# Shivbodh Kumar Mishra @ Shiv Bodh Mishra v. Union of India & Ors

- **Citation:** (2023) 5 ILRA 633
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-05
- **Case number:** Habeas Corpus No. 729 of 2022
- **Bench:** Rahul Chaturvedi, Gajendra Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivbodh-kumar-mishra-shiv-bodh-mishra-v-union-of-india-ors-50260
- **Pages:** 15

## Headnote

Criminal Law - Prevention of Illegal Traffic
in
Narcotic
Drug
and
Psychotropic
Substance Act, 1988 - Section 3(1) -
Against detention order dated 04.03.22 -
Constitution of India, 1950 - Articles 22(2)
- On 25.4.22, petitioner had gone to
attend date fixed in trial case in District
Court, illegally arrested - The police
brought
him
to
Police
Station
and
thereafter admitted him to District Jail on
27.4.22, in compliance of detention order
passed - No other case was registered
except two cases in which he was arrested
but bailed out - Argument, report of
sponsoring authority was never shared
with him as to when and on what date the
detaining authority took a decision of
preventive detention - Held, non supply of
material
by
sponsoring
authority,
petitioner was not in a position to give
representation
- No direct 'live and
proximate
link'
between
action
of
petitioner and detention order - Not a
single
word
has
been
whispered
in
detention order that even after being
bailed out was regularly in touch with his
sources or mobilising them -Impugned
order set-aside.

Writ Petition Allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,877 of 51,469. This is a partial read: ask again with offset=39877 for what follows._

5 All. Shivbodh Kumar Mishra @ Shiv Bodh Mishra Vs. Union of India & Ors.
633
has also considered the legal proposition
and thereafter has exercised its power
under section 319 Cr.P.C. This court has to
judge the correctness, legality and propriety
of the impugned order.

13. The learned trial court has
narrated the entire facts, analysed all the
materials.
Being
satisfied
about
the
complicity
of
the
revisionists
has
summoned them. There is no illegality or
infirmity in the impugned order. it needs no
interference.

14. Accordingly, the revision is
devoid of merits and is hereby dismissed.
----------
(2023) 5 ILRA 633
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.05.2023

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.
THE HON'BLE GAJENDRA KUMAR, J.

Habeas Corpus No. 729 of 2022

Shivbodh Kumar Mishra @ Shiv Bodh
Mishra ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vimlendu Tripathi

Counsel for the Respondents:
A.S.G.I., G.A., Sri Krishna Agarawal

Criminal Law - Prevention of Illegal Traffic
in
Narcotic
Drug
and
Psychotropic
Substance Act, 1988 - Section 3(1) -
Against detention order dated 04.03.22 -
Constitution of India, 1950 - Articles 22(2)
- On 25.4.22, petitioner had gone to
attend date fixed in trial case in District
Court, illegally arrested - The police
brought
him
to
Police
Station
and
thereafter admitted him to District Jail on
27.4.22, in compliance of detention order
passed - No other case was registered
except two cases in which he was arrested
but bailed out - Argument, report of
sponsoring authority was never shared
with him as to when and on what date the
detaining authority took a decision of
preventive detention - Held, non supply of
material
by
sponsoring
authority,
petitioner was not in a position to give
representation
- No direct 'live and
proximate
link'
between
action
of
petitioner and detention order - Not a
single
word
has
been
whispered
in
detention order that even after being
bailed out was regularly in touch with his
sources or mobilising them -Impugned
order set-aside.

Writ Petition Allowed. (E-13)

List of Cases cited:

1. Sushanta Kumar Banik Vs St. of Tripura &
ors., 2022 LiveLaw (SC) 813

2. Ashok Kumar Vs Delhi Administrative and ors,
(1982) 2 SCC 403

3. Ahmedhussain Shaikhhussain @ Ahmed Kalio
Vs Commissioner of Police, Ahmedabad & anr.,
(1989) 4 Supreme Court Cases 751

4. Heisnam Chaoba Singh Vs The U.O.I.& ors.,
2021 SCC Online Cal 2691

(Delivered by Hon'ble Rahul Chaturvedi, J.)

