Banti Mahtha,Alias Sonu Mahthaa Vs the State of Jharkhand through the Chief Secretary Government of Jharkhand

2025:JHHC:22678-DB

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(Cr.) No.933 of 2024 (DB)

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Sikandar Mahtha, aged about 35 years, son of Mukund Mahtha, resident of village-Gidhani, P.O.-Deopur, P.S.Jasidih, District-Deoghar. … … Petitioner

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Versus

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The State of Jharkhand the Chief Secretary Government of Jharkhand, Project Building, P.O. Dhurwa, P.S. Jagannathpur, District-Ranchi.

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The Principal Secretary, Government of Jharkhand, Department of Home, Jail and Disaster Department, Project Building, P.O. Dhurwa, P.S. Jagannathpur, District- Ranchi.

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The Deputy Commissioner, Deoghar, P.O Deoghar, P.S. Deoghar Town, District- Deoghar.

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The Superintendent of Police Deoghar, P.O- Deoghar, P.S.- Deoghar Town, District- Deoghar.

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The Inspector of police-cum-Officer in charge, Jasidih Police Station, P.O. & P.S.- Jasidih, District, Deoghar.

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… … Respondents

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With

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W.P.(Cr.) No.1001 of 2024 (DB)

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Banti Mahtha @ Sonu Mahtha, aged about 23 years, son of Gopesh Mahtha, resident of village-Barmasia, P.O.Deoghar, P.S.-Deoghar Town, District-Deoghar.

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… … Petitioner

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Versus

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The State of Jharkhand the Chief Secretary Government of Jharkhand, Project Building, P.O. Dhurwa, P.S. Jagannathpur, District-Ranchi.

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The Principal Secretary, Government of Jharkhand, Department of Home, Jail and Disaster Department, Project Building, P.O. Dhurwa, P.S. Jagannathpur, District- Ranchi.

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The Deputy Commissioner, Deoghar, P.O Deoghar, P.S. Deoghar Town, District- Deoghar.

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The Superintendent of Police Deoghar, P.O- Deoghar, P.S.- Deoghar Town, District- Deoghar.

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The Jail Superintendent, Birsa Munda Central Jail at Hotwar, P.O.-Hotwar, P.S.-Khelgaon, District- Ranchi.

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The Jail Superintendent, Central Jail, Deoghar, P.O.Deoghar, P.S.-Deoghar Town, District, Deoghar.

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… … Respondents

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------- CORAM : HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE RAJESH KUMAR

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------For the Petitioner : Mr. Sudhanshu Kr. Deo, Advocate : Mr. Rajesh Kumar, Advocate For the Respondent : Mr. Ashwini Bhushan, A.C. to Sr. SC-II [in WP(Cr) No.933/2024] : Mr. Deepankar, A.C. to G.P.-III [in WP(Cr) No.1001/2024] ------ C.A.V. on 17.07.2025 Pronounced on 08/08/2025

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Per Sujit Narayan Prasad, J.

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Prayer in W.P.(Cr.) No.933 of 2024

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1. This writ petition has been filed under Article 226 of the Constitution of India for quashing the order dated 13.06.2024 passed in Reference No.18/PIT NDPS-25/20243616 by the Principal Secretary, Home, Jail & Disaster Management Department, Government of Jharkhand, Ranchi, under Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter to be referred to as the Act,1988) by which the writ petitioner has been directed to be detained in confinement.

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During the pendency of the instant writ petition, fresh order was passed on 24.02.2025 by which the detention has been extended for a period of one year from the date of detention which has also been challenged by filing interlocutory application being I.A. No.3449 of 2025 seeking amendment in the writ petition, in the pleading and prayer portion thereof.

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The said interlocutory application was allowed vide

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order dated 03.04.2025.

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The amended writ petition has also been filed.

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The counter affidavit to the amended writ petition has been filed.

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Prayer in W.P.(Cr.) No.1001 of 2024

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2. In this writ petition order dated 19.04.2024 passed in Reference No.18/PIT NDPS-10/2024-2402 passed by the Principal Secretary, Home, Jail & Disaster Management Department, Government of Jharkhand, Ranchi, under the Act,1988 has been challenged by which the writ petitioner has been directed to be detained in confinement.

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During the pendency of the instant writ petition, fresh order was passed on 24.12.2024 by which the detention has been extended for a period of one year from the date of detention the same has also been challenged by filing interlocutory application being I.A. No.675 of 2025 seeking amendment in the writ petition, in the pleading and prayer portion thereof.

