The detention order was unsustainable due to non-application of mind, unexplained delay in disposing of the representation, and failure to furnish necessary documents to the detenu.

JUDGMENT :

SUMAN SHYAM, J.

1. By filing this writ petition, the son of the detenu has approached this court assailing the order of detention dated 20/07/2020 issued under section 3(1) the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act) by the Secretary to the Government of Assam, Home & Political Department, detaining him under the provisions of the PITNDPS Act until further order.

2. The undisputed facts of the case, as emerging from the materials on record, are that the detenu viz Sri. Pradip Talukdar was arrested on 29.05.2020 in connection with CID P.S. Case No. 10/2020 registered under Sections 22(C)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) on charges of committing offences under the Act of 1985. Pursuant to his arrest, the learned District & Sessions Judge, Kamrup(M) had remanded the detenu to five days Police Custody. Thereafter, the detenu was remanded to judicial custody whereby, he was lodged in the Central Jail at Guwahati. While he was in the judicial custody, the Order of Detention dated 20/07/202 was issued, which was followed by the Grounds of Detention dated 22/07/2020. The Detention Order dated 20/07/2020 as well as the Grounds of Detention dated 22/07/2020 were served upon the detenu only on 04/08/2020 through the Superintendent of the Central Jail, Guwahati after a delay of 14 days. On 12/08/2020, the detenu had submitted his representation before the State Government of Assam as well as the Central Government praying for revoking the Detention Order. By the order dated 16/10/2020, the Secretary to the Government of Assam, Home and Political Department, i.e. the detaining authority, had rejected the representation submitted by the detenu. The representation submitted by the detenu was also rejected by the Central Government vide memorandum dated 04/12/2020. Meanwhile, the State Government had constituted an Advisory Board in exercise of powers conferred under section 9(a) of the PITNDPS, Act and referred the matter to the Board on 25/08/2020. The Advisory Board had submitted its report dated 30/09/2020, approving the order of detention, based on which, the Government of Assam had confirmed the detention of the detenu for a period of one year.

3. The order of detention dated 20/07/2020 has been put under challenge on several grounds. According to Mr. B.K. Mahajan, learned counsel for the writ petitioner, the order of detention has been issued in a most mechanical manner, without proper application of mind to the relevant facts in as much as the detaining authority had failed to take note of the fact that the detenu was already in jail and his anticipatory bail application had been dismissed by the High Court. Under such circumstances, mere pendency of the bail application could not have been a valid ground for issuing the detention order without recording satisfaction as regards any likelihood of his being released on bail.

4. The learned counsel for the petitioner further submits that the grounds of detention was issued on 22.07.2020 i.e. after the order of detention was issued and therefore, the same was evidently post-dated. Mr. Mahajan submits that in the Grounds of Detention, there is no mention of the Police Report, based on which, the detention order was issued. Mr. Mahajan further submits that the police report relied upon by the detaining authority was not furnished to the detenu so as to enable him to make an effective representation.

5. Referring to the delay of 65 days in disposal of the representation by the Government of Assam and the delay of 144 days in disposal of his representation by the Central Government, Mr. Mahajan submits that the order of detention is liable to be set aside only on the ground of such un-explained delay. In support of his aforesaid argument, Mr. Mahajan has relied upon the following decisions:-

1. (2001) 1 SCC 341 [Amritlal v. Union Govt., Through Secy., Ministry of Finance].

2. 2007 AIR SCW 6974