1. Heard Shri Vimlendu Tripathi,
learned counsel for the petitioner; Shri
Krishna Agarawal, learned counsel for
respondent nos.1, 2 & 3 and also learned
Additional
Government
Advocate
for
respondent nos.4 and 5. We have gone
through the entire materials brought before
us.

2. Pleadings have been exchanged
between the parties and the matter is ripe
634 INDIAN LAW REPORTS ALLAHABAD SERIES
for final submission by the respective
learned counsels.

3. Instant Habeas Corpus Writ
Petition by above named petitioner, who is
invoking
constitutional
remedy
under
Article 226 of the Constitution of India,
whereby the petitioner Shivbodh Kumar
Mishra @ Shiv Bodh Mishra has sought the
following prayer :-

"issue a Writ of Habeas Corpus
commanding all the respondents to release the
petitioner from his illegal detention in pursuance
of the detention order dated 04.03.2022
(Annexure No.1) passed by respondent no.3
under section 3(1) of the PITNDPS Act, 1988
and to set the petitioner at liberty forthwith, and
may further be pleased to quash the impugned
order dated 04.03.2022 passed by
the
respondent no.3 of the writ petition."

4. Thus, from the above prayer, it is
clear that petitioner has sought a command
and direction from this Court to release him
from illegal detention pursuant to order
passed by the respondent no.3 dated
04.03.2022 u/s 3(1) of "Prevention of
Illegal Traffic in Narcotic Drug and
Psychotropic Substance Act, 1988" (for the
sake of brevity hereinafter referred to as
'PITNDPS Act') and the petitioner may be
set at liberty forthwith after quashing the
order impugned dated 04.03.2022.

FACTUAL BACKGROUND :-

5. Before entering into the merits of
the case, it is imperative to have a bird's
eye view to the controversy involved and
the
alleged
criminal
antecedents
of
petitioner, which are as follows :-

(I) On 04.01.2016 the Zonal
Director, NCB Lucknow after receiving a
tip from his sources that 4-5 persons
coming from Bihar on a truck, bearing
registration
No.HR-55-J-2062
and
a
Mahindra Scorpio car bearing registration
No.BR-03-P-8311, are likely to deliver a
consignment of illegal 'Ganja' to the
petitioner near Nawabganj Bypass situated
at Allahabad Lucknow Road around 01.00
in the day on 04.01.2016. On receiving this
information, a team consisting of NCB
officials intercepted the aforesaid vehicle
and recovered 312.045 kgs of Ganja. In this
operation total 8 persons were nabbed,
though the petitioner was sitting in
Mahindra Scorpio Car No.BR-03-P-8311.
Accordingly, a criminal case was filed by
NCB Lucknow having Criminal Case
No.42 of 2016, u/s 8, 20, 29 of N.D.P.S.
Act before the District & Session Judge,
Allahabad on 29.6.2016.

It is contended by learned counsel
for petitioner that after great deal and
efforts, the petitioner was eventually let
loose on bail by this Court vide order dated
05.03.2020 while allowing his Third Bail
Application No.3604 of 2020 and thereafter
the
petitioner
was
bailed
out
after
completing
the
necessary
formalities,
furnishing the bail bonds and sureties.

(II) After being released on bail,
the petitioner started attending the court's
proceeding and co-operating with the trial
of Crl. Case No.42 of 2016. On 25.10.2020
he was again apprehended along with three
other persons while travelling on a Swift
Desire car along with Surajpal Soni, Vijay
Kesarwani and Sanjay Kesarwani. After
being searched out, a total quantity of 170
kgs of Ganja was recovered. In respect of
this incident, an FIR was lodged on
25.10.2020 as Case Crime No.177 of 2020,
u/s 8 & 20 of NDPS Act, Police Station
Mahewaghat, District Kaushambi.

It is interesting to mention here
that, petitioner again preferred a Bail
5 All. Shivbodh Kumar Mishra @ Shiv Bodh Mishra Vs. Union of India & Ors.
635
Application No.83 of 2020 in aforesaid
case crime which was allowed by the
Additional Sessions Judge (POCSO Act),
Kaushambi vide order dated 18.12.2020.

