Point of Law: Detention order - Failure of the Department to send a report as mandated under Section 3(2) to the Central Government within 10(ten) days as well as the mandate of Section 9(f) for confirmation of an order under the Act of 1988 will have to effect of rendering the detention of the petitioner to be in complete violation of the mandate of law prescribed.

JUDGMENT :

SOUMITRA SAIKIA, J.

1. This writ petition is filed by the petitioner/Sri. Ali Ahmed Laskar @ Bablu Mulla, assailing the order dated 17.07.2021 issued by the Secretary to the Government of Assam, Home and Political Department, Dispur, Assam whereby the petitioner was directed to be taken into custody by detaining him under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

2. The essential facts necessary for the present proceedings are that the petitioner was implicated in three cases, namely:

(i) Hailakandi P.S. Case No. 509/2020 under Section 21(b) of the NDPS Act, 1985.

(ii) Hailakandi P.S. Case No. 1151/2019 under Section 21(a) of the NDPS Act, 1985.

(iii) Hailakandi P.S. Case No. 120/2017 under Section 21(b) of NDPS Act, 1985.

3. The petitioner claims that by the Judgment dated 28.08.2018 passed by the Special Judge, Hailakandi in Special (NDPS) (T-1) Case No. 02/2017 relating to Hailakandi P.S. Case No. 120/2017 under Section 21(b) of NDPS Act, 1985, the petitioner was acquitted. Insofar as the other two cases are concerned, namely: (i) Hailakandi P.S. Case No. 509/2020 and (ii) Hailakandi P.S. Case No. 1151/2019, the petitioner is on bail. It is submitted that insofar as Hailakandi P.S. Case No. 1151/2019 is concerned, which corresponds to Special (NDPS) Case No. 11/2019, the charge-sheet had been filed and the matter has proceeded to trial. Insofar as the Hailakandi P.S. Case No. 509/2020 under Section 21(b) of NDPS Act, 1985 corresponding to Special (NDPS) Case No. 5/2020, the charge-sheet has not been filed till the date of filing of the writ petition.

4. The petitioner states that on 08.09.2021, he was taken into custody from his residence by the Officer-in-charge of Hailakandi Police Station without furnishing grounds of detention. Subsequently, after about a week, the communication impugned in the present proceedings dated 17.07.2021 has been served upon him.

5. The learned counsel for the petitioner submits that the impugned order dated 17.07.2021 pursuant to which the petitioner has been in preventive detention is totally uncalled for and is not based on correct facts and, therefore, the impugned order is an abuse of the process of law and should therefore be interfered with by this Court. It is submitted that a reference is also made in the impugned order that the petitioner has already been acquitted by the Judgment dated 28.08.2018 passed by the learned Special Judge, Hailakandi in Special (NDPS) (T-1) Case No. 02/2017 which corresponds to Hailakandi P.S. Case No. 120/2017. The learned counsel submits that in a case where the trial Court has acquitted the petitioner, the same cannot be a ground on which the State can consider use of its power for preventive detention of the petitioner. The learned counsel for the petitioner reiterates his submissions that the petitioner is already on bail in Special (NDPS) Case No. 11/2019 which correspondence to Hailakandi P.S. Case No. 1151/2019 under Section 21(a) of the NDPS Act, 1985 wherein the charge-sheet has already been filed although the charges are yet to be framed against the petitioner. Insofar as the third case is concerned, no charge-sheet has been filed till the time of filing of the writ petition. The learned counsel for the petitioner submits that impugned order dated 17.07.2021 is ex-facie illegal inasmuch as the same is violative of the provisions of 1988 Act itself as well as the provisions of Article 22 of the Constitution of India. That apart, the same is in conflict that the law laid down by the Apex Court in a catena of decisions rendered in respect of preventive detention.

6. The learned State counsel has referred to the affidavit-in-opposition filed on behalf of the State and submits that all the mandatory provisions prescribed under the Act has been scrupulously adhered to. Therefore, there is no infraction of any mandatory provisions and therefore, there was no violation of any constitutional rights of the