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The said interlocutory application was allowed vide order dated 25.02.2025.

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The amended writ petition has also been filed.

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The counter affidavit to the amended writ petition has been filed.

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Factual Matrix

3. The brief facts of the case as per the pleading made in the writ petition, which are required to be enumerated, read as under:-

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W.P.(Cr.) No.933 of 2024

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4. It is the case of the petitioner in W.P.(Cr.) No.933 of 2024 that the order of detention dated 13.06.2024, in Reference No. 18/PIT NDPS-25/2024-3616, passed by respondent no.2, shows that the detaining authority has observed that the petitioner is engaged in repeated cases of illicit traffic in narcotic drugs and psychotropic substances which pose a serious threat to the health and welfare of the people and harmful to the society and further that with a view to prevent the petitioner from committing any of the acts within the meaning of illicit traffic and also against the general public especially the younger generation from the use and occupation of the drugs, it is necessary to detain him.

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5. It is the further case of the petitioner that the Respondent No.4 S.P, Deoghar issued direction upon the Respondent No. 5, to serve a copy of arrest-notice to the petitioner in the light of Memo No. 460/D.C.B. order dated 06.07.2024 contained in Reference No.18/PIT NDPS25/2024-3616, passed by the Principal Secretary, Government Jharkhand, Home, Jail & Disaster

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4

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Department, Ranchi, and also to serve notice after arrest and send the compliance-report.

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6. The petitioner had been implicated in connection with Jasidih P.S. Case No.146 of 2019 dated 27.03.2019 for offence u/s 21(b), 22(b) and 29 of NDPS Act in which the petitioner was facing trial in connection with NDPS Case No.3 of 2019, and the Learned Trial Court has been pleased to acquit the petitioner, vide order dated 01.08.2022, passed by learned Additional Sessions Judge-II, Deoghar.

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7. Apart from this case i.e. F.I.R. Jasidih P.S. Case No. 146 of 2019 in which the petitioner has been acquitted by the trial-court dated 01.08.2022 (Annexure-3), no similar nature case has been registered against the petitioner and the Respondents lodged some Sanhas against the petitioner, which are as follows:-

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(i) On the basis of secret information, police made station diary entry bearing Jasidih P.S. Sanha No05/2024 dated 08.03.2024 has been lodged by A.S.I. Amanuel Kujur, against the petitioner and others for purchasing and selling of brown Sugar.

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(ii) On the basis of secret information, police made station diary entry bearing Jasidih PS Sanha No05/2024 dated 09.03.2024 has been lodged by A.S.I. Laxman Turi, Jasidih Police Station, against

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5

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the petitioner and others for purchasing and selling of brown Sugar.

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(iii) Again on the basis of secret information, police made station diary entry bearing Jasidih P.S. Sanha No-35/2024 dated 10.03.2024 has been lodged by A.S.I. Rambachan Singh, Jasidih Police Station against the petitioner and others for purchasing and selling of brown Sugar.

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8. It is the further case of the petitioner that the respondent no.4 S.P, Deoghar issued direction upon the Respondent No. 5, directing him to serve a copy of arrestnotice to the wife of petitioner in his house on 13.09.2024 in Reference No. 18/PITNDPS- 25/2024-3616, passed by Principal Secretary, Government Jharkhand, Home, Jail & Disaster Department, Ranchi respondent no.2 vide order dated 13.06.2024 and sent on 15.06.2024 to respondent no. 3, 4 and 5 and which was received on 06.07.2024 and arrest notice served to the petitioner after lapse of about two(02) months on 13.09.2024 in which due process of law has not been followed.

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W.P.(Cr.) No.1001 of 2024 (DB)

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9. It is the case of the petitioner in W.P.(Cr.) No.1001 of 2024 (DB) that the order of detention dated 19.04.2024 passed in Reference No. 18/PIT NDPS- 10/2024-2402, by respondent no.2, shows that the Detaining Authority has

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observed that the petitioner is engaged in repeated cases of illicit traffic in narcotic drugs and psychotropic substances which pose a serious threat to the health and welfare of the people and further that with a view to prevent the petitioner from committing any of the acts within the meaning of illicit traffic and also against the general public especially the younger generation from the use and occupation of the drugs, it is necessary to detain him.

