2025 INSC 321
SUPREME COURT OF INDIA
(HON’BL SANJAY
KUMAR, J. AND HON’BLE AUGUSTINE GEORGE MASIH, JJ.)
MORTUZA HUSSAIN
CHOUDHURY
Petitioner
VERSUS
STATE OF NAGALAND
Respondent
Criminal
Appeal Nos. 4872-4873 OF 2024-Decided on 05-03-2025
Criminal, Preventive Detention
Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, Section 3(1) –
Constitution of India, Article 22(3)(b) - Prevention detention order – Quashed
–
Held that authorities concerned paid mere lip service to the mandatory
requirements and mechanically went through the motions while dealing with the
cases of these two individuals –
The
covering letters dated 14.05.2024 and 17.05.2024 addressed by the Additional
Director General of Police to the Special Secretary, Home Department,
Government of Nagaland, reiterated the factum of both the detenus having been
arrested on 12.04.2024 and their being in judicial custody on that date - He, however,
went on to state that, if granted bail, there was a great chance of both of
them continuing with illicit trafficking of narcotic drugs and psychotropic
substances - There was no basis whatsoever for this ipse dixit statement, as it
is an admitted fact that neither of detenu had applied for bail at the time
the detention orders were passed against them -It was only on 28.11.2024
that they were granted default bail owing to the failure of the prosecution to
do the needful within the prescribed time - Neither of detenu knew English, the language in the
orders of detention and the supporting documents.
They
specifically raised this issue in their individual representations dated
12.06.2024 - However, the authorities claimed that the contents of the orders
and the grounds of detention were explained to them in Nagamese and that the
same would suffice – Held that such oral
communication, even if true, did not amount to adequate communication, in terms
of Article 22(5) of the Constitution.
Proposals
for detention of detenus and the documents relating thereto were quite
voluminous - Expecting these detenus to remember what was orally explained
to them from these compendious documents on 03.06.2024 over a length of time
and to recall the same so as to make effective representations on 12.06.2024
would be practically an impossibility - Detaining authority did not even make
separate grounds of detention but merely acted upon the proposals for detention
forwarded to her by the Additional Director General of Police (Administration).
The
cryptic orders of detention passed by her on 30.05.2024 merely recorded that
she was satisfied, on careful examination of such proposals and other
supporting documents, that sufficient grounds were made out for the detention
of the two detenus - This is not in keeping with the statutory scheme of
Section 3(1) and 6 the Act of 1988 - Such ‘satisfaction’ of the detaining
authority necessarily has to be spelt out after application of mind by way of
separate grounds of detention made by the detaining authority itself and cannot
be by inference from a casual reference to the material placed before such
detaining authority or a bald recital to the effect that the detaining
authority was ‘satisfied on examination of the proposals and supporting
documents’ that the detention of the individuals concerned was necessary –
Held
that High Court erred in the application of settled legal norms while
testing the validity of the impugned detention orders - The common judgement
passed by the High Court dismissing the
two writ petitions liable to be set aside - Detention orders passed by the
Special Secretary, Home Department, Government of Nagaland, confirmed and
continued thereafter by way of extension orders, shall stand quashed - The
detenus shall be set at liberty forthwith, unless their continued incarceration
is warranted in connection with any other case.
(Para
12 to 17)
JUDGMENT
Sanjay Kumar, J. :- Ashraf Hussain
Choudhary and his wife, Adaliu Chawang, were subjected to preventive detention
under Section 3(1) of the Prevention of Illicit Traffic in Narcotic
Drugs and Psychotropic Substances Act, 1988 (for brevity, ‘the Act of 1988’),
vide separate orders dated 30.05.2024 passed by the Special Secretary, Home
Department, Government of Nagaland. Challenge thereto by Mortuza Hussain
Choudhary, the brother of Ashraf Hussain Choudhary, by way of WP (Crl.)
Nos. 10 and 11 of 2024 came to naught when the Gauhati High Court dismissed
both the writ petitions on 29.08.2024. Hence, these appeals.
