HIGH COURT OF TRIPURA

AGARTALA

WP(C)(HC) No. 04 of 2021

Shri. Bishu Kumar Tripura

Son of Shri Malindra Tripura, resident of Lalmaibari, Padmalochan High  School, PS-Melagharh, District-Sepahijala, Tripura.

 —– Petitioner(s)  Versus

1. The State of Tripura,

represented by the Secretary to the Government of Tripura, Home  Department, having his office at Secretariat Complex, PO Kunjaban, PS  New Capital Complex, Sub-Division-Agartala, District West Tripura. 2. The Secretary,

Government of Tripura, Home Department, having his office at  Secretariat Complex, PO Kunjaban, PS New Capital Complex, Sub Division-Agartala, District West Tripura. 3. The Deputy Secretary,

Government of Tripura, Home Department, having his office at  Secretariat Complex, PO Kunjaban, PS New Capital Complex, Sub Division-Agartala, District West Tripura.

4. The Director General of Police,

Tripura, Police Headquarters, Fire Brigade Chowmohani, PS-West  Agartala, PO & Sub-Division-Agartala, District West Tripura.

5. The Advisory Board,

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances  Act, 1988, Tripura, represented by its Secretary.

6. The Union of India,

represented by the Secretary to the Ministry of Home Affairs, Government  of India, South Block, New Delhi-110001

 —– Respondent(s) 

For Petitioner(s) : Mr. Sankar Lodh, Adv.

For Respondent(s) : Mr. S.S. Dey, Advocate General. Mr. Bidyut Majumder, Asstt. SG.

Mr. Ratan Datta, P.P.

Mr. S. Debnath, Addl. P.P.

Ms. A. Chakraborty, Adv.

Date of Hearing : 8thFebruary, 2022.

Date of Pronouncement : 16th March, 2022.

Whether fit for reporting : YES

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 B_E_F_O_R_E_

 HON’BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY HON’BLE MR. JUSTICE S.G. CHATTOPADHYAY 

JUDGMENT & ORDER

[Per S.G. Chattopadhyay], J

The petitioner, hereinafter referred to as the detenu, has  been detained pursuant to order No.F.15(9)-PD/2021(P-II)/2330 dated  20.08.2021 (Annexure-1 to this petition) issued by the Home Secretary to  the Government of Tripura in exercise of powers conferred under sub  section (1) of section 3 of Prevention of Illicit Traffic in Narcotic Drugs and  Psychotropic Substances, 1988 (for short „PITNDPS‟ Act).

[2] The grounds of detention as disclosed in the impugned order  dated 20.08.2021 are as under:

[1]. From the records submitted by the Director General of Police,  Tripura, it has appeared that Shri Bishu Kumar Tripura S/O Shri  Malindra Tripura of Lalmaibari, Near Padmalochan High School,  PS-Melagarh, Sepahijala District was involved in the following  cases:

(i) Melagarh PS case No. 2020MLG028 dated 19.06.2020 under  sections 148/149/353/325/427/307, IPC and section 3 of  Prevention of Damage to Public Property Act and sections  20(b)(ii)(C)/29, NDPS Act.

(ii) Manu PS case No.2021MNU004 dated 30.01.2021 under  sections 20(C)/29(i) of NDPS Act and, it has appeared that he is  still operating through the help of his associates and supporters  in transportation of NDPS articles.

[2]. The records have also disclosed that he is a repeated offender  and is continuously doing illegal activities regarding  transportation of NDPS articles. This is very dangerous for the  society at large where several youths are heading towards drug  addiction, which further decreases the national productivity in  all walks of life. Despite arrest in different cases said Shri Bishu  Kumar Tripura S/O Shri Malindra Tripura of Lalmaibari, Near  Padmalochan High School, PS-Melagarh, Sepahijala District did

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not mend his ways and is continuously spoiling the future  generation.