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10. It is the further case of the petitioner that in the impugned order dated 19.04.2024 the Detaining Authority has further observed that Sonu Mahtha @ Banti Mahtha is illegally trafficking of narcotic drugs inside the Deoghar Town and he did not stop his illegal activities of narcotics drugs and psychotropic substances even after his arrest in previous cases, i.e., -

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(i) Deoghar Town PS Case No.695/2023 dated 14.12.2023 was registered under section 21(A) of NDPS Act, and petitioner has been allowed bail by the Learned Special Judge, Deoghar in M.C.A. No. 1944 of 2023 vide an order dated 06.01.2024.

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(ii) That after giving detention-notice dated 19.04.2024 an F.I.R. has been lodged on against the one Rajiv Kumar Sony, Subham Singh, Bodo Khan and the petitioner (Banti Mahtha), Rohit Mahtha in connection with Deoghar Town P.S. Case No.252 of 2024 dated

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22.04.2024 for offence u/s 21(a) /20(B)IIA of N.D.P.S. Act, which is pending before the Learned Special Court, Deoghar, in this case the name of the petitioner transpired on the basis of confessional statement of co-accused Rajiv Kumar Sony.

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11. Apart from the past 01 First Information Reports (FIR) the detaining authority has further observed-

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(i) That on the basis of secret information, police lodged an F.I.R. of Deoghar Town PS Case No.695/2023 dated 14.12.2023 was registered under section 21(A) of NDPS Act, and petitioner has been allowed bail by the Learned Special Judge, Deoghar in M.C.A. No. 1944 of 2023 vide an order dated 06.01.2024.

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(ii) That on the basis of secret information, police made station diary entry bearing Deoghar Town Police Station Sanha No-27/2024 dated 29.02.2024 has been lodged against Sonu @ Banti for selling of brown Sugar.

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12. It has been stated that the accused arrested under the NDPS Act, 1985 can be ordered to be released on bail only if the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail and the petitioner herein was ordered to be released on bail in Deoghar Town P.S. Case No.695/2023 despite

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the rigours of Section 37 of the NDPS Act, 1985, and then the same is suggestive that the Court concerned might have not found any prima facie case against him. Had this fact been brought to the notice of the detaining authority, then it would have influenced the mind of the detaining authority one way or the other on the question whether or not to make an order of detention.

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13. Further, the State never thought to even challenge the bail orders passed by the special court releasing the appellant on bail and this fact was concealed by the Respondent No-03 and 04.

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14. The respondent no.6 served a copy to the petitioner in Central Jail, Deoghar on 20.09.2024 in Reference No. 18/PITNDPS- 10/2024 2402, passed by the Principal Secretary, Government Jharkhand, Home, Jail & Disaster Department, Ranchi respondent no.2 vide order dated 19.04.2024.

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15. It is evident from the factual aspect that the writ petitioners of W.P.(Cr.) No.933 of 2024 and W.P.(Cr.) No.1001 of 2024 were detained by virtue of order dated 13.06.2024 and 19.04.2024 respectively and subsequently the same was extended confining the writ petitioner in detention for a period of one year.

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16. The said decision of the State has been challenged by filing the instant writ petitions.

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Submission of the learned counsel appearing for the petitioners:

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17. Learned counsel appearing for the petitioners has taken the following grounds in assailing the impugned decision :-

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(i) The writ petitioners have illegally been confined without any subjective satisfaction of the competent authority as also the Advisory Board has confirmed the decision of confinement without taking into consideration the issue of subjective satisfaction of the competent authority.

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(ii) The issue of subjective satisfaction, in the facts of the present case, is relevant since the writ petitioners were made accused in connection with the cases of illicit trafficking of narcotic drugs and psychotropic substances. In the detention order dated 13.06.2024, of the petitioner Sikandar Mahtha, there is reference of to Jasidih P.S. Case no. 146/2019 dated 27.03.2019, in which petitioner Sikandar Mahtha was acquitted in NDPCS case no. 3/2019. In the case of the petitioner Banti Mahtha @ Sonu Mahtha because of recovery of minor quantity of narcotics, he has been directed to be released on bail by the order passed by the learned Special Judge, Deoghar. Thereafter, sanhas although have been made and based upon

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that, the writ petitioners have been detained by passing the order of detention in exercise of power conferred under Section 2e (iii) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988

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(iii) The contention has been raised that if the order of the competent sanctioning authority will be taken into consideration, it would be evident that there is no reference of the issue of acquittal and release on bail of the petitioners.

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(iv) It has further been contended that the writ petitioners have been released on bail/acquitted also which fact has also not been brought before the authority at the time of passing of the impugned orders.