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.
3.
We may briefly note the admitted facts in the cases on hand: Three individuals,
viz., Nehkhoi Guite (the driver of the vehicle) and two ladies, Hoinu @ Vahboi
and Chinneilhing Haokip @ Neopi, were apprehended by the police on the night of
05.04.2024 in Khuzama village area while travelling in a Mahindra TUV Vehicle.
Upon search of the vehicle, 20 soap cases of Heroin were found concealed in the
gear lever cover. The seized Heroin weighed 239 grams. Thereupon, Suo Motu FIR
No. 005/2024 was registered on 06.04.2024 on the file of the Narcotics PS
under Sections 22(b) and 60 of the Narcotic Drugs and
Psychotropic Substances Act, 1985. Upon interrogation, Chinneilhing Haokip
@ Neopi implicated Adaliu Chawang and stated that she had supplied Heroin
earlier also to Adaliu Chawang and received money. Ashraf Hussain Choudhary and
Adaliu Chawang were arrested at Dimapur on 12.04.2024 and were remanded to
custody.
4.
While so, the Investigating Officer of the case submitted proposals for the
preventive detention of Ashraf Hussain Choudhary and Adaliu Chawang. These
proposals were forwarded to the Special Secretary, Home Department, Government
of Nagaland, by the Additional Director General of Police (Administration),
Nagaland, under letters dated 14.05.2024 and 17.05.2024. Acting thereupon, the
Special Secretary, Home Department, Government of Nagaland, issued separate
orders dated 30.05.2024, in exercise of power under Section 3(1) of
the Act of 1988, directing that Ashraf Hussain Choudhary and Adaliu Chawang be
detained and kept in the District Jail, Dimapur, for an initial period of
3 months. Both the detenus submitted individual representations dated
12.06.2024 seeking revocation of their detention. Therein, both of them
asserted that they had been served copies of the detention orders in a language
they were not familiar with and that no copy of the detention order was served
to them in a language that they understood. They also pointed out that they
were already in custody after their arrest on 12.04.2024 and that there was no
mention in the orders that their detention was required under the Act of 1988
as they were likely to be released on bail. They contended that the detention
orders were passed mechanically and without application of mind, violating
their fundamental rights enshrined in Article 21 of the Constitution.
5.
However, their representations were rejected by the Special Secretary, Home
Department, Government of Nagaland, vide separate orders dated 13.06.2024.
Thereafter, the Chief Secretary, Government of Nagaland, affirmed the
rejection of their representations by way of separate orders dated 18.06.2024.
On 19.06.2024, the representations of the detenus were forwarded to the Joint
Secretary, PITNDPS, Government of India. Upon considering the records and
affording an opportunity of hearing to the detenus, the Advisory Board,
Nagaland, submitted report dated 09.08.2024. Therein, the Board opined that
there was sufficient cause for the detention of Ashraf Hussain Choudhary and
Adaliu Chawang in connection with Narcotics PS Case No. 005/2024. The
Government of India, through its PITNDPS Division, Department of Revenue,
Ministry of Finance, rejected the representations of the detenus under
Memorandum dated 27.08.2024. The Government of Nagaland then issued
confirmation orders dated 02.09.2024, extending the period of detention of both
the detenus till 02.12.2024. Their detention was thereafter extended from
03.12.2024 till 02.03.2025 under order dated 30.11.2024 (pertaining to
Adaliu Chawang) and order dated 02.12.2024 (pertaining to Ashraf Hussain
Choudhary) issued by the Chief Secretary, Government of Nagaland.
6.
Notably, Ashraf Hussain Choudhary and Adaliu Chawang were granted statutory
bail in Narcotics PS Case No. 005/2024 by the learned Special Judge, NDPS,
Kohima, Nagaland, vide order dated 28.11.2024, as the prosecution failed to
file a charge-sheet within the prescribed time. However, they still remain
incarcerated owing to the impugned detention orders.
7.
