Vishnudas Vaishnav Vs State of Chhattisgarh

1 - State of Chhattisgarh Through Secretary, Department of Home/police, Mahanadi Bhawan, Mantralay, Police Station And PostRakhi, Atal Nagar, Nawa Raipur, District- Raipur (C.G.)

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2 - Commissioner-Cum-Detention Officer Bilaspur Division, Distt. Bilaspur (C.G.)

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3 - Superintendent of Police Distt. Janjgir-Champa (C.G.)

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4 - Station House Officer Police Station- Nawagarh, Distt. JanjgirChampa (C.G.)

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... Respondents

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(Cause-title taken from Case Information System)

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For Petitioner	: Mr.	Yashwant Shroff,	Advocate
For Respondents-State	: Mr. Ad	Sangharsh vocate	Pandey, Government

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ASHUTOSHMISHRA Digitallysigned byASHUTOSHMISHRADate:2025.04.2810:38:02+0530

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Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Arvind Kumar Verma, Judge Order on Board

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Per Ramesh Sinha, Chief Justice

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25.04.2025

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1. Heard Mr. Yashwant Shroff, learned counsel for the petitioner as well as Mr. Sangharsh Pandey, learned Government Advocate, appearing for the State/respondents.

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2. The present petition under Article 226 of the Constitution of India has been filed with the following relief(s):-

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“10.1 That the Hon’ble Court may kindly be pleased to call for the entire record from the possession of the concerned respondent authorities for its kind perusal.

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10.2 .That, this Hon’ble Court may kindly be pleased to set aside the impugned order dated 6.3.2025 (Annexure P/4) passed by the respondent No.2/Commissioner, Bilaspur Division.

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10.3 Any other relief or relief(s) which this Hon’ble Court may deem fit or proper in the

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facts and circumstances of the case may also be granted along with cost of the petition.

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3. Brief facts of the case, in a nutshell, are that respondent No.4/SHO, Nawagarh wrote a letter dated 28.9.2024 to respondent No.3/SP, Janjgir-Champa for taking action against the petitioner under Section 3 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 on the ground that he has been continuously indulging himself in drugs trafficking. Respondent No.3/Superintendent of Police in turn wrote a letter to respondent No.2/Commissioner, Bilaspur Division to this effect and recommended for taking action against the petitioner. On Istgasha under Sections 3(1) and 10 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 being filed by respondent No.3/SP against the petitioner, respondent No.2/Commissioner summoned the concerned SHO for evidence and also issued notice to the petitioner. After recording statements on oath of the SHO and after filing of reply by the petitioner, on 6.3.2025 respondent No.2/Commissioner passed an order and thereby directed for detention of the petitioner for a period of three months in exercise of powers under Section 10 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act,

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The said order has been passed in complete violation of principle of natural justice, without explaining the charges, merely on conjecture and surmises.

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4. Learned counsel for the petitioner submits that the respondent No.2/Commissioner did not explain the charges leveled against the petitioner and proceeded to decide the matter against him. He would next contend that along with the Istgasha filed by the prosecution, no new document showing involvement of the petitioner in the drugs trafficking etc. has been filed. The prosecution only filed the criminal antecedents of the petitioner whereas in Crime No.277/2023, the petitioner has been acquitted by the learned Special Court, NDPS, Janjgir-Champa; in Criminal Case No.463/2014 he has acquitted by learned JMFC, Nawagarh of charge under Section 20B of NDPS Act and the matter pertaining to Crime No.51/2016 is pending consideration before the Hon'ble High Court. Apart from these offences, no other offence is registered against the petitioner with any other police station or pending in any other court. It is further argued that the consideration which prevailed over respondent No.2/Commissioner was two criminal cases of similar nature against the petitioner, however, he failed to appreciate the fact that out of these two criminal cases, in Crime No.277/24 he has

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been acquitted and the other one is pending consideration before the Hon'ble High Court. It has been further submitted that the petitioner is a 70 years old persons suffering from various ailments and also has the responsibility of taking care of his old ailing wife as his sons are living separately with their families. His detention would not only cause adverse impact on his health but would also result in irreparable loss to his ailing wife. It has been submitted that the respondents have passed a non-speaking impugned order, which needs to be quashed in the ends of justice as the conclusion reached by the respondent No.2 cannot be considered credible in any way because it has not been founded on any kind of legal proof or cogent evidence.