[3]. The person is still active in illicit trafficking of NDPS articles as  revealed from field information but could not be arrested red handed again and issue of detention order under PITNDPS will  also help Police in initiating financial investigation laid down  under Chapter-V(A) of NDPS Act.

[4]. It is essential to keep Shri Bishu Kumar Tripura behind the bars  in the national interest since this drug addiction not only spoil  the individual drug addict but also spoils the career of youths.  Under the influence of drugs, youths are easily motivated

toward social crimes which may further lead to communal  violence, hatred among communities and even international  tensions, since Tripura is having Indo-Bangladesh border. This  drug addiction encourages youths to commit crimes like  snatching, theft of bike, burglary, dacoit etc. when they need  money to fulfill their urge for drug.

[5]. From the statement of witnesses and from the records, it has  transpired that Shri Bishu Kumar Tripura has accumulated huge  property at Bishramganj and Melagarh which appears to be  disproportionate to his known source of income.

[6]. The Director General of Police, Tripura has proposed to prevent  Shri Bishu Kumar Tripura S/O Shri Malindra Tripura of  Lalmaibari, Near Padmalochan High School, PS-Melagarh,  Sepahijala District from continuing his harmful and prejudicial  activities by engaging himself in illicit traffic of narcotic drugs  and psychotropic substances in the interest of society.

[3] The detenu was made aware of the grounds of detention  and copies of the documents relied on by the detaining authority along with  the detention order was duly served on the detenu. He made a  representation dated 28.08.2021 [Annexure-9 to the writ petition] to the  detaining authority. The said representation was rejected by the State  Government and the rejection order dated 18.09.2021 was communicated  to the detenu by the Home Secretary to the Government of Tripura  [Annexure-10 to the writ petition]. Thereafter, the State Government vide. No.15(9)-PD/2021(P-II)/2627 dated 14.09.2021 made a reference in

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respect of the matter to the State Advisory Board in terms of section 9(b) of  the PITNDPS Act. The Advisory Board opined that there were sufficient  causes for the detention of the petitioner. Pursuant to report dated  06.11.2021 of the State Advisory Board, the State Government in exercise  of power conferred under section 9(f) read with section 11 of the PITNDPS  Act confirmed the detention order for a period of 1(one) year w.e.f. the  date of his detention by order No.F.15(9)-PD/2021(P-II)/3283 dated  11.11.2021 (Annexure-12 to the writ petition) issued by the Home  Secretary.

[4] The detenu has structured his challenges to the detention  order mainly on the following grounds:

(i) The orders whereunder the detenu was granted bail in  Melagarh PS case No.2020/MLG/028 and Manu PS case No.2021 MNU  004 prior to the issuance of the detention order were not placed before  the detaining authority.

(ii) Non placement of these vital documents before the detaining  authority and non consideration of the same by the detaining authority has  vitiated the detention order because those were necessary to arrive at a  subjective satisfaction as contemplated under sub section (1) of section 3 of  PITNDPS Act for issuing detention order.

[5] In the counter affidavit filed on behalf of State respondents 1, 2, 3 and 4 by the Deputy Secretary, Home, Government of Tripura on  20.12.2021, it has been asserted that the detenu is a drug peddler against

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whom several cases have been registered. It is stated that the investigating  agency has already laid charge sheet against him in Melagarh PS case  No.2020/MLG/028 and Manu PS case No.2021 MNU 004. In the third case  lodged as Bishalgarh PS case No.2021 BLG 059 under sections 20(b)(ii)(C)  and sections 25, 27A, 29 and 32, NDPS Act, he has been granted pre arrest  bail by the High Court on 20.08.2021 and the State Government has  decided to challenge the order in SLP before the Hon‟ble Supreme Court.  Further averment made on behalf of the State respondents is that  invocation action of the provisions of PITNDPS Act against the detenu was  felt necessary to deter him from repeating commission of offences under  the NDPS Act. It has also been asserted by the State respondents that there is no merit in the petition because all procedural safeguards prescribed  under the law has been followed by the detaining authority by affording  earliest opportunity to the detenu for making an effective representation  against the detention order and the matter was also referred to the advisory  board within the timeframe prescribed under the law and pursuant to the  report of the State advisory board the detention order was confirmed by the  State Government.