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(v) Therefore, it is a case where the sanctioning authority cannot be said to have the subjective satisfaction, rather, in absence of the material having not been perused since it was not placed before the District Authority, hence, there is lack of subjective satisfaction.

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(vi) It is a case where the writ petitioners of W.P.(Cr.) No.933 of 2024 and W.P.(Cr.) No.1001 of 2024 although have been ordered to be detained vide order dated 13.06.2024 and 19.04.2024 respectively but they have been taken into custody only on 25.12.2024

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and 24.10.2024 respectively, i.e., after lapse of about more than 6 months. Hence, the slackness which has been shown by the authority in putting the writ petitioners behind confinement appears to be not available, otherwise, the writ petitioners would have been detained in confinement in order to effect the order of detention.

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(vii) It has been contended that even the ground of absconding will be of no any aid to the State and if that ground is said to be available then it was the bounden duty of the State to take recourse to Section 8 of the Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, wherein the procedure has been laid down to deal with the absconders in order to effect the order of detention.

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18. Learned counsel for the petitioners has relied on judgment rendered by the Apex Court delivered in case of Rekha Vs. State of Tamil Nadu through Secretary to Government and Another reported in (2011) 5 SCC 244; Sushanta Kumar Banilk Vs. State of Tripura and Others reported in 2022 SCC Online SC 1333 and Mortuza Hussain Choudhary Vs. State of Nagaland and Others reported in 2025 SCC Online SC 502 .

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19. Learned counsel, based upon the aforesaid grounds, has submitted that the order of detention, therefore, suffers from error and hence not sustainable in the eye of law.

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Submission made by the learned counsel for the State

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20. Per contra, Mr. Ashwini Bhushan, learned A.C. to Sr. SC-II and Mr. Deepankar, learned A.C. to G.P.-III appearing for the State, has submitted on the basis of the counter affidavit filed on behalf of the State that there is no error in the impugned decision, since, the writ petitioners have been found to be habitual in trafficking of the narcotics which would be evident from the institution of First Information Reports and Sanhas.

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21. It has been contended that so far the argument which has been advanced on behalf of the petitioners that due to the non-arrest of the petitioners for a period of about six months, the order of detention should not have been passed and not arresting the writ petitioners in execution of the order of detention itself suggest that there was no need of passing of order of detention is concerned, the petitioners cannot be allowed to take advantage of the same since petitioners themself were absconding. Hence, it is incorrect on the part of the petitioners to say that the order of detention is not for the useful purpose.

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22. Learned counsel has submitted that it is also incorrect on the part of the writ petitioners to take the

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ground that there is no subjective satisfaction, rather, each and every aspect of the matter has been taken into consideration by the competent sanctioning authority of the State Government which on being deliberated by the Advisory Board has upheld the decision so taken by the State. When two authorities have upheld the issue of confining the writ petitioners in detention, it cannot be said that there is no subjective satisfaction.

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23. Learned counsel appearing for the State, based upon the aforesaid grounds, have submitted that it is, therefore, not a case where the order of detention is said to suffer from an error.

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Analysis

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24. We have heard learned counsel for the parties and gone through the order of detention as also the pleadings made on behalf of the petitioners and the State as available in the writ petitions and the counter affidavits.

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25. The issues which require consideration herein are –

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(i) Whether in the facts and circumstances of the present case, can it be said that the authorities have got the subjective satisfaction while passing the order of detention?

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(ii) Whether the issue of subjective satisfaction can be said to be made out if the documents in entirety have

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not been placed by the District Authority along with the proposal before the Sanctioning Authority of State Government to apply its proper mind?

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(iii) Whether the order of detention can be passed in such a casual manner where the issue of the fundamental right as conferred under Article 22 of the Constitution of India particularly Sub-clause (5) thereof, is there?

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(iv) Whether the issue of absconding which has been taken on behalf of the State can be said to be acceptable in absence of any recourse having been taken of the procedure as provided under Section 8 of the Act, 1988?

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26. All the issues since are interlinked, as such, the issues are being taken up together for its consideration. But, before considering the said issues, the statutory provision as contained under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with its object and intent needs to be referred herein.

