-3616, passed 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 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.
5. It is the further case of the petitioner that the
Respondent No.4 S.P, Deoghar issued direction upon the
Respondent No. 5, to serve a copy of arrest-notice to the
petitioner in the light of Memo No. 460/D.C.B. order dated
06.07.2024 contained in Reference No.18/PIT NDPS-
25/2024-3616, passed by the Principal Secretary,
Government Jharkhand, Home, Jail & Disaster
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Department, Ranchi, and also to serve notice after arrest
and send the compliance-report.
6. The petitioner had been implicated in connection
with Jasidih P.S. Case No.146 of 2019 dated 27.03.2019 for
offence u/s 21(b), 22(b) and 29 of NDPS Act in which the
petitioner was facing trial in connection with NDPS Case
No.3 of 2019, and the Learned Trial Court has been pleased
to acquit the petitioner, vide order dated 01.08.2022,
passed by learned Additional Sessions Judge-II, Deoghar.
7. Apart from this case i.e. F.I.R. Jasidih P.S. Case No.
146 of 2019 in which the petitioner has been acquitted by
the trial-court dated 01.08.2022 (Annexure-3), no similar
nature case has been registered against the petitioner and
the Respondents lodged some Sanhas against the
petitioner, which are as follows:-
(i) On the basis of secret information, police made
station diary entry bearing Jasidih P.S. Sanha No-
05/2024 dated 08.03.2024 has been lodged by
A.S.I. Amanuel Kujur, against the petitioner and
others for purchasing and selling of brown Sugar.
(ii) On the basis of secret information, police made
station diary entry bearing Jasidih PS Sanha No-
05/2024 dated 09.03.2024 has been lodged by
A.S.I. Laxman Turi, Jasidih Police Station, against
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the petitioner and others for purchasing and selling
of brown Sugar.
(iii) Again on the basis of secret information, police
made station diary entry bearing Jasidih P.S. Sanha
No-35/2024 dated 10.03.2024 has been lodged by
A.S.I. Rambachan Singh, Jasidih Police Station
against the petitioner and others for purchasing and
selling of brown Sugar.
8. It is the further case of the petitioner that the
respondent no.4 S.P, Deoghar issued direction upon the
Respondent No. 5, directing him to serve a copy of arrest-
notice to the wife of petitioner in his house on 13.09.2024
in Reference No. 18/PITNDPS- 25/2024-3616, passed by
Principal Secretary, Government Jharkhand, Home, Jail &
Disaster Department, Ranchi respondent no.2 vide order
dated 13.06.2024 and sent on 15.06.2024 to respondent
no. 3, 4 and 5 and which was received on 06.07.2024 and
arrest notice served to the petitioner after lapse of about
two(02) months on 13.09.2024 in which due process of law
has not been followed.
W.P.(Cr.) No.1001 of 2024 (DB)
9. It is the case of the petitioner in W.P.(Cr.) No.1001
of 2024 (DB) that the order of detention dated 19.04.2024
passed in Reference No. 18/PIT NDPS- 10/2024-2402, by
respondent no.2, shows that the Detaining Authority has
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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 further that with a view to prevent the petitioner
from committing any of the acts within the 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.
10. It is the further case of the petitioner that in the
impugned order dated 19.04.2024 the Detaining Authority
has further observed that Sonu Mahtha @ Banti Mahtha is
illegally trafficking of narcotic drugs inside the Deoghar
Town and he did not stop his illegal activities of narcotics
drugs and psychotropic substances even after his arrest in
previous cases, i.e., –
(i) Deoghar Town PS Case No.695/2023 dated
14.12.2023 was registered under section 21(A) of
NDPS Act, and petitioner has been allowed bail by the
Learned Special Judge, Deoghar in M.C.A. No. 1944 of
2023 vide an order dated 06.01.2024.
(ii) That after giving detention-notice dated 19.04.2024 an
F.I.R. has been lodged on against the one Rajiv Kumar
Sony, Subham Singh, Bodo Khan and the petitioner
(Banti Mahtha), Rohit Mahtha in connection with
Deoghar Town P.S. Case No.252 of 2024 dated
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22.04.2024 for offence u/s 21(a) /20(B)IIA of N.D.P.S.
Act, which is pending before the Learned Special
Court, Deoghar, in this case the name of the petitioner
transpired on the basis of confessional statement of
co-accused Rajiv Kumar Sony.
11. Apart from the past 01 First Information Reports
(FIR) the detaining authority has further observed-
(i) That on the basis of secret information, police lodged
an F.I.R. of Deoghar Town PS Case No.695/2023
dated 14.12.2023 was registered under section 21(A)
of NDPS Act, and petitioner has been allowed bail by
the Learned Special Judge, Deoghar in M.C.A. No.
1944 of 2023 vide an order dated 06.01.2024.
