Back
2025 Supreme(Gau) 1578
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
KALYAN RAI SURANA, MANISH CHOUDHURY, JJ.
Fatema Khatun – Appellant
Versus
The State of Assam – Respondent
Writ Petition (Crl.) No. 26 of 2025
Decided On : 05-09-2025
For the Appellant : M.K. Hussain
For the Respondents: D.K. Sharma, K.K. Parasar, K. Kalita
Detention orders must adhere to strict procedural safeguards, including timely consideration of representations and communication in a comprehensible language; failure results in illegality and violation of constitutional rights.
Headnote:(A) Constitution of India - Article 21 and Article 22(4) & (5) - Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - Section 3(1) - Detention Order challenged on grounds of delay and inadequate communication - The court held that the Detention Order was illegal due to undue delay in passing it after the last prejudicial act and failure to communicate the grounds of detention in a language understood by the detenu, violating constitutional rights. (Paras 29, 50, 55)
(B) Detention - Procedural Safeguards - The appropriate authority must consider representations from the detenu independently and expeditiously; delay or inadequacy in consideration invalidates detention. (Paras 49-55)
Facts of the case:
The writ petition was filed by the wife of the detenu against a Detention Order under the PIT-NDPS Act. The detenu was detained based on multiple allegations of drug trafficking, but delays in procedural compliance were highlighted. (Paras 1-24)
Findings of Court:
The court found the detention order unconstitutional and expressed that the detenu's rights under Articles 21 and 22 were violated due to delays and inadequate communication of the grounds for detention. (Paras 54-56)
Issues: Whether the Delay in passing the Detention Order and the method of communicating the grounds to the detenu infringed constitutional rights. (Paras 29, 50)
Ratio Decidendi: The court ruled that significant delay in passing the order and failure to communicate effectively in the detenu's language rendered the order invalid, emphasizing the necessity of adhering to procedural safeguards in preventive detention cases. (Paras 29, 50-55)
Result: Writ Petition allowed; the Detention Order set aside. Detenu ordered to be released forthwith, unless required in connection with another case.
JUDGMENT :
MANISH CHOUDHURY, J.
1. The writ petitioner is the wife of one Md. Ramijul Hoque [hereinafter referred to as ‘the detenu’ for short]. The present writ petition under Article 226 of the Constitution of India is preferred by the petitioner on behalf of the detenu, who is presently in the Central Jail at Nagaon. A Detention Order bearing no. eCF-588123/149 dated 18.02.2025 passed by the Secretary to the Government of Assam, Home & Political Department as the Detaining Authority has been put to challenge. The Detaining Authority has passed the impugned Detention Order in exercise of the powers conferred by sub-section [1] of Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 [‘the PIT-NDPS Act’, for short] whereby and whereupon the detenu has been detained and kept under preventive detention.
2. In the impugned Detention Order dated 18.02.2025, it is stated that the detenu has been detained until further order. Subsequent to issuance of the Detention Order dated 18.02.2025, the detenu was taken into custody on 26.02.2025. The detenu was served with the Detention Order dated 18.02.2025 along with the Grounds of Detention which were prepared vide no. eCF-588123/144 dated 18.02.2025, on 26.02.2025.
3. On being so served with the Detention Order and the Grounds of Detention, both dated 18.02.2025, along with the supporting materials, on 26.02.2025, the detenu preferred a Representation each, on 13.03.2025, through the Superintendent of Central Jail, Nagaon before: [i] the Additional Chief Secretary to the Government of Assam, Home & Political Department; [ii] the Detaining Authority under the PIT-NDPS Act & the Secretary to the Government of Assam, Home & Political Department; [iii] the Advisory Board, PIT-NDPS Act; and [iv] the Government of India in the Ministry of Finance, Department of Revenue.
4. The matter was referred to the Advisory Board on 26.03.2025. During one of the sittings of the Advisory Board, the detenu was produced before the Advisory Board by the Detaining Authority from the Central Jail, Nagaon and the Advisory Board heard the detenu in person. The Advisory Board submitted its Report vide Order no. PITNDPS/1/2025 on 08.05.2025 opining that there were sufficient grounds for detention of the detenu under Section 3 [1] of the PIT-NDPS Act. In the Order dated 08.05.2025, the Advisory Board also mentioned about rejection of the Representation dated 13.03.2025 submitted by the detenu before it.
5. Close on the heels of receipt of the Report dated 08.05.2025 from the Advisory Board, the Detention Order dated 18.02.2025 had been confirmed on the basis of the Report of the Advisory Board for a period of one year from the date of detention, vide an Order no. eCF-588123/213 dated 11.05.2025 in exercise of the power conferred by Section 9 [a] of the PIT-NDPS Act.
6. The Representation submitted before the State Government by the detenu was considered and disposed of by the Additional Chief Secretary to the Government of Assam, Home & Political Department vide an Order no. eCF no. 588123/214 dated 06.06.2025. The Additional Chief Secretary while considering the Representation, took into consideration the opinion given by the Advisory Board in its Report. It also took notice of the fact that on the basis of the Report received from the Advisory Board the Detention Order had been confirmed for a period of one year vide an Order dated 11.05.2025. In the above circumstances, it was opined that there were no justified and valid grounds to revoke the Detention Order dated 18.02.2025 as sought for in the Representation submitted by the detenu. Observing so, the Representation was rejected by the Government of Assam.
7. We have heard Mr. M. Hussain, learned counsel for the petitioner; Mr. D.K. Sarma, learned Additional Senior Government Advocate, Assam for the respondent nos. 1-8 and Mr. K.K. Parasar, learned Central Government Counsel [CGC] with Mr. K. Kalita, learned counsel