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27. The Narcotic Drugs and Psychotropic Substances Act, 1988 has been enacted keeping in view that in recent years, India has been facing a problem of transit traffic in illicit drugs. The spillover from such traffic has caused problems of abuse and addiction. This trend has created an illicit demand for drugs within the country which may result in the increase of illicit cultivation and manufacture

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of drugs. Although a number of legislative, administrative and other preventive measures, including the deterrent penal provisions in the Narcotic Drugs and Psychotropic Substances, Act, 1985, have been taken by the Government, the transit traffic in illicit drugs had not been completely eliminated. It was, therefore, felt that a preventive detention law should be enacted with a view to effectively immobilising the traffickers. The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 provides for preventive detention in relation to smuggling of drugs and psychotropic substances, but it cannot be invoked to deal with persons engaged in illicit traffic of drugs and psychotropic substances within the country. It was, therefore, felt that a separate legislation should be enacted for preventive detention of persons engaged in any kind of illicit traffic in narcotic drugs and psychotropic substances.

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28. The relevant provisions which require consideration are Section 3, 6, 8, 9 and 11 of the Act,1988, which are necessary to be referred herein which read hereunder as :-

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3. Power to make orders detaining certain persons .-(I) The Central Government or a State Government, or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the

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purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner) that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary so to do, make an order directing that such person be detained.

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(2) When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order.

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(3) For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention.

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6. Grounds of detention severable .-Where a person has been detained in pursuance of an order of detention under sub-section (1) of section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly-

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(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are-

(i) vague,

(ii) non-existent,

(iii) not relevant,

(iv) not connected or not proximately connected with such person, or

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(v) invalid for any other reason whatsoever,

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and it is not therefore possible to hold that the Government or officer making such order would have been satisfied as provided in sub-section (I) of section 3 with reference to the

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remaining ground or grounds and made the order of detention;

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(b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said sub-section (I) after being satisfied as provided in that sub-section with reference to the remaining ground or grounds.

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8. Powers in relation to absconding persons .-(l) If the appropriate Government has reason to believe that a person in respect of whom a detention order has been made has absconded or is concealing himself so that the order cannot be executed, that Government may-

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(a) make a report in writing of the fact to a Metropolitan Magistrate or a Magistrate of the first class having jurisdiction in the place where the said person ordinarily resides; and thereupon the provisions of sections 82, 83, 84 and 85 of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply in respect of the said person and his property as if the order directing that he be detained were a warrant issued by the Magistrate;

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(b) by order notified in the Official Gazette direct the said person to appear before such officer, at such place and within such period as may be specified in the order; and if the said person fails to comply with such direction, he shall, unless he proves that it was not possible for him to comply therewith and that he had, within the period specified in the order, informed the officer mentioned in the order of the reason which rendered compliance therewith impossible and of his whereabouts, be punishable with imprisonment for a term which may extend to one year, or with fine, or with both.

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(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under clause (b) of sub-section (I) shall be cognizable.

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9. Advisory Boards. -For the purposes of sub-clause (a) of clause (4) and subclause (c) of clause (7) of article 22 of the Constitution,-

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(a) the Central Government' and each State Government shall, whenever necessary, constitute one or more Advisory Boards each of which shall consist of a Chairman and two other persons possessing the qualifications specified in sub-clause (a) of clause (4) of article 22 of the Constitution;

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(b) save as otherwise provided in section 10, the appropriate Government shall, within five weeks from the date of detention of a person under a detention order, make a reference in respect thereof to the Advisory Board constituted under clause (a) to enable the Advisory Board to make the report under subclause (a) of clause (4) of article 22 of the Constitution;

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(c) the Advisory Board to which a reference is made under clause (b) shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person, called for the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven weeks from the date of detention of the person concerned;

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(d) when there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board;

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(e) a person against whom an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the

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reference to the Advisory Board and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential;

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(f) in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith.

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11. Maximum period of detention .-The maximum period for which any person may be detained in pursuance of any detention order to which the provisions of section 10 do not apply and which has been confirmed under clause (f) of section 9 shall be one year from the date of detention, and the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of section 10 apply and which has been confirmed under clause (f) of section 9, read with subsection (2) of section 10, shall be two years from the date of detention:

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Provided that nothing contained in this section shall affect the power of appropriate Government in either case to revoke or modify the detention order at any earlier time.”

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29. It is evident from the scope that the Act, 1988 has been enacted since India has been facing a problem of transit traffic in illicit drugs. It was, therefore, felt that a preventive detention law should be enacted with a view to effectively immobilising the traffickers. The Central Government and the State Governments have been

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empowered to make orders of detention with respect to any person in respect of whom an order of detention is made under the Ordinance at any time before the 31^st July, 1990 may be detained without obtaining the opinion of an Advisory Board for a period not exceeding one year from the date of his detention if the detaining authority is satisfied that such person is engaged, or is likely to engage, in illicit traffic in narcotic drugs and psychotropic substances in any area highly vulnerable to such illicit traffic.

