Allowed

Rabia Khatun v. the State of Assam and 5 Ors.

Gauhati HC1 Dec 2025W.P.(Crl.)/3/2025

Case brief

AI extract

What is this about?

The Gauhati High Court quashed a preventive detention order under the NDPS Act. The court held that a 7-day delay in forwarding the detenu's representation was unexplained and fatal. Furthermore, the State's deferment of decision pending the Advisory Board's opinion violated the requirement for independent consideration.

What did the court decide?

Detention Order dated 05.12.2024 quashed; detenu directed to be released if not wanted in any other case.

Rabia Khatun Vs the State of Assam and 5 Ors. — Narcotics (NDPS) | Gauhati HC (2025)

Page No.# 1/11

GAHC010023052025

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : W.P.(Crl.)/3/2025

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RABIA KHATUN W/O- JOHIRUL ISLAM, VILL. AND P.O.- RAJMITA, P.S.- LAKHIPUR, DIST.- GOALPARA, ASSAM.

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VERSUS

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THE STATE OF ASSAM AND 5 ORS. REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, HOME AND POLITICAL, DEPARTMENT, DISPUR, GUWAHATI06.

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2:THE ADDITIONAL CHIEF SECRETARY TO THE GOVT. OF ASSAM HOME AND POLITICAL DEPARTMENTS DISPUR GUWAHATI-06.

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3:THE DIRECTOR OF GENERAL OF POLICE ASSAM ULUBARI GUWAHATI-7 4:THE DISTRICT COMMISSIONER GOALPARA ASSAM

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5:THE SUPERINTENDENT OF POLICE GOALPARA ASSAM

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6:THE SUPERINTENDENT OF DISTRICT JAIL GOALPARA

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Page No.# 2/11

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ASSA

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Advocate for the Petitioner : MR. A M KHAN, MR K J HAZARIKA,MR. R B PHOOKAN,MR P CHOUDHURY,MS P SAIKIA,MR T T MONI

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Advocate for the Respondent : GA, ASSAM,

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BEFORE

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HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE YARENJUNGLA LONGKUMER

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ORDER

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Date : 02-12-2025

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(K.R. Surana,J)

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Heard Mr. R.B. Phookan, learned counsel for the petitioner as

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well as Mr. D. Nath, learned Senior Government Advocate along with Mr. N. Kalita, learned Government Advocate for the State.

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2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned Detention Order No.eCF558733/123 dated 05.12.2024 of her husband by virtue of which the empowered authority under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred as PITNDPS Act, for short), in exercise of power under Section 3(1) of the PITNDPS Act, 1988, ordered the detention of the petitioner’s husband namely Johirul Islam, under the PITNDPS Act until further orders.

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3. It may be mentioned that during the pendency of this writ petition, the Advisory Board under the PITNDPS Act rendered its opinion dated 17.02.2025, recording its satisfaction regarding available of sufficient grounds for detention of the petitioner under Section 3(1) of the PITNDPS Act. Thereafter, the empowered officer under the PITNDPS Act, by order dated 25.02.2025, confirmed the Detention Order dated 05.12.2024 for a period of one year from the date of detention.

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4. Pursuant to notice issued in this writ petition, the State respondent nos. 1 and 2 had filed their affidavit-in-opposition on 02.06.2025 and justified the issuance of the Detention Order dated 05.12.2024 and also informing the Court about the confirmation of the Detention Order on 25.02.2025, on the basis of the opinion dated 17.02.2025 of the Advisory Board under the PITNDPS Act and further informing the Court that the representation submitted by the petitioner was disposed of by the concerned State authorities.

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5. The learned counsel for the petitioner has made submission on the basis of the pleadings made in the writ petition and the affidavit-in-reply, specifically urging all the points pleaded therein and supporting the contention that the Detention Order is vitiated due to the delay in disposal of

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the representation and the fact that the husband of the petitioner was on

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bail and did not take any steps which would be prejudicial to the interest of the society, the impugned Detention Order is being assailed.

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6. The learned counsel for the petitioner has placed reliance on the decision of the following cases:-

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Ameena Begum vs State of Telengana and others reported in (2023) 9 SCC 587.