(ii) That on the basis of secret information, police made
station diary entry bearing Deoghar Town Police
Station Sanha No-27/2024 dated 29.02.2024 has
been lodged against Sonu @ Banti for selling of brown
Sugar.
12. 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 and the petitioner herein was ordered to be released
on bail in Deoghar Town P.S. Case No.695/2023 despite
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the rigours of Section 37 of the NDPS Act, 1985, and then
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.
13. Further, the State never thought to even challenge
the bail orders passed by the special court releasing the
appellant on bail and this fact was concealed by the
Respondent No-03 and 04.
14. The respondent no.6 served a copy to the petitioner
in Central Jail, Deoghar on 20.09.2024 in Reference No.
18/PITNDPS- 10/2024 2402, passed by the Principal
Secretary, Government Jharkhand, Home, Jail & Disaster
Department, Ranchi respondent no.2 vide order dated
19.04.2024.
15. It is evident from the factual aspect that the writ
petitioners of W.P.(Cr.) No.933 of 2024 and W.P.(Cr.)
No.1001 of 2024 were detained by virtue of order dated
13.06.2024 and 19.04.2024 respectively and subsequently
the same was extended confining the writ petitioner in
detention for a period of one year.
16. The said decision of the State has been challenged
by filing the instant writ petitions.
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Submission of the learned counsel appearing for the
petitioners:
17. Learned counsel appearing for the petitioners has
taken the following grounds in assailing the impugned
decision :-
(i) The writ petitioners have 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 petitioners
were made accused in connection with the cases of
illicit trafficking of narcotic drugs and psychotropic
substances. In the detention order dated 13.06.2024,
of the petitioner Sikandar Mahtha, there is reference
of to Jasidih P.S. Case no. 146/2019 dated
27.03.2019, in which petitioner Sikandar Mahtha was
acquitted in NDPCS case no. 3/2019. In the case of
the petitioner Banti Mahtha @ Sonu Mahtha because
of recovery of minor quantity of narcotics, he has been
directed to be released on bail by the order passed by
the learned Special Judge, Deoghar. Thereafter,
sanhas although have been made and based upon
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passing the order of detention in exercise of power
conferred under Section 2e (iii) 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 petitioners.
(iv) It has further been contended that the writ petitioners
have 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,
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 writ petitioners of W.P.(Cr.)
No.933 of 2024 and W.P.(Cr.) No.1001 of 2024
although have been ordered to be detained vide order
dated 13.06.2024 and 19.04.2024 respectively but
they have been taken into custody only on 25.12.2024
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and 24.10.2024 respectively, i.e., after lapse of about
more than 6 months. Hence, the slackness which has
been shown by the authority in putting the writ
petitioners behind confinement appears to be not
available, otherwise, the writ petitioners 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.
18. Learned counsel for the petitioners has relied on
judgment rendered by the Apex Court delivered in case of
Rekha Vs. State of Tamil Nadu through Secretary to
Government and Another reported in (2011) 5 SCC 244;
Sushanta Kumar Banilk Vs. State of Tripura and
Others reported in 2022 SCC Online SC 1333 and
Mortuza Hussain Choudhary Vs. State of Nagaland
and Others reported in 2025 SCC Online SC 502.
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19. 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
20. Per contra, Mr. Ashwini Bhushan, learned A.C. to
Sr. SC-II and 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 writ petitioners
have been found to be habitual in trafficking of the
narcotics which would be evident from the institution of
First Information Reports and Sanhas.
21. It has been contended that so far the argument
which has been advanced on behalf of the petitioners that
due to the non-arrest of the petitioners for a period of about
six months, the order of detention should not have been
passed and not arresting the writ petitioners in execution of
the order of detention itself suggest that there was no need
of passing of order of detention is concerned, the petitioners
cannot be allowed to take advantage of the same since
petitioners themself were absconding. Hence, it is incorrect
on the part of the petitioners to say that the order of
detention is not for the useful purpose.
22. Learned counsel has submitted that it is also
incorrect on the part of the writ petitioners to take the
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ground that there is no subjective satisfaction, rather, each
and 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 writ petitioners in detention, it cannot be said
that there is no subjective satisfaction.
23. 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
24. We have heard learned counsel for the parties and
gone through the order of detention as also the pleadings
made on behalf of the petitioners and the State as available
in the writ petitions and the counter affidavits.
25. 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
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not been placed by the District Authority along with
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?
26. 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.
27. 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
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of drugs. Although a number of legislative, administrative
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.
28. 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 the16
2025:JHHC:22678-DBpurposes of this section by that Government, may, 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.
(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
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remaining ground or grounds and made the order of
detention;
(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.
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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,-
(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
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reference to the Advisory Board and the proceedings of
the Advisory Board and its report, excepting that part
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.”
29. 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
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person 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.
30. 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-
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(1) financing, directly or indirectly, any of the
aforementioned activities:
(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:
31. 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.
32. 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
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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.
33. 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
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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.
34. 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.
35. 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.