6. These aforementioned are only two
cases in which the petitioner was arrested
and later on was bailed out on 05.03.2020
and 18.12.2020 respectively. Except above
mentioned two cases, there is no other
cases to the credit of petitioner.

7. It has been strenuously argued by
learned counsel for the petitioner that after
being released on bail vide order dated
18.12.2020,
the
petitioner
has
never
indulged into any offence, much less than
the cases of NDPS Act, till he was
bombarded by impugned detention order
dated 04.03.2022, signed by Shri Ravi
Pratap Singh, Joint Secretary, Government
of India, Ministry of Finance, Department
of Revenue (PITNDPS Unit) u/s 3(1) of the
PITNDPS Act, 1988.

8. On this score, Shri Vimlendu
Tripathi, learned counsel has hammered
his submission by making a mention that
except aforementioned two cases in
which the petitioner was bailed out lastly
on 18.12.2020 till the impugned order is
passed on 04.03.2022, there was no
material
with
respondent
authorities
which could justify their conduct for
proceeding against the petitioner under
the PITNDPS Act. It is further contended
by learned counsel that the petitioner is
rendering fullest cooperation before the
trial court, but for the reasons best know
to the respondent authorities, off late at
unknown time and date they have
proceeded in a clandestine fashion in
order to book the petitioner under the
aforesaid preventive Act. There is no
justification on the part of respondent
authorities to justify their instant action
under PITNDPS Act.

9. In para-12 of the petition, it has
been mentioned that on 25.4.2022 when
the petitioner had gone to attend the date
fixed in aforementioned case in District
Court Allahabad, where he was illegally
arrested
from
the
District
Court
Allahabad itself. The police brought the
petitioner to Police Station Saraiakil,
District
Kaushambi
and
thereafter
admitted him to District Jail, Lucknow in
the night of 27.4.2022.

10. On this factual background,
learned counsel for the petitioner has
contended that a person who is being
arrested on 25.4.2022, was booked to
District Jail, Lucknow in the night of
27.4.2022 after two days of his alleged
arrest, that too at District Jail, Lucknow.
This is a gross violation of Section-4 of
PITNDPS Act, which speaks that a
detention may be executed at any place in
India in the manner provided for the
execution of warrant of arrest under the
Code of Criminal Procedure, 1973. Thus,
there is no justification coming forward
about the delay of two days after the factual
arrest of petitioner and not producing him
before the concerned Magistrate within 24
hours and thereafter dumping him to the
District Prison at Lucknow.

11. Yet another issue raised by
learned counsel for the petitioner, is that
the Joint Secretary, Government of India,
specially empowered u/s 3(1) of PITNDPS
Act, has passed the order for detaining the
petitioner illegally on 4.3.2022 and keep
him in District Jail, Lucknow. This order of
detention is a blanket and baseless, without
containing any ground of detention which
was served upon the petitioner only after
636 INDIAN LAW REPORTS ALLAHABAD SERIES
seven weeks i.e. on 27.4.2022 for the
reasons best know to the authorities
concerned.

12. As mentioned above, the arrest
was effected pursuant to the order dated
4.3.2022 passed by the Joint Secretary,
Government of India; but as late as on
27.4.2022 a copy of detention order along
with the 'so-called' grounds of detention
were served upon the petitioner. Submitted
by counsel that this detention order dated
4.3.2022 came out of blue and petitioner
remain clueless as to what went wrong after
18.12.2020, when he was bailed out. The
petitioner could not think in his wildest
dream that the authorities were preparing
the papers/documents to book him under
PITNDPS Act in a clandestine way.

13. As mentioned above, after the
release of petitioner on bail on 18.12.2020,
there is not a single case to the credit of
petitioner. Thus, factually speaking, from the
date when the petitioner was released on bail
i.e. 18.12.2020 up to the date of passing of
impugned detention order i.e. 04.03.2022,
there is no material on record to justify the
respondent authorities to initiate preventive
proceeding under the PITNDPS Act, that too,
after delay of almost one year and four
months. On this premise, it has been argued
by learned counsel for the petitioner that there
is no near proximity or legal justification to
initiate the present proceeding under the Act
of 46 of 1988. It is further asserted by the
learned counsel for the petitioner that after
the lapse of considerable time, all of a sudden
the respondent authorities woke up from
slumber and on 4.3.2022 pasted the detention
order u/s 3(1) of PITNDPS Act on the back
of the petitioner.