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Sushanta Kumar Banik vs State of Tripura & others reported in 2022 SCC OnLine SC 1333.

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Alia Begum vs State of Assam and others in W.P.(Crl)

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20/2022

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Jahanara Bibi vs Union of India and others reported in

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2025 SCC OnLine Cal 7003.

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7. Per contra, supporting the impugned detention order, the learned Senior Government Advocate has submitted that after the representation of the petitioner was received on behalf of her detained husband, the Advisory Board was in seisin of the matter relating to the preventive detention order of the husband of the petitioner and the first meeting was held on 20.01.2025 and accordingly, all the records relevant to the case were requisitioned by the said Advisory Board and the Advisory Board gave its opinion on 17.02.2025, justifying the Detention Order and subsequently, on

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25.02.2025, the confirmation order was passed by the competent authority. Accordingly, the State has an explaination for the delay that occurred in disposing of the representation dated 08.01.2025 by the petitioner by order dated 10.04.2025 passed by the competent authority. It is further submitted that though bail was granted to the petitioner, but his action of indulging in repeated offences relating to trafficking of drugs and narcotic substances was found to be prejudicial to the interest of the youth of the State and the district of Goalpara in particular and therefore, the Detention Order was fully justified.

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8. The learned Senior Government Advocate has placed reliance on the decision of this Court in the case of Dibankar Moran@ Rabin Baruah@Dharmeswar Deori vs Union of India and Ors., reported in (2009) 3 GLR 740.

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9. In this case the Detention Order dated 05.12.2024 has been challenged before this Court. During the pendency of this writ petition, the competent authority has passed an order dated 25.02.2025, thereby confirming the Detention Order for a period of one year from the date of detention. Therefore, the question would arise as to whether the confirmation of the Detention Order, which is passed on accepting the report

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of the Advisory Board can be held to be invalid merely because of the two

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grounds urged by the learned counsel for the petitioner, firstly, that the Detention Order is invalid on the ground of delay in disposal of the representation and secondly, whether the non-assailing of the order of confirmation would negate the nature of challenge made in the writ petition.

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10. In this case, the Advisory Board had given its opinion on 17.02.2025, which is within the period of 3(three) months from the order of detention. Therefore, in the present case in hand, there is due compliance of clause (4) of Article 22 of the Constitution of India, as the matter was referred to the Advisory Board and only thereafter the confirmation orders were passed.

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11. Under clause (5) of Article 22 of the Constitution of India, any person who is detained in pursuance of an order made under any law provided for detention, the detained person is seen to have two rights. Firstly, the authority making the order shall, as soon as may be, communicate to such person the ground on which such order has been made and secondly, the detained person shall be given an opportunity at the earliest of making representation against the order. In this case, there is due compliance with clause(5) of Article 22 of the Constitution of India.

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12. In so far as the delay in disposal of the representation is concerned, there is no legal mandate about the number of days within which

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a representation should be disposed of. However, in the case of Dibankar Moran @ Rabin Baruah @ Dharmeswar Deori (supra), this Court has observed that the delay if explained by the authorities would be a relevant factor.

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13. This Court in the case of Rongjan Momin vs Union of India and others reported in 2005 (1) GLT 173 has held that unexplained delay of 7 days in forwarding representation would be fatal. In the present case in hand, on a perusal of the order dated 10.04.2025 passed by the competent authority, thereby rejecting the representation submitted by the petitioner on 08.01.2025, a reference has been made that the representation dated 08.01.2025 submitted by the petitioner was forwarded by the Superintendent of District Jail, Goalpara, vide letter No.GLPJ.31/2025/53 dated 15.01.2025. However, there is no record of any explanation of the delay why the representation was not forwarded with utmost urgency. Thus, in this case also, the delay of 7 days in forwarding the representation is not explained.

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14. In the case of Jayanaryan Sukul vs State of West Bengal reported in (1970) 1 SCC 219, the Constitution Bench of the Supreme Court of India had laid down 4 principles which should govern the consideration of the

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representation of the detenue. The relevant paragraphs 19 and 20 are

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quoted below:-

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“19. No definite time can be laid down within which a representa- tion of a detenu should be dealt with save and except that it is a constitutional right of a detenu to,have his representation considered as expeditiously as possible. It will depend upon the facts and circumstances of each case whether the appropriate Government has disposed of the case as expeditiously as possible for otherwise in words of Shelat, J. who spoke for this Court in the case of Khairul Haque(1) "it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning.

