Jharkhand High Court
Charitra Kumar Dangi @ Chalitar Dangi @ … vs The State Of Jharkhand on 22 August, 2024
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Criminal) No.557 of 2024
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Charitra Kumar Dangi @ Chalitar Dangi @ Charitra Dangi,
aged about 33 years, son of Suraj Dangi, resident of Village &
P.O. & P.S. Gidhour, District Chatra (Jharkhand).
... ... Petitioner
Versus
1. The State of Jharkhand.
2. The Principal Secretary, Department of Home, Prisons &
Disaster Management, having its office at Project
Building, Dhurwa, P.O. & P.S. Dhurwa, District Ranchi
(Jharkhand)
3. The Director General of Police, Jharkhand.
4. The Superintendent of Police, Chatra.
5. The Deputy Commissioner, Chatra.
6. The Circle Officer, Gidhour, District Chatra.
7. The Officer-In-Charge, Gidhour Police Station, Gidhour,
Chatra.
... ... Respondents
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PRESENT : SRI ANANDA SEN, J.
: SRI GAUTAM KUMAR CHOUDHARY, J.
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For the Petitioner : Mr. Manoj Kumar Choubey,
Advocate.
For the State : Mr. Ashutosh Anand, AAG.
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ORDER
CAV on 19.08.2024 Pronounced on : 22/08/2024
Per Ananda Sen, J.:
By way of this Criminal Writ Petition under Article 226
of the Constitution of India in the nature of certiorari, the
petitioner has challenged the impugned detention order
(Number-18/PITNDPS-07/2024-2453) dated 19.04.2024
passed by respondent No.2, wherein by exercising powers
under Section 3(3) of The Prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substances Act, 1988
(PITNDPS Act), the order of detention has been passed
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against the petitioner.
2. Learned counsel representing the petitioner
argues that the detention order has been passed without
application of mind. It is his contention that the criminal
cases filed under the NDPS Act, wherein the petitioner was
tried ended in acquittal, that being so the entire allegation
against the petitioner that he is involved in dealing with
drugs and narcotic substances, is without any basis. So far as
the reference of some Station Diary Entries are concerned,
those admittedly did not culminate in any F.I.R. or
proceedings against the petitioner, thus, they cannot form a
basis of passing the detention order. On these grounds, he
challenges the impugned order.
3. Learned AAG Mr. Ashutosh Anand, representing
the respondent-State submitted that the order has been
passed under the provisions of Section 3 of The Prevention of
Illicit Traffic in Narcotic Drugs and Psychotropic Substances
Act, 1988. The order is not cryptic and assigns reason as to
why the order of detention has been passed against the
petitioner. The Deputy Commissioner, Chatra, forwarded a
proposal for detention of the petitioner invoking the
provisions of the aforesaid Act to the Secretary, Department
of Home, Prison and Disaster Management, Jharkhand, and
the grounds of detention has been mentioned therein.
As per the State, the petitioner is a professional
and well known brown sugar smuggler and due to the act of
this petitioner and others attached with him, the entire image
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of the State has been tarnished. It is not only this petitioner
but also his family members including his brother are
involved in a drug racket. There are several criminal cases
pending against the petitioner and even after his release on
bail, the petitioner gets involved in dealing with narcotic and
psychotropic substances. Thus, it was necessary to pass a
detention order against the petitioner. The grounds for
detention was served upon the petitioner and after
consideration of all the facts, a reasoned order has been
passed which should not be interfered with.
4. We have heard the learned counsel representing
the petitioner and learned AAG representing the State.
5. The impugned order has been passed against the
petitioner detaining him by invoking Section 3 of The
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988 (hereinafter referred to as „PITNDPS
Act‟). The impugned order has been placed on record as
Annexure-1 to this Criminal Writ Petition.