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30. The “illicit Traffic” has been defined as under

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Section 2(e) of the Act, 1988 which reads hereunder as :-

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2. (e) "illicit traffic", in relation to narcotic drugs and psychotropic substances, means-

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(i) cultivating any coca plant or gathering any portion of coca plant;

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(ii) cultivating the opium poppy or any cannabis plant;

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(iii) engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter-State, export inter-State, import into India, export from India or transhipment, of narcotic drugs or psychotropic substances;

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(iv) dealing in any activities in narcotic drugs or psychotropic substances other than those provided in sub-clauses (i) to (iii); or

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(v) handling or letting any premises for the carrying on of any of the activities referred to in sub-clauses (i) to (iv),

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other than those permitted under the Naroctic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) or any rule or order made, or any condition of any licence, term or authorisation issued, thereunder and includes-

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(1) financing, directly or indirectly, any of the aforementioned activities:

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(2) abetting or conspiring in the furtherance of or in support of doing any of the aforementioned activities; and

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(3) harbouring persons engaged in any of the aforementioned activities:

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31. Section 3 of the Act, 1988 provides power to make

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ordes detaining certain persons wherefrom it is evident that the competent authority if satisfied, with respect to any person (including a foreigner) that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary so to do, make an order directing that such person be detained. But, for the purpose of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention.

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32. Section 8 provides by conferment of power upon the appropriate Government that if the Government has reason to believe that a person in respect of whom a detention order has been made has absconded or is concealing himself so that the order cannot be executed, that

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Government may – (a) make a report in writing of the fact to a Metropolitan Magistrate or a Magistrate of the first class having jurisdiction in the place where the said person ordinarily resides; and thereupon the provisions of sections 82, 83, 84 and 85 of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply in respect of the said person and his property as if the order directing that he be detained were a warrant issued by the Magistrate; (b) by order notified in the Official Gazette direct the said person to appear before such officer, at such place and within such period as may be specified in the order; and if the said person fails to comply with such direction, he shall, unless he proves that it was not possible for him to comply therewith and that he had, within the period specified in the order, informed the officer mentioned in the order of the reason which rendered compliance therewith impossible and of his whereabouts, be punishable with imprisonment for a term which may extend to one year, or with fine, or with both.

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33. Section 9 of the Act, 1988 provides constitution of an Advisory Board with an intent to achieve the purposes of sub-clause (a) of clause (4) and subclause (c) of clause (7) of article 22 of the Constitution of India with the conferment of power upon the Advisory Board that if any reference has been made and the materials placed before it and after calling for such further information as it may deem

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necessary from the appropriate Government or from any person, called for the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven weeks from the date of detention of the person concerned.

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34. The maximum period of detention has been provided under Section 11 of the Act, 1988 and as provided therein any person may be detained in pursuance of any detention order to which the provisions of section 10 do not apply and which has been confirmed under clause (f) of section 9 shall be one year from the date of detention, and the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of section 10 apply and which has been confirmed under clause (f) of section 9, read with sub-section (2) of section 10, shall be two years from the date of detention.

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35. It is in the backdrop of the aforesaid statutory provision, the factual aspect of the present case is to be considered in order to consider the issue as formulated hereinabove.

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36. The Hon’ble Apex Court has also taken into consideration the issue of detention and agreeing with the object of the preventive detention enactments, the law has been laid down that since the power to detain a person is snatching away the liberty as enshrined as a fundamental right under the Constitution and, as such, the said power is to be exercised with all care and circumspection so that there may not be any vice of malice or the arbitrary exercise on the part of the State to snatch away the personal liberty of an individual.