[6] A Separate counter affidavit was filed on behalf of Union of  India (respondent No.6) by B.S. Meena, Under Secretary to the Government  of India in the Department of Revenue, Ministry of Finance contending that  the State Government forwarded the detention order to the Central  Government in terms of sub section (2) of section 3 of PITNDPS Act within

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the time stipulated under said sub section (2). It was received by the  Ministry of Home Affairs of the Government of India on 26.08.2021 which, in turn was forwarded to the Department of Revenue, Ministry of Finance. It  was asserted in the counter affidavit filed by respondent No.6 that there  were no breach of safeguards provided to the detenu under Article 22 of  the Constitution.

[7] Notice was also served on State Advisory Board (respondent  No.5) but no counter affidavit was filed on behalf of the said respondent. [8] We have heard Mr. Sankar Lodh, learned advocate for the  petitioner and Mr. S.S. Dey, learned Advocate General appearing for the  State along with Mr. R. Datta, learned P.P, Mr. S. Debnath, learned Addl.  P.P and Ms. A. Chakraborty, advocate.

[9] Mr. Lodh, counsel appearing for the petitioner has argued  that the detention order passed by the detaining authority is liable to be  quashed mainly because bail orders whereunder detenu was released on  bail in Melagarh PS case No.2020/MLG/028 and Manu PS case No.2021  MNU 004 were not placed before the detaining authority and non  consideration of the bail orders vitiated the subjective satisfaction of the  detaining authority. To buttress his arguments, Mr. Lodh, learned counsel  has relied on the decision of the Apex Court in Rushikesh Tanaji Bhoite  vs. State of Maharashtra & Ors. reported in (2012) 2 SCC 72 wherein  the Apex Court observed that in a case where the detenu was enjoying his  freedom under the bail order passed by the court, at the time of passing the

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order of detention, such bail order must have to be placed before the  detaining authority to arrive at proper satisfaction about the need of  preventive detention. Counsel has relied on the following observation of the  Apex Court in paragraph 9 and 10 of the judgment:

“9. In a case where the detenu is released on bail and is enjoying 

his freedom under the order of the court at the time of passing 

the order of detention, then such order of bail, in our opinion, 

must be placed before the detaining authority to enable him to 

reach at the proper satisfaction.

10. In the present case, since the order of bail dated 15-8-2010

was neither placed before the detaining authority at the time of 

passing the order of detention nor the detaining authority was 

aware of the order of bail, in our view, the detention order is 

rendered invalid. We cannot attempt to assess in what manner 

and to what extent consideration of the order granting bail to the 

detenu would have effected the satisfaction of the detaining 

authority but suffice it to say that non-placing and non

consideration of the material as vital as the bail order has vitiated 

the subjective decision of the detaining authority.”

[10] Counsel has further argued that preventive detention actually  tantamounts to punishment without trial. Therefore, detaining authority  must record its subjective satisfaction in the detention order as to why  issuance of the preventive order was necessary. Counsel submits that  recourse to preventive detention cannot be taken as a substitute to an  ordinary law and where recourse to criminal proceedings would be sufficient  to deal with the crime committed by the detenu, preventive detention is not  permissible. Counsel has derived support to his contention from the decision  of the Apex Court in the case of Rekha vs. State of Tamil Nadu through  Secretary to Government & Anr. reported in (2011) 5 SCC 244 and  the decision of the Apex Court in Munagala Yadamma vs. State of

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Andhra Pradesh & Ors. reported in (2012) 2 SCC 386. In the case of  Rekha (Supra) the Apex Court observed as under:

“29. Prevention detention is, by nature, repugnant to democratic 

ideas and an anathema to the rule of law. No such law exists in 

the USA and in England (except during war time). Since, however, 

Article 22(3)(b) of the Constitution of India permits preventive 

detention, we cannot hold it illegal but we must confine the power 

of preventive detention within very narrow limits, otherwise we 

will be taking away the great right to liberty guaranteed by Article 

21 of the Constitution of India which was won after long, arduous

and historic struggles. It follows, therefore, that if the ordinary 

law of the land (the Penal Code and other penal statutes) can deal 

with a situation, recourse to a preventive detention law will be 

illegal.