6. The PITNDPS Act, was promulgated to provide for
detention to prevent illicit traffic of narcotic drug and
psychotropic substances and for the matters connected
thereto with a view to prevent any person from engaging any
illicit trafficking of narcotic drugs and psychotropic
substances. A detention order can be passed in terms of
Section 3 of the PITNDPS Act. In terms of Section 3, the
power is vested upon the Central Government or the State
Government or any Officer of the Central Government not
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below the rank of Joint Secretary to that Government
specially empowered for that purpose or any officer of the
State Government not below the rank of Secretary of that
Government specially empowered for the purpose to pass an
order of detention. As per Section 3, the said officer while
passing the order of detention must be satisfied that the
person against whom the detention order is being passed is
engaged in illicit traffic in narcotic drug and psychotropic
substance.
7. It is necessary to quote Section 3(1) of the
PITNDPS Act for better appreciation which reads as here
under:-
“3. Power to make orders detaining certain
persons.– 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 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.
(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.
(3) For the purposes of Cl. (5) of Art. 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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8. The word “illicit traffic” is defined under Section 2
(e) of the PITNDPS Act. It is necessary to quote Section 2 (e)
of the PITNDPS Act, which is as here under:-
“2. Definitions.– In this Act, unless the context
otherwise requires,–
(a) …………
(b) ………….
(c) .............
(d) .............
(e) “illicit traffic” , in relation to narcotic drugs and
psychotropic substances, means–
(i) cultivating any coca plant or gathering any portion or
coca plant ;
(ii) cultivating the opium poppy or any cannabis plant;
(iii) engaging in the production, manufacture,
possession, sale, purchase, transportation, warehousing,
concealment, use or consumption, import inter-State,
export inter-State, import in India, export from India or
transhipment, of narcotic drugs or psychotropic
substances;
(iv) dealing in any activities in narcotic drugs or
psychotropic substances other than those provided in
sub-clauses (i) to (iii); or
(v) handling or letting any premises for the carrying on
of any of the activities referred to in sub- clauses (i) to
(iv), other than those permitted under the Narcotic
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,–
(1) financing, directly or indirectly, any of the
aforementioned activities ;
(2) abetting or conspiring in the furtherance of or in
support of doing any of the aforementioned activities;
and
(3) harbouring persons engaged in any of the
aforementioned activities;”
9. As per Section 3(2), once a detention order is
made by the State Government or by an officer empowered
by the State Government, the State Government is mandated
to forward a report to the Central Government within ten
days with respect to the said order. As per Section 3(3)
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communication to the detained person in respect of the
detention order and the grounds of detention shall be made
available to the detained person ordinarily within five days
and in exceptional cases not later than fifteen days from the
date of detention. If under exceptional circumstances, the
order along with the reasons therewith is communicated after
five days and within fifteen days, the reasons for the delay
should also be recorded in writing. Aforesaid is the mandate
of Section 3(3) of the Act.
10. Section 6 provides that the ground of detention is
severable. It provides that if a person is detained on two or
more grounds, such order of detention shall be deemed to
have been made separately on each of such grounds and
such order shall not be deemed to be invalid or inoperative
merely because one or some of the grounds are vague, non-
existent, non-relevant, not connected with such person or
invalid for any other reason. As per the aforesaid provision, it
will be deemed that if one of the ground falls within the
aforesaid categories, then it will be deemed that the order of
detention is passed in reference to the remaining grounds. It
is necessary to quote Section 6 (a) and (b) :-
“6. Grounds of detention severable.– Where a
person has been detained in pursuance of an order of
detention under sub-section (1) of Sec. 3 which has been
made on two or more grounds, such order of detention
shall be deemed to have been made separately on each
grounds and accordingly–
(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,
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(iv) not connected or not proximately connected
with such persons, or
(v) invalid for any other reason whatsoever, and it
is not therefore possible to hold that the
Government or officer making such order would
have been satisfied provided in sub-section (1) of
Sec. 3 with reference to the remaining ground or
grounds and made the order of detention;
(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 (1) after being
satisfied as provided in that sub- section with
reference to the remaining ground or grounds.”
11. Section 7 of the PITNDPS Act provides that
detention order will not be invalid or inoperative merely
because the person to be detained is outside the limits of the
territorial jurisdiction of the Government or the Officer
making the order or the place of detention of such person is
outside the said limits. It is necessary to quote Section 7 of
the PITNDPS Act, which reads hereunder:-
“7. Detention orders not to be invalid or
inoperative on certain grounds.– No detention
order shall be invalid or inoperative merely by reason–
(a) that the person to be detained thereunder is
outside the limits of the territorial jurisdiction of
the Government or the officer making the order
of detention; or
(b) that the place of detention of such person is
outside the limits.”