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37. It is for this reason also specific reference has been made under Section 3(3) of the Act, 1988 wherein Clause (5) of Article 22 of the Constitution of India has been referred, meaning thereby, the mandate of the Constitution as enshrined under Article 22 is mandatorily to be followed so as to not to subject any individual from the vice of arbitrariness for the purpose of snatching away the liberty. But, simultaneously it has also been held that if situation so warrants then the detention order can be passed but subject to fulfilment of all requirements as provided under Section 3, Section 6 and Section 8 of the Act, 1988, by taking care of that the period of detention does not exceed one year as provided under Section 11 of the Act, 1988 so as to make balance while snatching away the liberty of an individual, reference in this regard be made to the

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25

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judgment rendered by Hon’ble Apex Court in the case of Mortuza Hussain Choudhary Vs. State of Nagaland and Others reported in 2025 SCC Online SC 502 , wherein at para-2 Apex Court has held as follows-

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“2. Preventive detention is a draconian measure whereby a person who has not been tried and convicted under a penal law can be detained and confined for a determinate period of time so as to curtail that person's anticipated criminal activities. This extreme mechanism is, however, sanctioned by Article 22(3)(b) of the Constitution of India. Significantly, Article 22 also provides stringent norms to be adhered to while effecting preventive detention. Further, Article 22 speaks of the Parliament making law prescribing the conditions and modalities relating to preventive detention. The Act of 1988 is one such law which was promulgated by the Parliament authorizing preventive detention so as to curb illicit trafficking of narcotic drugs and psychotropic substances. Needless to state, as preventive detention deprives a person of his/her individual liberties by detaining him/her for a length of time without being tried and convicted of a criminal offence, the prescribed safeguards must be strictly observed to ensure due compliance with constitutional and statutory norms and requirements.”

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38. Adverting to the factual aspect of the present case,

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it is the admitted case that the order of detention was passed on 13.06.2024 in respect of petitioner Sikandar Mahtha and on 19.04.2024 in respect of petitioner Banti Mahtha @ Sonu Mahtha.

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39. We have perused the aforesaid detention orders of both the petitioners. The detention order of the petitioner Sikandar Mahtha was issued by Respendent no.2 on 13.06.2024 and he was detained on 25.12.2024.

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40. Further, detention order of the petitioner Banti Mahtha @ Sonu Mahtha, was issued on 19.04.2024 and he was detained on 24.10.2024. Subsequent thereto, i.e., after passing of the order of detention, petitioners were not immediately taken into custody in execution of order of confinement. Rather, they were taken into custody after lapse of a period of more than six months. Thus, petitioners were allowed to remain outside the purview of confinement order for a period more than six months approximately.

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41. Thus, in this pretext, submission has been made on behalf of the petitioners that if that was the situation by not arresting the writ petitioners, then for what the order of detention was passed and if such was the conduct of the authority, then passing of detention order itself suggests that there was no requirement of passing the order of detention. Otherwise, the writ petitioners would have been taken into custody immediately after order of detention. Here, it is pertinent to note that Hon’ble Apex Court in case of Sushanta Kumar Banilk (Supra) , at para-15 has said that an unreasonable and unexplained delay in securing a detenu and detaining him vitiates the detention order.

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42. This Court has found substance in the said argument keeping the object of the Act, 1988 which has been enacted for the purpose of dealing with the traffickers of narcotics by putting such person on detention even

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without instituting an F.I.R. taking into consideration the nature of offence which is said to be crime against society.

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43. The question of subjective satisfaction has also been taken. This Court, in order to appreciate the said argument, has gone through the order of detention of both the petitioners. We find that in detention order dated 13.06.2024 pertaining to petitioner Sikandar Mahtha, there is reference to Jasidih P.S. Case no. 146/2019 dated 27.03.2019. But, the petitioner has annexed the copy of Judgment dated 01.08.2022(Annexure-3) passed in NDPS case no. 3/2019 and on perusal, we find that NDPS case no. 3/2019 arose out of aforesaid Jasidih P.S. Case no. 146/2019 dated 27.03.2019 and the petitioner was one of the accused. Petitioner faced trial for the charges under sections 21(b),22(b) and 29 of Narcotics Drugs and Psychotropic Substance Act,1985 and was acquitted of the charges by the learned trial court by order dated 01.08.2022, but, the said order of acquittal was not placed before the Sanctioning Authority. Further, in detention order dated 19.04.2024, of the petitioner Banti Mahtha @ Sonu Mahtha, there is reference to Deoghar (Town) P.S. Case no. 695/2023 dated 14.12.2023 under section 21 of the NDPS Act. But, as the seized material was within the purview of small quantity, petitioner Banti Mahtha @ Sonu Mahtha, was released on bail by the learned Special Judge

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in Mis. Criminal Application No. 1944/2023 on 06.01.2024(Annrxure-2). But, the said order granting bail by the learned court has not been placed before the authority wherein the reference of the quantity has been said to be not commercial in nature, which is a case where even the parameter stipulated under Section 37 of the NDPS Act is not applicable being the seizure of the narcotics minimum in quantity.