It would be apposite at this stage to take note of the statutory regime of the
Act of 1988. Section 3(1) thereof empowers the authorized officers,
either of the Central Government or of a State Government, to detain any person
with a view to prevent him/her from engaging in illicit traffic in narcotic
drugs and psychotropic substances. Section 3(2) requires a State
Government that passes such a detention order to forward a report of the
same to the Central Government within ten days. Section 3(3) mandates
communication of the grounds on which the detention order has been made to the
detenu 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. The
sub-section records that this requirement is for the purposes of Article
22(5) of the Constitution, which mandates such communication as soon as
may be. Section 6 of the Act of 1988 provides that the grounds of
detention are severable and an order of detention shall not be deemed to be
invalid or inoperative merely because one or some of the grounds is either
found to be vague, non- existent, irrelevant or not connected with such persons
or is invalid for any other reason. Section 6 specifically records
that where a person has been detained pursuant to an order of detention
under Section 3(1), which has been made on two or more grounds, such order
shall be deemed to have been made separately on each ground. This indicates
that the order of detention must be accompanied by the ‘grounds of detention’
made by the detaining authority itself. Section 11 of the Act of 1988
speaks of the maximum period of detention and states that the same may be extended
up to 2 (two) years from the date of detention.
8.
We may now note precedential law on the subject. In Kamarunnissa vs.
Union of India[(1991) 1 SCC 128], the
detenus were already in judicial custody at the time the orders of preventive
detention were passed against them. This Court affirmed that detention orders
could be validly passed against detenus who were in jail, provided the officers
passing the orders were alive to the factum of the detenus being in custody and
there was material on record to justify the conclusion that they would indulge in similar activities, if set
at liberty. Reference was made to the earlier decision of this Court
in Binod Singh vs. District Magistrate, Dhanbad, Bihar[(1986) 4 SCC 416], wherein it was held that there must be cogent
material before the officer passing the detention order to infer that the
detenu was likely to be released on bail and such an inference must be drawn
from the material on record and must not be the ipse dixit of the officer
passing such order. This Court, therefore, emphasized that before passing the
detention order in respect of a person who is in jail, the concerned authority
must satisfy himself and such satisfaction must be reached on the basis of
cogent material that there is a real possibility of the detenu being released
on bail and, further, if released on bail, the material on record must reveal
that he/she would indulge in prejudicial activity again, if not detained.
9.
On similar lines, in Rekha vs. State of Tamil Nadu[(2011) 5 SCC 244] , a 3-Judge Bench of this Court affirmed
that, where a detention order is passed against a person already in jail, there
should be a real possibility of the release of that person on bail, that is, he
must have moved a bail application which is pending. It was observed that if no
bail application is pending it logically followed that there is no likelihood
of the person in jail being released on bail. The Bench, however, pointed out
that the exception to this Rule would be where a co-accused, whose case stood
on the same footing, was granted bail. The Bench cautioned that details in this
regard have to be recorded, otherwise the statement would be mere ipse dixit
and cannot be relied upon. The law laid down
in Rekha (supra) was reiterated and followed in Huidrom
Konungjao Singh vs. State of Manipur and others[(2012) 7 SCC 181].
10.
Earlier, in Union of India vs. Paul Manickam and another[(2003) 8 SCC 342], this Court observed
that, where detention orders are passed against persons who are already in
jail, the detaining authority should apply its mind and show awareness in the
grounds of detention of the chances of release of such persons on bail. It was
observed that the detaining authority must be reasonably satisfied, on the
basis of cogent material, that there is a likelihood of the detenu’s release
and in view of his/her antecedent activities, which are proximate in point of
time, he/she must be detained in order to prevent him/her from indulging in
such prejudicial activities. It was held that an order of detention would be
valid in such circumstances only if the authority passing the order is aware of
the fact that the detenu is actually in custody; the authority has a reason to
believe, on the basis of reliable material, that there is a real possibility of
the detenu being released on bail; and that, upon such release, he/she
would, in all probability, indulge in prejudicial activities; and it is felt
essential to detain him/her to prevent him/her from so doing. This
principle was again reiterated and applied in Union of India and another
vs. Dimple Happy Dhakad[(2019) 20 SCC
609] .