12. In the instant case, I find that the order of
detention has been passed by the Principal Secretary of the
Government of Jharkhand. As per Section 3 of the said Act,
the said officer has power to pass the aforesaid detention
order. Further none questioned the power of the respondent
No.2. Thus, the impugned order is not without jurisdiction.
13. When I go through the order of detention, I find
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that the reasons for detention has been mentioned therein. It
has been mentioned that the petitioner is a professional and
renowned dealer in brown sugar. Because of his act, the
image of the State of Jharkhand is gaining bad reputation.
His brother is also involved in the activities of dealing in
narcotics. Because of this act, police of several States have
conducted raids in his house. There are several cases and
Station Diaries lodged against this petitioner and he has been
sent to jail on several occasions but he has not amended his
behaviour and nature. Even after obtaining bail, he is
involved in dealing with drugs and narcotic substance. It has
further been mentioned that against the petitioner, following
F.I.R.s and Station Diary Entries have been lodged :-
FIRs :-
i. “Gidhour P.S. Case No.57 of 2016 under Sections
147/ 148/ 149/ 323/ 342/ 353/ 332/ 427/ 504/ 152
IPC.
ii. Rajpur P.S. Case No.5 of 2018, under Sections
8(B)/15/18/18(c)/22/32/46 of the NDPS Act and
Section 33 of Forest Act, 1927
iii. Rajpur P.S. Case No.3 of 2018 under Sections
8/(B)/15/18/18(C)/22/34/46 of the NDPS Act
iv. Khunti P.S. Case No.107 of 2017, under Sections
414/34 IPC and Section 17(ii) of the NDPS ActStation Diary Entries :-
i. Gidhour Station Diary No.8 of 2023
ii. Gidhour Station Diary No.17 of 2023,
iii. Gidhour Station Diary No.23 of 2023,
iv. Gidhour Station Diary No.14 of 2023
v. Gidhour Station Diary No.21 of 2024."
Thus, it has been concluded by the Authority that
the petitioner does not have any regard for law and as he is
indulging in illegal activities in dealing with narcotic drugs
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and psychotropic substances which has a negative impact onhumanity and on the nation and there is a law and order
problem, it is necessary to detain him.
14. From the aforesaid order of detention, it is clear
that the detention is only on one ground i.e. the petitioner is
engaged in dealing with narcotic, drugs and psychotropic
substances and is habitual in such dealings. The basis of
coming to the said conclusion is the criminal cases mentioned
above and the Station Diary Entries. Thus, the satisfaction of
the authority passing the detention order that the petitioner
is a habitual dealer in drugs is based on the criminal cases
against him.
15. Since the ground of detention is only one, there
cannot be any application of Section 6 of the PITNDPS Act.
16. A preventive detention amounts to loss of liberty
without there being any trial. This detention is preventive and
not punitive. There should be sufficient materials before the
detaining authority to conclude that a person needs to be
detained. The satisfaction as envisaged in Section 3 is
paramount and there should be a strong basis of such
satisfaction. The satisfaction cannot be merely on assumption
and presumptions. The same should be based on some
sufficient materials. The satisfaction should be raised on
materials which are of rationally probative value and the
entirety of the material placed before the Authority should be
considered.