30. Whenever an order under a preventive detention law is 

challenged one of the questions the court must ask in deciding its 

legality is: was the ordinary law of the land sufficient to deal with 

the situation? If the answer is in the affirmative, the detention 

order will be illegal. In the present case, the charge against the 

detenu was of selling expired drugs after changing their labels. 

Surely the relevant provisions in the Penal Code and the Drugs

and Cosmetics Act were sufficient to deal with this situation. 

Hence, in our opinion, for this reason also the detention order in 

question was illegal.”

[11] Mr. Lodh, learned counsel contends that in the case of  Munagala Yadamma (Supra) the ratio decided in the case of Rekha  (Supra) was reiterated and it was held that where the offences complained  of, can be dealt with under the ordinary law of the land, recourse to the  provisions of preventive detention is contrary to the Constitutional  guarantees enshrined in Article 22, 19 and 21 of the Constitution and  sufficient grounds have to be made out by the detaining authorities to  invoke such provisions. Counsel has relied on the following observation of  the Apex Court in paragraph 7, 8 and 9 of the judgment:

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“7. Having considered the submissions made on behalf of the  respective parties, we are unable to accept the submissions made  on behalf of the State in view of the fact that the decision in  Rekha case [(2011) 5 SCC 244], in our view, clearly covers the facts of this case as well. The offences complained of against the  appellant are of a nature which can be dealt with under the  ordinary law of the land. Taking recourse to the provisions of  preventive detention is contrary to the constitutional guarantees enshrined in Articles 19 and 21 of the Constitution and sufficient  grounds have to be made out by the detaining authorities to  invoke such provisions.

8. In fact, recently, in Yumman Ongbi Lembi Leima v.State of  Manipur [(2012) 2 SCC 176] we had occasion to consider the same  issue and the three-Judge Bench had held that the personal liberty  of an individual is the most precious and prized right guaranteed  under the Constitution in Part III thereof. The State has been  granted the power to curb such rights under criminal laws, as also  under the laws of preventive detention, which, therefore, are  required to be exercised with due caution as well as upon a proper  appreciation of the facts as to whether such acts are in any way  prejudicial to the interest and the security of the State and its  citizens, or seek to disturb public law and order, warranting the  issuance of such an order.

9. No doubt, the offences alleged to have been committed by the  appellant are such as to attract punishment under the Andhra  Pradesh Prohibition Act, but that in our view has to be done under  the said laws and taking recourse to preventive detention laws  would not be warranted. Preventive detention involves detaining  of a person without trial in order to prevent him/her from  committing certain types of offences. But such detention cannot  be made a substitute for the ordinary law and absolve the  investigating authorities of their normal functions of investigating  crimes which the detenue may have committed. After all,  preventive detention in most cases is for a year only and cannot  be used as an instrument to keep a person in perpetual custody  without trial. Accordingly, while following the three-Judge Bench  decision in Rekha’s case [(2011) 5 SCC 244] we allow the appeal  and set aside the order passed by the High Court dated 20-7-2011 and also quash the detention order dated 15-2-2011, issued by the  Collector and District Magistrate, Ranga Reddy District, Andhra  Pradesh.”

 [Italics supplied by us]

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[12] Based on the above observations of the Apex Court, counsel  contended that in Melagarh PS case No.2020/MLG/028 as well as Manu PS  case No.2021 MNU 004 the investigating agency has already laid charge  sheets against the detenu and the designated courts can very well take care  of those charges under the ordinary law and therefore, a preventive  detention order is unwarranted. Under the premises aforesaid, counsel has  urged for setting aside the preventive detention order.

