Article 22(5) | Preventive Detention Order Unconstitutional If All Grounds Of Detention Are Not Communicated To Detenu: Orissa High Court

The Orissa High Court has reiterated that a preventive detention order shall be rendered unconstitutional for being violative of Article 22(5) of the Constitution if it does not specify each and every ground based upon which the order of detention was passed against the detenu.While setting aside a preventive detention order issued against the petitioner, who is accused of drugs-peddling, the Division Bench of Justice Sangam Kumar Sahoo and Justice Sibo Sankar Mishra observed –“The petitioner was kept in darkness that the Detaining Authority has arrived at its subjective satisfaction also basing on those five cases and therefore, he could not have asked for the documents of such cases to file the representation. The conduct of the Authority in debarring the petitioner to make an effective representation violates the constitutional safeguards enshrined under Article 22(5) of the Constitution of India.”Referring to the ratio laid down by the Supreme Court in Daktar Mudi -Vrs.- State of West Bengal (1975) the high court said, "...the detention order can be held to be invalid as those five cases which could have influenced the Detaining Authority in arriving at its subjective satisfaction has not been mentioned in the grounds of detention nor communicated to the detenu". The court underscored that as subjective satisfaction "being a condition precedent for the exercise of the power of preventive detention conferred on the executive", the Court can always examine whether the requisite satisfaction is arrived at by the authority. It is not, the court said, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad. Thus in the present case the court held that detaining Authority had recorded its subjective satisfaction not only on the grounds communicated to the petitioner, but there were some other facts and relevant materials before the Authority to arrive at its satisfaction. Case BackgroundThe Government of India in exercise of the power under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 ('the 1988 Act') passed the order of detention on 23.07.2024, detaining the petitioner in order to prevent him from engaging in illicit trafficking of narcotic drugs and psychotropic substances.As the grounds of detention, the sponsoring authority cited three cases against the petitioner involving offences under the Narcotic Drugs & Psychotropic Substances Act, 1985 ('the NDPS Act') and contended that the petitioner is a habitual drug offender whose presence in the society was a threat to the innocent persons of the locality/State/Nation.The aforesaid grounds were communicated to the petitioner in compliance with Article 22(5) of the Constitution and Section 3(3) of the 1988 Act. The Central Government by virtue of Section 9(f) of the 1988 Act, confirmed the said detention on 18.10.2024, directing to detain the petitioner for a period of one year from the date of detention i.e. 31.07.2024.Impugning the detention as well as the confirmation orders, the petitioner filed this criminal writ petition before the High Court citing several procedure infirmities committed by the detaining authorities. During course of the hearing, the Zonal Director, Narcotic Control Bureau, Bhubanewar Zonal Unit filed counter affidavit challenging the contentions made in the writ petition. Apart from justifying the detention order, the authority stated that the petitioner is not only involved in the aforesaid three NDPS cases, rather he is an accused in three others cases under the Excise Act and two cases under the IPC. The counsel appearing for the petitioner vehemently argued that the very order of detention is invalid for it being violative of Article 22(5) of the Constitution since it communicated only partially the grounds of detention to the petitioner and tactfully did not mention about cases under the Excise Act as well as the IPC, which were also taken into consideration while passing the order.He further submitted that the petitioner was enlarged on bail in the three NDPS cases which were enlisted as grounds for detention. Therefore, if the authority had reason to believe that the petitioner was misusing his liberty after coming out in bail, it could have resorted to the recourse available under the ordinary criminal law by applying for cancellation of bail. Rather, it pressed into service the draconian provision under 1988 Act to preventively detain the petitioner for no justified reason.Court's ObservationsThe most vital questions which cropped up for consideration were whether the detaining authority took into account the involvement of the detenu only in three NDPS cases as have been mentioned in the grounds of detention or it also considered his involvement in five other cases under the Excise Act and IPC and if the latter is found to be the case, whether the partial withdrawal of grounds of detention relied upon...

Article 22(5) | Preventive Detention Order Unconstitutional If All Grounds Of Detention Are Not Communicated To Detenu: Orissa High Court

Jyoti Prakash Dutta

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