17. The Hon‟ble Supreme Court in the case of
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Ameena Begum Vs. State of Telangana & Ors. reported
in (2023) 9 SCC 587, has culled out the principles and the
test of legality which the Courts should embark upon while
dealing with prevention detention order. It is necessary to
quote para-27 & 28 which are as hereunder:-
“27. Be that as it may, culling out the principles of law
flowing from all the relevant decisions in the field, our
understanding of the law for deciding the legality of an
order of preventive detention is that even without
appropriate pleadings to assail such an order, if
circumstances appear therefrom raising a doubt of the
detaining authority misconceiving his own powers, the
Court ought not to shut its eyes; even not venturing to
make any attempt to investigate the sufficiency of the
materials, an enquiry can be made by the Court into
the authority’s notions of his power. Without being
remotely concerned about the sufficiency or otherwise
of the materials on which detention has been ordered,
the Court would be justified to draw a conclusion, on
proof from the order itself, that the detaining authority
failed to realise the extent of his own powers. This is
quite apart from questioning the action for want of
sufficient materials that were before the detaining
authority. The authority for the detention is the order of
detention itself, which the detenu or the Court can
read. Such a reading of the order would disclose the
manner in which the activity of the detenu was viewed
by the detaining authority to be prejudicial to
maintenance of public order and what exactly he
intended should not be permitted to happen. Any order
of a detaining authority evincing that the same runs
beyond his powers, as are actually conferred, would not
amount to a valid order made under the governing
preventive detention law and be vulnerable on a
challenge being laid. ”
“28. In the circumstances of a given case, a
constitutional court when called upon to test the
legality of orders of preventive detention would be
entitled to examine whether:
28.1. The order is based on the requisite satisfaction,
albeit subjective, of the detaining authority, for, the
absence of such satisfaction as to the existence of a
matter of fact or law, upon which validity of the
exercise of the power is predicated, would be the sine
qua non for the exercise of the power not being
satisfied;
28.2. In reaching such requisite satisfaction, the
detaining authority has applied its mind to all relevant
circumstances and the same is not based on material
extraneous to the scope and purpose of the statute;
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28.3. Power has been exercised for achieving the
purpose for which it has been conferred, or exercised
for an improper purpose, not authorised by the statute,
and is therefore ultra vires;
28.4. The detaining authority has acted independently
or under the dictation of another body;
28.5. The detaining authority, by reason of self-
created rules of policy or in any other manner not
authorised by the governing statute, has disabled itself
from applying its mind to the facts of each individual
case;
28.6. The satisfaction of the detaining authority rests
on materials which are of rationally probative value,
and the detaining authority has given due regard to the
matters as per the statutory mandate;
28.7. The satisfaction has been arrived at bearing in
mind existence of a live and proximate link between
the past conduct of a person and the imperative need
to detain him or is based on material which is stale;
28.8. The ground(s) for reaching the requisite
satisfaction is/are such which an individual, with some
degree of rationality and prudence, would consider as
connected with the fact and relevant to the subject-
matter of the inquiry in respect whereof the satisfaction
is to be reached;
28.9. The grounds on which the order of preventive
detention rests are not vague but are precise, pertinent
and relevant which, with sufficient clarity, inform the
detenu the satisfaction for the detention, giving him
the opportunity to make a suitable representation; and
28.10. The timelines, as provided under the law, have
been strictly adhered to.”
18. Considering the aforesaid provisions of law, when
I go through the impugned order of detention, as held earlier,
I find that there is only one ground for detention which is
mentioned above. As mentioned, the ground is backed up by
a fact which is the criminal case and the Station Diaries
lodged against him.
19. So far as the Station Diary Entry is concerned,
from the Counter Affidavit there is nothing to suggest that
those Station Diary Entries have culminated in any criminal
proceedings. Mere Station Diary Entries making some
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allegations and casting aspersions against any person without
the same being converted into any criminal proceedings
under the provisions of the Penal Law, is not a sufficient
ground to reach at a satisfaction that the person needs to be
detained. Further so far as the criminal cases are concerned,
in the impugned order, references have been made, but
surprisingly the said information about the criminal case is
not in its entirety. There are references of four criminal cases
against this petitioner which have been mentioned in para-14
above. Out of those four cases, in three criminal case namely
Rajpur P.S. Case No.5 of 2018, Rajpur P.S. Case No.3 of
2018, Khunti P.S. Case No.107 of 2017, this petitioner has
been acquitted. The judgments of acquittal has been brought
on record and has been annexed along with the writ petition.
The fact of this acquittal has not been denied by learned AAG
on behalf of the State.
20. So far as Gidhour P.S. Case No.57 of 2016 is
concerned, I find that the same is not under the NDPS Act.