[13] In order to repel the submissions made by the counsel of the  petitioner Mr. S.S. Dey, learned Advocate General has contended that the  plea raised by the detenu to challenge the order of his detention and the  points argued by the counsel of the petitioner in support of such plea are  wholly untenable. With regard to the plea raised by the counsel of the  petitioner about the the subjective satisfaction of the detaining authority,  learned Advocate General has contended that the detention order clearly  demonstrates that the detaining authority came to the conclusion about the  dire need of the preventive detention of the petitioner after considering all  the relevant materials. It has been argued by learned Advocate General that  the adequacy of the material on the basis of which the detaining authority  arrived at its satisfaction cannot also be examined in the court of law. Even the reasonableness of the satisfaction of the detaining authority cannot be  questioned. Counsel submits that all relevant facts and documents were  considered by the detaining authority to arrive at a subjective satisfaction  and copies of all those documents were supplied to the detenu. Counsel

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further contends that the detenu was completely aware of the bail orders  passed by court in his favour in Melagarh PS case No.2020/MLG/028 and  Manu PS case No.2021 MNU 004 and therefore, non supply of the copies of  the said orders to him could in no way prejudice the detenu. Moreover, the  detaining authority has clearly indicated in the detention order that facts of  Melagarh PS case No.2020/MLG/028 and Manu PS case No.2021 MNU 004  were examined by the detaining authority for arriving at the subjective  satisfaction about the need of preventive detention of the detenu. As  contended by learned Advocate General, in this factual context, the bail  orders cannot be treated as vital documents and non consideration of such  documents has in no way vitiated the subjective satisfaction of the detaining  authority. Learned Advocate General argues that the Apex Court has held  that application for bail and an order made thereon, are not always  mandatory and such requirement would depend upon facts of each case. To  nourish his contention, counsel has relied on the decision of the Apex Court  in the case of Sunila Jain vs. Union of India & Anr. reported in (2006)  3 SCC 321 wherein the Apex Court has held as under:

“19…………………….The detaining authority will have to satisfy 

himself on the basis of the materials placed on record, as to 

whether the order of preventive detention should be passed 

against the detenu or not. The constitutional mandate can be said  

to be violated, provided : (1) the impairment has been caused to  

the subjective satisfaction to be arrived at by the detaining  

authority; and (2) if relevant facts had not been considered or the  

relevant or vital documents have not been placed before the  

detaining authority.

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20. In the instant case the order of detention has been taken note 

of the fact that the detenu had already been released on bail in 

the following terms:

“You were arrested on 30-1-2003 and released on bail by 

the Hon‟ble Judge, Special Court of Economic Offences, 

Bangalore, upon executing a personal bond for an amount 

of Rs. 10,000/- and security in the form of cash for the like 

sum.”

21. It is also not in dispute that a copy of the order granting bail 

and order of remand has been furnished to the detenu. In this 

view of the matter we are of the opinion that non-furnishing of a 

copy of the application of bail cannot be said to be a ground 

which impaired the subjective satisfaction of the detaining 

authority or the same was a relevant fact which was required to

be taken into consideration by him and the application for bail was 

required to be supplied to the detenu. It is now well settled that  

all the documents placed before the detaining authority are not  

required to be supplied; only relevant and vital documents are  

required to be supplied.

22. As in the fact of this case, we are satisfied that the application 

for bail was not a vital document ,copy whereof was required to  

be supplied to the detenu, in our opinion, the order of detention is 

not vitiated. A Division Bench of this Court in K. Varadharaj v. 

State of T.N. [(2002) 6 SCC 735] upon noticing some of the 

decisions relied upon by Mr. Mani inter alia held:

“6. From the above observations, it is clear that placing of 

the application for bail and the order made thereon are not  

always mandatory and such requirement would depend  

upon the facts of each case.”

