JAHIYA KHAN (MD.) Vs. UNION OF INDIA

JUDGEMENT

(1.) By the present petition under Article 226 of the Constitution, the petitioner has challenged the impugned detention order dtd. 28/12/2022 issued by the Joint Secretary, Government of India, Ministry of Finance, Department of Revenue, New Delhi, under Sec. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PIT-ND&PS Act), 1988 whereby detaining the detenu under preventive detention on the ground of non-application of mind and violation of mandatory provisions of the PIT-ND&PS Act. Heard Mr. Th. Jugindro, learned counsel for the petitioner; Mr. S. Samarjeet, learned Sr. PCCG for respondent Nos. 1 & 2; and Mr. Phungyo Zingkhei, learned Dy. Government Advocate for respondent No. 3.

(2.) Mr. Th. Jugindro, learned counsel for the petitioner, submits that the detenu was arrested earlier on 1/7/2017 in connection with FIR No. 214(7) 2017 PRT-PS u/s 21(b) ND&PS Act on allegation of possession of 150 grams of Heroin No. 4 and charge sheet was filed on 22/9/2022 and he is facing trial in connection with Spl. Trial No. 5 of 2022 in the Court of Special Judge, ND&PS, Manipur at Lamphelpat. He was released on bail in this F.I.R. It is also alleged that on 8/12/2021, officers of NCB, Imphal, recovered 10.39 kg of Methamphetamine Crystal from the possession of two persons at Imphal International Airport while going to Chennai and it was alleged that the contrabands were given by the detenu to these two persons. On the basis of the recommendation of the Sponsoring Agency i.e. NCB, Guwahati, the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue (PITNDPS UNIT) issued detention order dtd. 28/12/2022 for taking into prevention of the detenu under Sec. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PIT-ND&PS Act), 1988 for preventing from engaging in illicit trafficking of narcotic drugs and psychotropic substances. Since the detenu was on bail and was not residing at his given addresses, the detention order could not be served to him and he was taken into custody only on 6/3/2023 from the Lamphel Court Complex when he came to appear for the trial before the Court. The grounds of detention dtd. 28/12/2022 was furnished to him on 8/3/2023. Vide letter dtd. 17/3/2023, the Under Secretary, Government of India, Ministry of Finance, Department of Revenue, PIT-NDPS Division, referred the matter to the Advisory Board, Manipur under Sec. 9(b) of the PIT-NDPS Act, 1988 and vide opinion dtd. 25/4/2023 the Board found sufficient reasons for detaining the detenu. The detenu submitted three separate representations all dtd. 30/3/2023 through the Superintendent, Manipur Central Jail, Sajiwa to (i) the Joint Secretary (PIT NDPS), Government of India; (ii) the Secretary, Government of India, Department of Revenue, Ministry of Finance; and (iii) the Chairman, PIT NDPS Advisory Board, Manipur. Vide memorandum dtd. 20/4/2023, the Detaining Authority rejected the representation dt. 30/3/2023 submitted by the detenu and again vide memorandum dtd. 26/5/2023, Secretary (Revenue), Government of India, also rejected the representation dtd. 30/3/2023 submitted by the detenu. Vide order dtd. 16/5/2023 issued by the Deputy Secretary, Government of India, Ministry of Finance, Department of Revenue, PITNDPS Division, the detention order dtd. 28/12/2022 was confirmed and fixed the period of detention for a period of one year from the date of detention i.e. 6/3/2023. The detention order dtd. 28/12/2022 has been challenged mainly on the grounds that: - (i) there were no materials and non-application of judicial mind for issuing the detention order, (ii) detention order dtd. 28/12/2022 and grounds of detention dtd. 28/12/2022 were served on 7/3/2023 to the detenu, (iii) violation of the mandatory provision of Sec. 3(3) of the PIT-ND&PS Act, (iv) violation of the mandatory provision of Sec. 9(b) of the PIT-ND&PS Act, (v) non-mentioning of the period of detention in the detention order, (vi) the representations submitted by the detenue were not disposed of on the date of filing of the writ petition, (vii) the detention order was issued in order to frustrate the bail order.

(3.) Mr. Th. Jugindro, learned counsel for the petitioner, submits that since there is violation of the mandatory provision of the PIT ND&PS Act and delay in disposal of the representations submitted by the detenu, the detention order ought to be set-aside.