Failure to Consider Detenu's Representation & Unexplained Delay Vitiates Preventive Detention Under PIT-NDPS Act: Gauhati High Court - 2025-10-11

Gauhati High Court Quashes Preventive Detention Order Citing Procedural Lapses and Unexplained Delay

Guwahati: The Gauhati High Court has quashed a preventive detention order issued under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances (PIT-NDPS) Act, 1988, citing multiple critical procedural and constitutional violations. A division bench of Justice Kalyan Rai Surana and Justice Manish Choudhury held that an unreasonable delay in passing the detention order, the failure to provide documents in a language understood by the detenu, and the non-consideration of the detenu’s representations rendered the detention illegal and unconstitutional.

The Court ordered the immediate release of the detenu, Md. Selim Faraji, stating that any further detention would be illegal.

Background of the Case

The writ petition was filed by the father of Md. Selim Faraji, challenging a detention order dated January 22, 2025, issued by the Secretary to the Government of Assam, Home & Political Department. The order was passed to prevent Faraji, alleged to be a habitual offender in drug trafficking cases, from engaging in future illicit activities. The detaining authority based its decision on five past criminal cases registered against Faraji, three of which were under the NDPS Act.

Following his detention, Faraji submitted representations on February 13, 2025, to the State Government, the Detaining Authority, the Advisory Board, and the Central Government, seeking the revocation of the order. While the Central Government rejected his plea, the other authorities failed to act on it. Subsequently, the State Government confirmed the detention for one year based on the Advisory Board's opinion.

Arguments from Both Sides

Petitioner's Counsel, Mr. P.R. Sarma, argued that the detention was unlawful on several grounds:

• Violation of Constitutional Rights: The detention order and supporting documents were provided in English, a language Faraji did not understand, violating his right under Article 22(5) of the Constitution to make an effective representation. Merely reading out the order in Assamese was insufficient.
• Non-Consideration of Representation: The Detaining Authority and the State Government failed to consider and dispose of the representations submitted by Faraji, which is a mandatory procedural safeguard.
• Lack of Proximity: There was an unreasonable and unexplained delay between Faraji's last alleged criminal activity (December 2023) and the passing of the detention order (January 2025), snapping the "live and proximate link" necessary for preventive detention.

The State Counsel, Mr. D. Nath, defended the detention order, asserting that:

• Faraji was a habitual offender, and his detention was necessary to prevent future drug trafficking.
• All procedural safeguards were followed, and the contents of the detention order were explained to him in Assamese.
• The detaining authority had arrived at a subjective satisfaction based on the material on record.

Court's Analysis and Key Findings

The High Court meticulously scrutinized the records and found several fatal flaws in the detention process, leading it to quash the order.

1. Unexplained Delay Snapped the 'Live and Proximate Link'

The Court noted a significant delay at two stages: a nine-month gap between the last alleged offence and the detention proposal, and a further four-month delay by the Detaining Authority in passing the order. The judgment emphasized:

"In such backdrop, the passing of the Detention Order is a clear pointer towards sitting over the proposal with laxity resulting in snapping of the live and proximate link between the grounds of detention and the purpose of detention as the delay was unreasonable and remained unexplained. It has, thus, thrown considerable doubt on subjective satisfaction stated to have been reached by the Detaining Authority."

2. Failure to Consider Representation is Unconstitutional

The Court found that the representations submitted by the detenu to the Detaining Authority and the State Government were never considered or disposed of. Citing landmark Supreme Court judgments, including Kamleshkumar Ishwardas Patel and Jayanarayan Sukul , the bench held that this was a clear violation of a constitutional obligation.

"The acts of non-consideration of the Representations by these authorities is clearly an unconstitutional act when it is imperative for these authorities to consider and dispose of the Representations. When the liberty of a person is in peril immediate action only safeguards the constitutional rights of the detenu."

3. Right to Receive Documents in an Understood Language

The Court held that providing the detention order and voluminous supporting documents in English to a person not conversant with the language amounted to a denial of the opportunity to make an effective representation. This was a direct violation of Article 22(5) of the Constitution and Section 3(3) of the PIT-NDPS Act.

"To a person who is not conversant with the English language, service of the Order and the grounds of detention in English, with their oral translation or explanation by the police officer serving them does not fulfil the requirements of the law... Communication, in this context, must mean bringing home to the detenue effective knowledge of the facts and circumstances on which the Order of Detention is based."

The Court also observed another procedural infraction: the failure of the State Government to forward a report to the Central Government within ten days of the detention order, as mandated by Section 3(2) of the PIT-NDPS Act.

Final Decision and Implications

Concluding that the detention was illegal, invalid, and unconstitutional due to the infringement of fundamental rights and procedural safeguards, the Court set aside the detention order dated January 22, 2025, and the subsequent confirmation order.

The judgment serves as a powerful reminder that laws of preventive detention, which curtail personal liberty, must be construed strictly, and any deviation from procedural safeguards, however technical, will vitiate the detention. It underscores that the State's obligation to consider a detenu's representation is absolute and cannot be overlooked.