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Broadly stated, four principles are to be followed in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It in true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, 'the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenu'S representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu.”

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15. From the above quoted para 20 of the case of Jayanarayan

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(supra), it is noted that the consideration of the representation of the

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detenue by the appropriate authority is held to be independent of any action

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by the Advisory Board. In the present case in hand, the competent authority

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Page No.# 9/11

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in the State Government, while rejecting the representation dated 10.04.2025, appears to have waited till the opinion of the Advisory Board was pronounced. Therefore, it appears that the competent authority did not independently exercise its mind on the representation, which appears to be the requirement of law as laid down by the Supreme Court of India in the case of Jayanaryan (supra). Therefore, in the present case in hand, the delay in forwarding the representation dated 08.01.2025 on 15.01.2025, after a lapse of 7 days on the part of the Superintendent of District Jail, Goalpara, which is not accompanied by any materials on record explaining

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the delay in forwarding the said representation, is found to vitiate the impugned Detention Order.

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16. Moreover, the competent authority in the State Government, while rejecting the representation by order dated 10.04.2025, is found to have not taken up the same with utmost urgency and deferred its decision making process till the Advisory Board gave its opinion and the said delay is also found to be fatal.

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17. Accordingly, on these two counts, the impugned order of detention dated 05.12.2024 is liable to be interfered with on the ground that the detaining authority, while issuing the order of preventive detention, did not follow the conditions for exercise of the said power. Moreover, in the

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impugned detention order dated 05.12.2024, though there is a reference to

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three cases against the husband of the petitioner for dealing with narcotic drugs and psychotropic substances are referred being:-

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(1) Krishnai PS Case no.30/2024 U/S-21(b)/29 NDPS Act;

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(2) Lakhipur PS Case No.0292/2017 U/S 21(c) of NDPS Act; and

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(3) Lakhipur PS Case No.0296/2021 U/S-22(c) of the NDPS Act/489-B of IPC are referred to, but in course of submission, the learned counsel for the petitioner has submitted that in connection with Krishnai PS Case no.30/2024, bail was granted on 11.06.2024, bail in Lakhipur PS Case No.0292/2017 was passed on 23.09.2021 and in Lakhipur PS Case No.0296/2021, bail was passed on 27.03.2017.

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18. The impugned detention order dated 05.12.2024 does not refer to any subsequent act or preparation on the part of the petitioner which required his preventive detention. In the ground of arrest, which is accompanying detention order dated 05.12.2024, there is a reference to the fact that the petitioner was not under Police remand and was released on bail. Accordingly, in the absence of any act or preparation on the part of the petitioner to deal with illegal trafficking of narcotic, drugs and psychotropic substance, it appears that the Detention Order was passed to overcome the grant of bail by the Court having jurisdiction. In view of the above, the

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impugned detention order dated 05.12.2024 is held to be not sustainable.

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The two points for determination framed hereinbefore are answered accordingly.

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19. In view of the discussions above, the Court does not

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consider it to be necessary to go into other points raised by the learned counsel for the petitioner.

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20. For the reasons stated above, the Detention Order No.eCF558733/123 dated 05.12.2024 is found to have been vitiated and accordingly, this writ petition is accordingly allowed. As a result, the said

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impugned Detention Order dated 05.12.2024 is hereby set aside and quashed. It is needless to say that the consequential order No.eCF558733/235 dated 25.02.2025 issued by the competent authority, thereby extending the period of detention for one year from the date of detention, would not come in the way of the State to release the petitioner upon quashing of the impugned detention Order.

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21. The detenue namely, Johirul Islam, is directed to be set at liberty if not otherwise wanted in any other case.

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JUDGE JUDGE

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Comparing Assistant

Rabia Khatun v. the State of Assam and 5 Ors.

Case brief

What is this about?

What did the court decide?

Rabia Khatun v. the State of Assam and 5 Ors.

Case brief

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