11.
We may now refer to the Constitution Bench judgment in Harikisan vs. State
of Maharashtra and others[AIR 1962
SC 911] in the context of proper communication of the grounds of detention
to the detenu so as to protect his/her right under Article 22(5) of
the Constitution of making an effective representation against such detention.
In that case, the grounds of detention were in English and the authorities
asserted that the same were explained to the detenu in Hindi, a language known
to the detenu, and that it would amount to satisfactory compliance. This plea
was, however, rejected. The observations
of the Bench in this regard read as under:
“In our opinion, this
was not sufficient compliance in this case with the requirements of the
Constitution, as laid down in clause (5) of Article 22. To
a person, who is not conversant with the English language, service of the Order
and the grounds of detention in English, with their oral translation or
explanation by the police officer serving them does not fulfil the requirements
of the law. As has been explained by this Court in the case of State
of Bombay v. Atma Ram Sridhar Vaidya [1951 SCC 43 : (1951) SCR 167] clause
(5) of Article 22 requires that the grounds of his detention should
be made available to the detenue as soon as may be, and that the earliest
opportunity of making a representation against the Order should also be
afforded to him. In order that the detenue should have that opportunity, it is
not sufficient that he has been physically delivered the means of knowledge
with which to make his representation. In order that the detenue should be in a
position effectively to make his representation against the Order, he should
have knowledge of the grounds of detention, which are in the nature of the
charge against him setting out the kinds of prejudicial acts which the
authorities attribute to him. Communication, in this context, must, therefore,
mean imparting sufficient knowledge of all the grounds on which the Order of
Detention is based. In this case the grounds are several, and are based on
numerous speeches said to have been made by the appellant himself on different
occasions and different dates.
Naturally, therefore,
any oral translation or explanation given by the police officer serving those
on the detenue would not amount to communicating the grounds.
Communication, in this
context, must mean bringing home to the detenue effective knowledge of the
facts and circumstances on which the Order of Detention is based.” The
Constitution Bench went on to affirm that, if the detenu is not conversant with
the English language, in order to satisfy the requirements of the Constitution,
the detenu must be given the grounds in a language which he/she can understand
and in a script which he/she can read, if he/she is a literate person.
12.
Given the settled legal position, as set out supra, we are of the opinion that
the orders of detention passed against Ashraf Hussain Choudhary and Adaliu
Chawang cannot be sustained. The authorities concerned paid mere lip service to
the mandatory requirements and mechanically went through the motions while
dealing with the cases of these two individuals. The proposals submitted by the
Investigating Officer noted the fact that both the detenus were arrested on
12.04.2024 and that they had not been released on bail. Reference was also made
to their involvement in earlier cases. In the case of Adaliu Chawang, the
Investigating Officer stated that she was arrested in Meghalaya in connection
with FIR dated 21.04.2021 but noted that she was not treated as absconding
after being granted bail. In the case of Ashraf Hussain Choudhary, the
Investigating Officer stated that he was earlier arrested in connection with a
case registered by Dimapur East PS in the year 2022, but noted that he was
also not absconding in relation thereto after securing bail.
13.
The Investigating Officer, however, did not state anything about either of the
detenus seeking bail in relation to Narcotics PS Case No. 005/24, after being
arrested on 12.04.2024. The covering letters dated 14.05.2024 and 17.05.2024
addressed by the Additional Director General of Police to the Special
Secretary, Home Department, Government of Nagaland, reiterated the factum of
both the detenus having been arrested on 12.04.2024 and their being in judicial
custody on that date. He, however, went on to state that, if granted bail,
there was a great chance of both of them continuing with illicit trafficking of
narcotic drugs and psychotropic substances. There was no basis whatsoever for
this ipse dixit statement, as it is an admitted fact that neither Ashraf
Hussain Choudhary nor Adaliu Chawang had applied for bail at the time the detention
orders were passed against them. As noted earlier, it was only on 28.11.2024
that they were granted default bail owing to the failure of the prosecution to
do the needful within the prescribed time. Therefore, the edicts of this Court,
referred to supra, would squarely apply as there was no material for the
detaining authority to have formed an opinion that there was a likelihood of
either Ashraf Hussain Choudhary or Adaliu Chawang being released on bail.