 [Italics supplied by us]

[14] It is contended by learned Advocate General that apparently  all documents which were vital and necessary for formation of subjective  satisfaction of the detaining authority were placed before the detaining  authority before making the detention order on the basis of which the  detaining authority arrived at the conclusion that his preventive detention  was necessary in order to prevent him from repeating the commission of  such offence. In the given facts and circumstances of the case, the bail

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orders cannot be treated as vital and material documents to arrive at a  subjective satisfaction inasmuch as such orders did not introduce any  variation in the circumstances which necessitated the preventive detention  of the detenu.

[15] In this background, the most vital question which falls for  our consideration in this case is whether the bail orders might have  influenced the detaining authority in the formation of his subjective  satisfaction and whether non placement and non consideration of the same  would vitiate the order.

[16] We have perused the entire record of the case and  considered the submissions of learned counsel representing the parties. [17] It is not in dispute that Melagarh PS case No.2020/MLG/028  was registered against the detenu on 19.06.2020 for commission of offence  punishable under sections 148,149,353,325,427 and 307 IPC and section 3  of Prevention of Damage to Public Property Act, 1984 as well as section  20(b)(ii)(C) and section 29, NDPS Act in which the detenu was released on  pre arrest bail by an order dated 04.07.2020 of the Special Judge,  Sepahijala Judicial District in BA No.43 of 2020 and the ground of bail  recorded by the learned Special Judge is that the materials which were  placed before the court did not support his involvement in the commission  of the alleged offence. It is not also in dispute that after investigation of the  case, police laid charge sheet against the detenu. It is also an admitted  position that the detenu also got involved in Manu PS case No.2021 MNU

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004 which was registered on 30.01.2021 for commission of offence  punishable under sections 20(b)(ii)(C) and 29 NDPS Act in which he was  arrested by police and after few days of remand he was released on bail by  the Special Judge of Dhalai Judicial District by his order dated 23.03.2021  and in the said case also a supplementary charge sheet dated 21.08.2021  was filed against the detenu. Subsequently, he got involved in another case  which was registered under the Bishalgarh police stations as BLG PS case  No.059 of 2021 for commission of offence punishable under sections  20(b)(ii)(C) and sections 25, 27A, 29 and 32, NDPS Act and he was granted  pre arrest bail by this court on 20.08.2021. On the same day, the impugned  order of detention was issued.

[18] From the facts stated above, it would appear that the detenu  was granted bail in Melagarh PS case No.2020/MLG/028 and Manu PS case  No.2021 MNU 004 prior to the date on which the detention order came to  be issued. In the detention order (Annexure-1 to the writ petition) no  reference has been made to those bail orders. It is, therefore, assumed that  those bail orders were not placed before the detaining authority for his  consideration at the time of passing the detention order. Whether such non  placement and non consideration of the bail orders has affected the  subjective satisfaction of the detaining authority is the issue on which  counsel of the parties have placed arguments and counter arguments.

[19] Sub section (1) of section 3 of the PITNDPS Act postulates  that the Central Government or a State Government or any officer of the

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Central Government not below the rank of Joint Secretary who has been specially empowered by that Government and in case of State Government,  any officer not below the rank of Secretary of that Government specially  empowered by the State Government for this purpose, if satisfied, that with  a view to preventing the person from engaging in illicit traffic in NDPS, his  detention is necessary, may make an order directing detention of such  person. With regard to “satisfaction” contemplated under sub section (1) of  section 3 of the Act, the Apex Court in a catena of decisions has observed  that the satisfaction of the detaining authority to which section 3(1) refers is  his subjective satisfaction.

[20] The argument which learned Advocate General has urged  before us is that in the given fact situation, the bail orders were not vital  documents for formation of the subjective satisfaction of the detaining  authority and as such non consideration of those bail orders has in no way  caused any impairment to the subjective satisfaction of the detaining  authority because all relevant facts and vital documents were considered by  the detaining authority at the time of passing the detention order.