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36. The Hon’ble Apex Court has also taken into
consideration the issue of detention and agreeing with the
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.
37. 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.
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
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judgment rendered by Hon’ble Apex Court in the case of
Mortuza Hussain Choudhary Vs. State of 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.”
38. Adverting to the factual aspect of the present case,
it is the admitted case that the order of detention was
passed on 13.06.2024 in respect of petitioner Sikandar
Mahtha and on 19.04.2024 in respect of petitioner Banti
Mahtha @ Sonu Mahtha.
39. We have perused the aforesaid detention orders of
both the petitioners. The detention order of the petitioner
Sikandar Mahtha was issued by Respendent no.2 on
13.06.2024 and he was detained on 25.12.2024.
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40. Further, detention order of the petitioner Banti
Mahtha @ Sonu Mahtha, was issued on 19.04.2024 and he
was detained on 24.10.2024. Subsequent thereto, i.e., after
passing of the order of detention, petitioners were not
immediately taken into custody in execution of order of
confinement. Rather, they were taken into custody after
lapse of a period of more than six months. Thus, petitioners
were allowed to remain outside the purview of confinement
order for a period more than six months approximately.
41. Thus, in this pretext, submission has been made on
behalf of the petitioners that if that was the situation by not
arresting the writ petitioners, 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 writ petitioners 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.
42. 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
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without instituting an F.I.R. taking into consideration the
nature of offence which is said to be crime against society.
43. 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 both the
petitioners. We find that in detention order dated
13.06.2024 pertaining to petitioner Sikandar Mahtha, there
is reference to Jasidih P.S. Case no. 146/2019 dated
27.03.2019. But, the petitioner has annexed the copy of
Judgment dated 01.08.2022(Annexure-3) passed in NDPS
case no. 3/2019 and on perusal, we find that NDPS case
no. 3/2019 arose out of aforesaid Jasidih P.S. Case no.
146/2019 dated 27.03.2019 and the petitioner was one of
the accused. Petitioner faced trial for the charges under
sections 21(b),22(b) and 29 of Narcotics Drugs and
Psychotropic Substance Act,1985 and was acquitted of the
charges by the learned trial court by order dated
01.08.2022, but, the said order of acquittal was not placed
before the Sanctioning Authority. Further, in detention
order dated 19.04.2024, of the petitioner Banti Mahtha @
Sonu Mahtha, there is reference to Deoghar (Town) P.S.
Case no. 695/2023 dated 14.12.2023 under section 21 of
the NDPS Act. But, as the seized material was within the
purview of small quantity, petitioner Banti Mahtha @ Sonu
Mahtha, was released on bail by the learned Special Judge
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in Mis. Criminal Application No. 1944/2023 on
06.01.2024(Annrxure-2). But, the said order granting bail
by the learned court has not been placed before the
authority wherein the reference of the quantity has been
said to be not commercial in nature, which is a case where
even the parameter stipulated under Section 37 of the
NDPS Act is not applicable being the seizure of the
narcotics minimum in quantity.
44. 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.”
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
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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.”
45. 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.
46. 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
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.
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47. The F.I.R. and Sanha is the basis of passing the
order of detention but very surprisingly the order granting
bail in connection with Deoghar (Town) P.S. Case No.695 of
2023 to the petitioner Banti Mahtha @ Sonu Mahtha and
the order of acquittal passed by learned Additional Sessions
Judge-II, Deoghar in N D P S Case No.03 of 2019 to the
petitioner Sikandar Mahtha have not been placed before
the Sanctioning Authority.
48. The sanctioning authority would have applied its
mind if the order granting bail to the petitioner Banti
Mahtha @ Sonu Mahtha, and the order of acquittal of
petitioner Sikandar Mahtha would have been placed by the
authority who has proposed the order of detention.
49. 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 six months
which also clarifies that the conduct of the authority who
has proposed detention, said to be very casual.
50. 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
petitioners themselves since they were absconding. Even
accepting the same, even then the procedure has been laid
down under Section 8 of the Act, 1988 that what to be done
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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.
51. 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.
52. This Court, therefore, is of the view that the orders
of detention need interference.
53. Accordingly, the order dated 13.06.2024 passed in
Reference No.18/PIT NDPS-25/2024-3616 and the
subsequent order dated 24.02.2025 passed by the Principal
Secretary, Home, Jail & Disaster Management Department,
Government of Jharkhand, Ranchi, subject matter of
W.P.(Cr.) No.933 of 2024(DB) as also the order dated
19.04.2024 passed in Reference No.18/PIT NDPS-10/2024-
2402 and subsequent order dated 24.12.2024 passed by
the Principal Secretary, Home, Jail & Disaster Management
Department, Government of Jharkhand, Ranchi, subject
matter of W.P.(Cr.) No.1001 of 2024 (DB), are hereby
quashed and set aside.
54. The writ petitions stand allowed.
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55. Consequently, the petitioners, abovenamed, are
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/
33