Point of Law: Non furnishing of documents is not fatal and also to project that likelihood of release on bail may not be a consideration.

JUDGMENT :

Heard Mr. M. K. Das, the learned counsel for the petitioner. Also heard Mr. D. Nath, the learned Senior Government Advocate, Assam and Mr. D. Gogoi, the learned C.G.C representing the Union of India.

2. The facts of the case of the petitioner are as under:-

(i) The petitioner is alleged to have been involved in four (4) Nos. of cases, under different provisions of Narcotic Drugs and Psychotropic Substance Act, 1985 (herein after referred to as the NDPS Act, 1985). The cases are as follows :-

(a) Bharalumukh P.S. Case No. 249/2016 U/S 21(a) of the NDPS Act, 1985.

(b) Basistha P.S. Case No. 1135/2016 U/S 22(a) of the NDPS Act, 1985.

(c) Jalukbari P.S. Case No. 968/2020 U/S 22(a) and 27 of the NDPS Act, 1985 and

(d) Jalukbari P.S. Case No. 601/2021 U/S 22(b) of the NDPS Act, 1985.

(ii) The petitioner was arrested in connection with the Jalukbari P.S. Case No. 601/2021 on 30.05.2021. At that stage, on 09.06.2021, the Commissioner of Police vide memo No. V/ DCP (Crime)/Ghty/ NDPS (Jiten Das)/2021/144 informed the Secretary to the Government of Assam, Home and Political Department that the petitioner is a repeated offender under the NDPS Act, 1985. Thereafter the competent authority i.e. the Secretary to the Government of Assam, Home and Political Department issued the order of detention dated 15.07.2021 under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance (PITNDPS) Act, 1985. The same is challenged in the present proceeding.

(iii) The said detention order dated 15.07.2021 was served upon the petitioner on 18.07.2021

(iv) The petitioner had submitted a representation on 05.08.2021 before the Jail authorities addressing the same to the Secretary to the Government of Assam, Home and Political Department against the order of detention, seeking its revocation and praying for setting aside the same. He also submitted a similar representation to the Deputy Secretary (PITNDPS), Ministry of Finance, Department of Revenue, New Delhi.

(v) Thereafter, the Secretary to the Government of Assam, Home and Political Department vide Memo No. HMA-19/38/2021-VIG-H&P/ecf-168494/258 rejected the prayer of the petitioner for revocation of the detention order as prayed by him vide his representation dated 05.08.2021.

(vi) In the given facts, the petitioner has approached this Court for redressal of his grievances challenging the order of detention as well as the order of rejection of the representation of the petitioner.

3. Submission of the learned counsel for the petitioner

The learned counsel for the petitioner challenges this writ petition on the following grounds:-

(i) There is absolute non application of mind by the detaining authorities while passing the impugned order. The contraband allegedly recovered from the petitioner are of small quantity in three cases and the quantity of the contraband in the fourth case, though more than small quantity but less than commercial quantity. The detaining authority also has failed to apply their mind to the fact that at that time, petitioner was under custody and there was no scope for immediate release of the petitioner on bail as his bail was already rejected by the competent Court. The detaining authority has failed to apply their minds to the provision of Section 37 of the NDPS, Act, 1985.

(ii) There is inordinate and unexplained delay in disposing of the representation of the petitioner. The representation was filed on 05.08.2021 and his representation was rejected vide the impugned rejection order dated 07.10.2021. The unexplained delay in disposal of the representation is having of fatal bearing on the detention. The Central Government has not till disposed of his representation.

(iii) The detaining authority had failed to furnish the relevant documents on the basis of which the order of detention was passed and non furnishing of such documents are fatal to the detention. The detention order reflects that the detention order is based on police report and connec