14.
Further, it is an admitted fact that neither Ashraf Hussain Choudhary nor
Adaliu Chawang knew English, the language in the orders of detention and the
supporting documents. They specifically raised this issue in their individual
representations dated 12.06.2024. The proposals for their detention also
recorded that the only languages known to Adaliu Chawang were Nagamese,
Manipuri and Hindi, while Ashraf Hussain Choudhary knew Nagamese, Bengali and
Hindi. However, the authorities claimed that the contents of the orders
and the grounds of detention were explained to them in Nagamese and that the
same would suffice. This argument must necessarily fail in the light of the law
enunciated by a Constitution Bench in Harikisan (supra). Such oral
communication, even if true, did not amount to adequate communication, in terms
of Article 22(5) of the Constitution.
15.
We may also note that the proposals for detention of Ashraf Hussain Choudhary
and Adaliu Chawang and the documents relating thereto were quite voluminous.
The proposal letter dated 14.05.2024 for Ashraf Hussain Choudhary's detention
contained not only the proposal of the Investigating Officer but also documents
in Annexures A to T, i.e., 20 documents in all. Similarly, the proposal letter
dated 17.05.2024 for the detention of Adaliu Chawang enclosed not only the
proposal of the Investigating Officer but also documents in Annexures A to H,
i.e., 8 documents in total. Expecting these detenus to remember what was
orally explained to them from these compendious documents on 03.06.2024 over a
length of time and to recall the same so as to make effective representations
on 12.06.2024 would be practically an impossibility.
16.
Lastly, the material placed on record reflects that the detaining authority,
viz., the Special Secretary, Home Department, Government of Nagaland, did not
even make separate grounds of detention but merely acted upon the proposals for
detention forwarded to her by the Additional Director General of Police
(Administration), Nagaland. The cryptic orders of detention passed by her on 30.05.2024
merely recorded that she was satisfied, on careful examination of such
proposals and other supporting documents, that sufficient grounds were made out
for the detention of Ashraf Hussain Choudhary and Adaliu Chawang. This is not
in keeping with the statutory scheme, inasmuch as Section
6 of the Act of 1988 specifically refers to the order of detention
‘being made’ on separate grounds. Further, Section 3(1) also records
that the authorized officer, be it of the Central Government or of a State Government,
must be ‘satisfied’ that the person concerned required to be detained so as to
prevent him/her from engaging in illicit trafficking of narcotic drugs and
psychotropic substances. Such ‘satisfaction’ of the detaining authority
necessarily has to be spelt out after application of mind by way of separate
grounds of detention made by the detaining authority itself and cannot be by
inference from a casual reference to the material placed before such detaining
authority or a bald recital to the effect that the detaining authority was
‘satisfied on examination of the proposals and supporting documents’ that the
detention of the individuals concerned was necessary.
17.
On the aforestated analysis, we hold that the Gauhati High Court erred in
the application of settled legal norms while testing the validity of the
impugned detention orders. The common judgement dated 29.08.2024 passed by the
Gauhati High Court dismissing the two writ petitions is accordingly set aside
and the appeals are allowed.
In
consequence, the detention orders dated 30.05.2024 passed by the Special
Secretary, Home Department, Government of Nagaland, confirmed and continued
thereafter by way of extension orders, shall stand quashed. The detenus, Ashraf
Hussain Choudhary and Adaliu Chawang, shall be set at liberty forthwith, unless
their continued incarceration is warranted in connection with any other case.
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