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44. At this juncture, it would be important to refer the judgment delivered by the Hon’ble Apex Court in case of Sushanta Kumar Banilk (Supra) , wherein Apex court has dealt the issue of vital material or vital fact withheld and not placed by the sponsoring authority before the detaining authority. Paragraph 25, 27 and 28 of the said judgment is quoted hereinbelow for ready reference-

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“25. In Asha Devi v. Additional Chief Secretary to the Government of Gujarat , 1979 Cri LJ 203, this Court pointed out that:

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“… if material or vital facts which would influence the minds of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not considered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal.”

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27. From the above decisions, it emerges that the requisite subjective satisfaction, the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influence his mind are either withheld or suppressed by the sponsoring authority or ignored and not

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considered by the detaining authority before issuing the detention order.

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28. It is clear to our mind that in the case on hand at the time when the detaining authority passed the detention order, this vital fact, namely, that the appellant detenu had been released on bail by the Special Court, Tripura despite the rigours of Section 37 of the NDPS Act, 1985, had not been brought to the notice and on the other hand, this fact was withheld and the detaining authority was given to understand that the trial of those criminal cases was pending.”

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45. The question of subjective satisfaction, therefore, assumes paramount satisfaction so far as the statutory mandate as provided under Section 3 and the very object of the Act, 1988 is concerned, wherein the subjective satisfaction of the concerned authority is a primary condition for passing the detention order, meaning thereby, there must not be mechanical order.

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46. The connotation of subjective satisfaction means that the authority, who is proposing to put a person in confinement, is to produce all relevant documents before the sanctioning authority for its consideration before taking any decision of snatching away the personal liberty. Subjective satisfaction, therefore, means the active application of mind and such active application of mind cannot be said to be made applicable in absence of the relevant documents for which the person concerned is being detained by infringement of his fundamental right as enshrined under the Constitution of India.

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47. The F.I.R. and Sanha is the basis of passing the order of detention but very surprisingly the order granting bail in connection with Deoghar (Town) P.S. Case No.695 of 2023 to the petitioner Banti Mahtha @ Sonu Mahtha and the order of acquittal passed by learned Additional Sessions Judge-II, Deoghar in N D P S Case No.03 of 2019 to the petitioner Sikandar Mahtha have not been placed before the Sanctioning Authority.

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48. The sanctioning authority would have applied its mind if the order granting bail to the petitioner Banti Mahtha @ Sonu Mahtha, and the order of acquittal of petitioner Sikandar Mahtha would have been placed by the authority who has proposed the order of detention.

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49. The conduct of the proposing authority is further appears to be not proper since the order of detention has been given effect to after lapse of more than six months which also clarifies that the conduct of the authority who has proposed detention, said to be very casual.

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50. The mandate of the Act, 1988 prohibits that there must not be casual approach by the authority while passing the order of detention. The State, however, has taken the plea that the delay in arrest is caused by the petitioners themselves since they were absconding. Even accepting the same, even then the procedure has been laid down under Section 8 of the Act, 1988 that what to be done

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by the State machinery in order to secure the arrest of such detenu. But, it is admitted case of the State that no such procedure has been taken recourse as provided under Section 8 of the Act, 1988, since, no submission to that effect has been made in the counter affidavit.

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51. This Court, on consideration of the aforesaid factual aspect and applying the same on the teeth of Article 21 and 22 of the Constitution of India, is of the view that the liberty of such person cannot be taken away in such a casual manner as is the case herein.

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52. This Court, therefore, is of the view that the orders of detention need interference. 53. Accordingly, the order dated 13.06.2024 passed in Reference No.18/PIT NDPS-25/2024-3616 and the subsequent order dated 24.02.2025 passed by the Principal Secretary, Home, Jail & Disaster Management Department, Government of Jharkhand, Ranchi, subject matter of W.P.(Cr.) No.933 of 2024(DB) as also the order dated 19.04.2024 passed in Reference No.18/PIT NDPS-10/20242402 and subsequent order dated 24.12.2024 passed by the Principal Secretary, Home, Jail & Disaster Management Department, Government of Jharkhand, Ranchi, subject matter of W.P.(Cr.) No.1001 of 2024 (DB), are hereby quashed and set aside.

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54. The writ petitions stand allowed.

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55. Consequently, the petitioners, abovenamed, are directed to be released forthwith, if not required in any other case.

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I agree (Sujit Narayan Prasad, J.)

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(Rajesh Kumar, J.)