The aforesaid P.S. Case is under the provisions of the Indian
Penal Code. In the aforesaid case, this petitioner along with
others were found guilty of offence under Sections 147, 148,
332, 342, 427 and 504 IPC and was sentenced to undergo
rigorous imprisonment by the Trial Court. The Appellate Court
being the Sessions Judge, Chatra in Criminal Appeal No.16 of
2023 modified the judgment and convicted the petitioner
under Section 323, 353 and 149 of the IPC and released him
after due admonition as per Section 3 of Probation of
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Offenders Act.
21. Thus, the impugned order of detention was only
based on half of the information supplied to the Authority
about the pending cases. The material which was before the
Detaining Authority was incomplete. Based on any incomplete
information, no detention order, taking away liberty of a
person, can be passed.
Satisfaction based on irrelevant documents or
incomplete document or satisfaction only on the basis of filing
of charge sheet ignoring acquittal of the detenu of the said
charges is not a proper satisfaction in the eye of law to take
away the liberty of a person by passing a detention order.
22. Further, once the State fails to achieve conviction
under the Penal Laws after a proper and full-fledged trial, by
taking a circuitous method, relying on the same cases in
which the petitioner stands acquitted, cannot pass an order
of detention against the same person who has already been
acquitted. When the petitioner has been acquitted in all the
cases, it cannot be said that he is a habitual offender. It was
the duty of the State to ensure conviction of the petitioner in
those trials, if at all he was involved in the offences but when
the State failed to obtain conviction of the petitioner in the
criminal cases only thereafter has come up with the
impugned detention order.
23. It is true that the detention order has to be based
on some satisfaction. It is also true that the satisfaction is
subjective and this Court exercising jurisdiction under Article
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226 of the Constitution of India cannot sit as an Appellate
Court evaluating the satisfaction of the Detaining Authority
nor can substitute the same, but this Court can very well look
into the sufficiency of the material which was placed before
the Authority to arrive at such satisfaction. On the basis of
some half-baked, incomplete information, if a satisfaction is
arrived at, the same cannot be said to be a logical
satisfaction based on sufficient complete materials. There has
to be complete material to arrive at a satisfaction before
issuing the order of detention. As per para-28 of the
judgment passed in the case of Ameena Begum (supra),
the satisfaction must rest on materials which are of rationally
probative value and the authority must give due regard to
the matters as per the statutory mandate. When the material
which is before the Authority is incomplete, it cannot be said
that the satisfaction is based on complete materials. Before
the Authority, the materials must be complete.
24. The consideration that the petitioner is a habitual
offender is also based on the incomplete information i.e.
Station Diary Entries which did not culminate in any criminal
proceeding. The criminal case also ended in acquittal, thus,
the aforesaid information cannot be the basis to conclude
that the petitioner is a habitual offender.
25. Thus, from what has been held above, I am of the
opinion that the satisfaction as recorded by the Detaining
Authority in this case cannot be said to be a proper
satisfaction which is based on complete information. The
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impugned order does not even whisper about acquittal of this
petitioner in the criminal case in which the petitioner was an
accused under the provisions of NDPS Act, which forms the
sole basis of passing the impugned order.
26. Thus, I hold that the order of detention has been
passed based on materials which are incomplete and the
basis of satisfaction being incomplete, vitiates the entire
process. Further I hold that since there is only one ground of
detention, there is no applicability of Section 6 of The
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988 and the entire order gets vitiated, thus,
cannot be sustained.
27. In view of the above findings arrived at, the
impugned detention order (Number-18/PITNDPS-07/2024-
2453) dated 19.04.2024, passed by respondent No.2, is
hereby quashed and set aside.
28. Accordingly, the instant criminal Writ Petition is
allowed.
29. If the petitioner in the meantime is kept under
detention, he be released forthwith.
30. Pending I.A., if any, stand disposed of.
(ANANDA SEN, J.)
Sri Gautam Kumar Choudhary, J : I agree.
(GAUTAM KUMAR CHOUDHARY, J.)
HIGH COURT OF JHARKHAND, RANCHI
Dated:- 22/08/2024
AFR / Prashant
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