SUSHANTA KUMAR BANIK versus STATE OF TRIPURA & ORS.

Citation: [2022] 13 S.C.R. 484 · Decided: 30-09-2022 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 13 S.C.R.
SUSHANTA KUMAR BANIK
v.
STATE OF TRIPURA & ORS.
(Criminal Appeal No. 1708 of 2022)
SEPTEMBER 30, 2022
[UDAY UMESH LALIT, CJI, S. RAVINDRA BHAT AND
J. B. PARDIWALA, JJ.]
Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988: s. 3(1) – Power to make orders
detaining certain persons – FIRs against the appellant for the
offences punishable u/ss. 22(b)/22(C)/29 and 21(B) of the NDPS
Act, 1985 for illegal trafficking of the narcotic drugs and that he is
a habitual offender – Detention order by the Government – Writ
petition challenging the legality and validity of the detention order
– Dismissed by the High Court – On appeal, held: There was delay
in passing the order of detention from the date of proposal thereby
snapping the “live and proximate link” between the prejudicial
activities and the purpose of detention and failure on the part of
the detaining authority in explaining such delay in any manner –
Such delay unless satisfactorily explained throws a considerable
doubt on the genuineness of the requisite subjective satisfaction of
the detaining authority in passing the detention order and
consequently render the detention order bad and invalid –
Furthermore, the vital fact that the appellant detenu had been
released on bail despite the rigours of s. 37 of the NDPS Act, was
not brought to the notice and was withheld and the detaining
authority was given to understand that the trial of those criminal
cases was pending – Subjective satisfaction, formation of which is
a condition precedent to passing of a detention order, gets 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 – Thus, the
order of detention is quashed and set aside – Narcotic Drugs and
Psychotropic Substances Act, 1985.
[2022] 13 S.C.R. 484
484
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Allowing the appeal, the Court
HELD: 1.1 The proposal to take steps to preventively
detain the appellant at the end of the Superintendent of Police
addressed to the Superintendent of Police (C/S) West Tripura,
Agartala is dated 28th of June 2021. The proposal in turn
forwarded by the Assistant Inspector General of Police (Crime)
on behalf of the Director General to the Secretary, Home
Department is dated 14.07.2021. The order of detention is dated
12th of November, 2021. There is no explanation worth the name
why it took almost five months for the detaining authority to pass
the order of preventive detention. [Para 12][495-D-E]
1.2 The underlying principle is that if there is unreasonable
delay between the date of the order of detention and actual arrest
of the detenu and in the same manner from the date of the proposal
and passing of the order of detention, such delay unless
satisfactorily explained throws a considerable doubt on the
genuineness of the requisite subjective satisfaction of the
detaining authority in passing the detention order and
consequently render the detention order bad and invalid because
the “live and proximate link” between the grounds of detention
and the purpose of detention is snapped in arresting the detenu.
A question whether the delay is unreasonable and stands
unexplained depends on the facts and circumstances of each case.
[Para 20][498-D-F]
1.3 In the instant case, the circumstances indicate that the
detaining authority after the receipt of the proposal from the
sponsoring authority was indifferent in passing the order of
detention with greater promptitude. The “live and proximate
link” between the grounds of detention and the purpose of
detention stood snapped in arresting the detenu. More importantly
the delay has not been explained in any manner and though this
point of delay was specifically raised and argued before the High
Court as evident from the impugned judgment yet the High Court
has not recorded any finding on the same. [Para 21][498-G-H]
2.1 In both the cases relied upon by the detaining authority
for the purpose of preventively detaining the appellant, the
SUSHANTA KUMAR BANIK v. STATE OF TRIPURA & ORS.
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[2022] 13 S.C.R.
appellant was already ordered to be released on bail by the
concerned Special Court. Indisputably, there is no reference of
this

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