14. Learned counsel for the petitioner
has drawn attention of the Court to Ground
No.2, on that basis the detention order
F.No.U-11011/05/2022-PITNDPS
dated
4th March, 2022 has been issued against
the petitioner. For ready reference ground
no.2 of the detention order is being
reproduced as under :

"2. There are intelligence inputs
that you i.e. Shri Shivbodh Kumar Mishra
@ Shiv Bodh Mishra are again indulging
in trafficking of narcotics drugs after you
were released from the jail. It clearly
shows that you are a habitual offender and
not going to mend your ways but continue
to be in drug trafficking. You have deep
involvement and have continued propensity
for
trafficking
of
narcotics
and
Psychotropic Substances."

15. After a plain reading of
aforementioned ground, learned counsel for
the petitioner hammered his submission,
that simply after referring to the previous
credentials of two cases against the
petitioner, the detention order has been
passed. This ground contains a lots of gray
areas which has been exploited against the
petitioner for curtailing his rights of
personal
liberties
and
his
freedom,
guaranteed in Part-III of the Constitution of
India.
The
ground
that
'his
deep
involvement and continued propensity for
trafficking of narcotics and Psychotropic
Substances' goes haywire, when there is no
criminal credentials of the petitioner, after
his release on bail i.e. 18.12.2020. The
provisions of Section 3(1) of PITNDPS Act
are not only words but it carries deep
rooted significance. The satisfaction of the
authorities must be based on concrete and
tangible grounds and his satisfaction must
be subjective satisfaction. Only using the
expression "satisfaction" in the detention
order looses its significance, if it is not
based on tangible evidence or there is no
5 All. Shivbodh Kumar Mishra @ Shiv Bodh Mishra Vs. Union of India & Ors.
637
proximity or live link between the alleged
offence of the petitioner and the preventive
detention order.

16. It is next contended by learned
counsel for the petitioner that this ground
of detention is not accompanied by the
alleged report of sponsoring authority i.e.
NCB, Lucknow, which forms the very
basis of the illegal detention of petitioner,
which has been knitted and likely to go to
shambles. Yet another significant aspect of
the issue is the alleged ground of detention,
it is supposed to be based on the complete
material relied by detaining authority. If the
very basis of detention is missing, relying
upon which the sponsoring authority passed
an order of detention and allegedly
furnishes the 'so called' grounds of
detention, then to expect that the petitioner
would give an effective representation, is
simply a dream and would be stark contrast
of basic tenets of Natural Justice. However,
after guessing the so-called grounds, a
representation was got prepared by the
petitioner relying upon the limited material in
the shape of ground and same was placed on
13.5.2022
to
the
authority
concerned.
Interestingly, said representation of the
petitioner was rejected by respondent no.2
and was duly communicated by means of a
memorandum dated 3.6.2022, whereby the
petitioner
was
informed
that
his
representation dated 13.5.2022 was outrightly
rejected by the detaining authority without
assigning any good reason for the same.

17. On 5.6.2022, a copy of order dated
3.6.2022 issued by the subordinate of
respondent no.1, informing the petitioner that
his representation has been rejected by the
detaining authority vide order dated 3.6.2022.

18. On 4.7.2022 the petitioner was
informed that the date of hearing fixed
before the Advisory Board pursuant to
Section 9 (b) of PITNDPS Act was
7.7.2020 at 3.00 p.m., whereby the
petitioner was produced and the matter was
heard, but on 18.7.2022 he was informed
that vide order dated 15.7.2022 the
Advisory Board has opined to the effect
that there is sufficient cause for detaining
of the petitioner, and in fact the Advisory
Board has confirmed the order of detention
for a period of one year from the date of
detention dated 27.4.2022.