[21] Since, in the detention order there is no reference to the bail  orders, the order ex facie says that those orders were not placed before the  detaining authority and as a result the detaining authority at the time of  passing the detention order was not aware of the fact that the detenu was  granted bail in those cases and no challenge against those orders were  raised by the State in the higher forum. Absence of awareness of such

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essential facts on the part of the detaining authority, in our view, resulted in  non application of mind which obviously affected the subjective satisfaction  of the detaining authority. None can say with certainty that such bail orders,  if placed before the detaining authority and considered by such authority  would not have persuaded him to desist from passing such order of  detention. In the case of M. Ahamedkutty vs. Union of India & Anr.  reported in (1990) 2 SCC 1 the Apex Court held that non consideration of  the bail order amounted to non application of mind. We can profitably quote  the following observation made by the Apex Court in paragraph 25 of the  judgment which is as under:

“25. Non-consideration of the bail order would have, therefore, in  

this case amounted to non-application of mind. In Union of India  

v. Manoharlal Narang, (1987) 2 SCC 241, the Supreme Court‟s 

interim order in pending appeal against High Court‟s quashing of a 

previous order of detention against the same detenu was not 

considered by the detaining authority while making the impugned 

subsequent order against him. By the interim order Supreme Court 

had permitted the detenu to be at large on condition of his 

reporting to the police station daily. It was held that non

consideration of the interim order which constituted a relevant and 

important material was fatal to the subsequent detention order on 

ground of non-application of mind. If the detaining authority 

considered that order one could not state with definiteness which  

way his subjective satisfaction would have reacted and it could  

have persuaded the detaining authority to desist from passing the  

order of detention. If in the instant case the bail order on  

condition of the detenu‟s reporting to the customs authorities was  

not considered the detention order itself would have been  

affected. Therefore, it cannot be held that while passing the  

detention order the bail order was not relied on by the detaining  

authority. In S. Gurdip Singh v. Union of India (1981) 1 SCC 419, 

following Ichhu Devi Choraria v. Union of India (1980) 4 SCC 531

and Shalini Soni v. Union of India (1980) 4 SCC 544 it was 

reiterated that if the documents which formed the basis of the 

order of detention were not served on the detenu along with the 

grounds of detention, in the eye of law there would be no service

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of the grounds of detention and that circumstances would vitiate 

his detention and make it void ab initio.”

 [Italics supplied by us]

[22] In our considered view, the bail orders were the most  pertinent and proximate matters which cannot be discarded as irrelevant  and remote in the given fact situation of the case and as such those orders  should have been placed before the detaining authority for consideration  and arriving at a subjective satisfaction as contemplated under sub section  (1) of section 3 of PITNDPS Act to arrive at a conclusion with regard to the  necessity of the preventive detention of the detenu.

[23] In the case of Rekha (Supra) which has been relied on by  the counsel of the petitioner, the detention order was held to be bad by the  Apex Court as the detaining authority was not made aware of the fact that a  bail application of the detenu was pending on the date when the detention  order was passed. In the case of Rushikesh Tanaji Bhoite (Supra)  which has been relied on by the counsel of the petitioner, the Apex Court  has clearly observed that non placing and non consideration of a material as vital as the bail order vitiates the subjective decision of the detaining  authority. 

[24] Therefore, we are of the view that in the given facts and  circumstances of the case, the orders whereunder the detenu was granted  bail in the cases referred to in the detention order were relevant and vital  documents and non consideration of those documents by the detaining

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authority has resulted in his non application of mind which has vitiated the  detention order passed by him.

[25] For the foregoing reasons, the petition stands allowed and  the impugned detention order dated 20.08.2021 of Bishu Kumar Tripura is  set aside.

[26] The detenu is to be set at liberty at once unless his detention  is required in any other case. 

[27] In terms of the above, the writ petition stands disposed of.  Pending application(s), if any, shall also stand disposed of.

(S.G. CHATTOPADHYAY), J (INDRAJIT MAHANTY), CJ  Rudradeep

WP(C)(HC) No. 04 of 2021

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