Point of Law: While passing order of detention what was considered by detaining authority as basis of order was three pending cases wherein detenu has already been enlarged on bail, a fact which was totally ignored.

JUDGMENT

R.M.Chhaya, J.

By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the order of detention dated 18.04.2022 passed by the Commissioner & Secretary to the Govt. of Assam, Home & Political Department, Dispur, Guwahati under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as ‘the Act’, for the sake of brevity) and has prayed that the respondent authorities be directed to release the detenu, who happens to be the husband of the petitioner, without any further delay.

2. The following facts emerge from the records:

The present petition is filed for a writ of habeas corpus by the wife of the detenu who has been detained in jail vide order dated 18.04.2022 passed by the Commissioner & Secretary to the Government of Assam, Home & Political Department (Respondent No.2) under Section 3(1) of the Act. The record indicates that the order of detention of the husband of the petitioner is based on his involvement in three cases which are as under:-

(i) Gorchuk P.S. Case No. 76/2018 under Section 379/411 of the Indian Penal Code read with Section 21(b)/29 of the NDPS Act, 1985.

(ii) Bharalumukh P.S. Case No. 315/2020 under Section 22(b) of the NDPS Act, 1985.

(iii) Panbazar P.S. Case No. 279/2021 under Section 22(b)/29 of the NDPS Act, 1985.

3. It is the case of the detaining authority that the detenu is lodged in Central Jail, Guwahati and it is likely that he may be released very soon and therefore, it was considered essential to detain him under the Act. The order of detention was served upon the detenu on 20.04.2022. The record indicates that the petitioner herein filed a representation on behalf of the detenu i.e. her husband on 07.05.2022 addressed to the Commissioner & Secretary to the Government of Assam, Home & Political Department, Dispur, Guwahati, and a copy thereof was marked to the Advisory Board, PITNDPS Act and the Deputy Secretary (PITNDPS), Ministry of Finance, Department of Revenue, New Delhi. It also appears that prior to filing of the representation dated 07.05.2022 by the petitioner, the detenu had also filed a representation on 02.05.2022 to the Commissioner & Secretary to the Government of Assam, Home & Political Department, Dispur, Guwahati. Both the representations came to be rejected vide order dated 20.06.2022.

4. The petitioner as the wife of the detenu has preferred this petition on various grounds, more particularly, it is contended that the impugned order of detention is based on total non-application of mind on the part of the detaining authority and is violative of Articles 21 and 22 of the Constitution of India. It is also averred in the petition that even though in all the three cases which are referred to in the order of detention dated 18.04.2022 the detenu has been enlarged on bail by the competent Courts including this Court, the same has not been considered and, on the contrary, involvement of the detenu in those three cases is made the very basis of passing the impugned detention order. It is also contended that the representation filed by the petitioner and the detenu have been considered after much delay, which is violative of the Articles 21 and 22 of the Constitution of India. On such grounds, it is submitted by the petitioner that the order of detention deserves to be quashed and set aside.

5. The respondent authorities through the respondent Nos. 1 and 2 have filed an affidavit-in-opposition and have denied the contentions raised by the petitioner in the petition. The respondent authorities have relied upon the order dated 20.06.2022 whereby the representations filed by the detenu and the petitioner came to be rejected. The respondents have also relied upon the parawise comments submitted by the Deputy Commissioner of Police (Crime), Guwahati on the representation filed by the petitioner and the FIR in Azara P.S. Case No. 4/2022 registered u/s 224/353/325/511 IPC. Th