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5. On the other hand, learned State counsel opposes the submissions on behalf of the learned counsel for the petitioner and supported the impugned order.

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6. We have heard learned counsel appearing for the parties and perused the documents annexed with the writ petition.

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7. A worst case of violation of human rights took place during arrest made by the Police, the Hon'ble Apex Court in D.K. Basu vs. State of West Bengal , reported in (1997) 1 SCC 416 observed as under:

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“20. In Joginder Kamar vs. State of U.P., [(1994) 4 SCC 260: 1994 SCC (Cri) 1172] considered the dynamics of misuse of police power of arrest and opined:

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"No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another….. No arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter."

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21. ****** A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first – the criminal or society, the law violator

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or the law abider……… ”

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8. The Hon'ble Apex Court in the matter of D.K. Basu (supra), after referring to the authorities in Joginder Kumar vs. State of U.P. , reported in (1994) 4 SCC 260 . Nilabati Behera (Smt.) Alias Lalita Behera Vs. State of Orissa & Others , reported in (1993) 2 SCC 746 and State of M.P. vs. Shyamsunder Trivedi , reported in (1995) 4 SCC 262 ; the Hon'ble Apex Court laid down certain guidelines to be followed in cases of arrest and detention till legal provisions are made in that behalf as preventive measures. The said guidelines reads as follows:

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" (1) The police personnel carrying out the

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arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

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(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.

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(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the articular place, unless the attesting witness of the meme of arrest is himself such a friend or a relative of the arrestee.

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(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

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(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

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(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and

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particulars of the police officials in whose custody the arrestee is.

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(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

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(8) The arrestee should be subjected to medical examination by a trained doctor every 18 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.

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(9) Copies of all the documents including the memo of arrest, referred above, should be sent to the Illaqa Magistrate for his record.

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(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

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(11) A police control room should be provided at all district and State headquarters, where

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information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous noticeboard. "

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9. Applying the aforesaid principles in the case at hand, it is reflected that earlier, the petitioner has been made accused for the offence punishable under the provisions of NDPS Act, in which in Criminal Case No.463/2014 he has been acquitted by the learned JMFC, Nawagarh; in Crime No.277/2023, the said case is pending consideration wherein the petitioner has been granted bail by the JMFC. It is further reflected that a show-cause notice has been issued to the petitioner to which he has filed his reply, but without considering the same, respondent No.2 vide order dated 06.03.2025, directed to detain the petitioner for a period of three months.

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10. Considering the overall facts and circumstances of the case, particularly the fact that petitioner has already been granted bail by the trial Court vide order dated 11.01.2024 and for the very same offence under the provisions of NDPS Act, he cannot be detained in the custody for a period of three months as ordered by respondent No.2, we deem it appropriate to exercise our discretionary jurisdiction under Article 226 of the Constitution of India and allow the petition filed by the petitioner.

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11. Accordingly, the impugned order dated 06.03.2025 (Annexure P- 4) is hereby set-aside. The petitioner be released forthwith, if not required in any other case. However, the petitioner shall not be entitled for any compensation.

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12. In the result, the present writ petition is allowed to the extent indicated above.

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Sd/- Sd/- (Arvind Kumar Verma) (Ramesh Sinha) Judge Chief Justice

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ashu

Vishnudas Vaishnav v. State of Chhattisgarh

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Vishnudas Vaishnav v. State of Chhattisgarh

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