19. By way of writ petition it was
argued by learned counsel for the petitioner
that
sponsoring
authority
i.e.
NCB
Lucknow no report in that regard was
enclosed with the grounds of detention,
hence, the petitioner was complete at loss
as how and when the detaining authority
came into the knowledge of the fact in the
case by which mode either orally or writing
and
the
material
provided
by
the
sponsoring authority to the detaining
authority to initiate a proceeding of
preventive detention of petitioner under
PITNDPS Act, 1988. The report of the
sponsoring authority was never shared with
the petitioner as to when and on what date
the detaining authority took a decision of
preventive detention of petitioner. All these
are the grey areas which touches the root of
the controversy in which the petitioner
finds himself at complete loss and an
effective opportunity of hearing to him. In
addition to this, the applicant has unable to
demonstrate that there is no live link
between his two antecedents and the
proposed/ impugned preventive detention.

20. The Court has an occasion to
peruse the grounds of detention dated
4.3.2022 (Annexure-2 to the petition) in
which it finds reference to an earlier
credentials of the petitioner as shared by
638 INDIAN LAW REPORTS ALLAHABAD SERIES
NCB, Lucknow Zonal Unit and its pending
proceedings.
The
relevant
grounds
mentioned in the grounds of detention
dated 4.3.2022 are as under :

"2. There are intelligence inputs
that you i.e. Shri Shivbodh Kumar Mishra
@ Shiv Bodh Mishra are again indulging
in trafficking of narcotics drugs after you
were released from the jail. It clearly
shows that you are a habitual offender and
not going to mend your ways but continue
to be in drug trafficking. You have deep
involvement and have continued propensity
for
trafficking
of
narcotics
and
Psychotropic Substances.

3. In view of the facts mentioned
above, I have no hesitation in arriving at
the conclusion that you i.e. Shri Shivbodh
Kumar Mishra @ Shiv Bodh Mishra
through your above acts engaged yourself
in prejudicial activities of illicit traffic of
narcotics and psychotropic substances,
which poses serious threat to the health
and welfare not to the citizens of this
country but to every citizen in the world,
besides deleterious effect on the national
economy. The offences committed by you
i.e. Shri Shivbodh Kumar Mishra @ Shiv
Bodh Mishra are so interlinked and
continuous in character and are of such
nature that these affect security and health
of the nation. The grievous nature and
gravity of offences committed by you i.e.
Shri Shivbodh Kumar Mishra @ Shiv Bodh
Mishra in well-planned manner clearly
establishes your continued propensity and
inclination to engage in such acts of
prejudicial activities. Considering the facts
of the prsent case mentioned in foregoing
paras, I have no hesitation in arriving at
the
conclusion
that
there
is
ample
opportunity for Shri Shivbodh Kumar
Mishra @ Shiv Bodh Mishra i.e. you to
repeat the above serious prejudicial acts.
Hence, I am satisfied that in the meantime
you i.e. Shri Shivbodh Kumar Mishra @
Shiv Bodh Mishra should be immobilised
and there is a need to prevent you i.e. Shri
Shivbodh Kumar Mishra @ Shiv Bodh
Mishra from engaging in such illicit traffic
of
narcotic
drug
and
psychotropic
substances in future by detention under
Section 3(1) of the Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic
Substances (PITNDPS) Act, 1988.

4. In view of the overwhelming
evidences discussed in foregoing paras,
detailing how you i.e. Shri Shivbodh Kumar
Mishra @ Shiv Bodh Mishra have indulged
in organising the illicit trafficking of
Narcotic
Drugs
and
Psychotropic
substances as well as have a high
propensity to engage in this illicit activity,
it is conclusively felt that if you are not
detained
under
section
3(1)
of
the
PITNDPS Act, 1988, you i.e. Shri Shivbodh
Kumar Mishra @ Shiv Bodh Mishra would
continue
to
so
engage
yourself
in
possession, purchase, sale, transportation,
storage, use of narcotics and psychotropic
substances illegally and handling the above
activities, organizing directly in the above
activities and conspiring in furtherance of
above activities which amount to illicit
trafficking of psychotropic substances under
section 2(e) of the Prevention of Illicit Traffic
in
Narcotic
Drugs
and
Psychotropic
Substances (PITNDPS) Act, 1988 in future
also. I am, therefore, satisfied that there is
full justification to detain you i.e. Shri
Shivbodh Kumar Mishra @ Shiv Bodh
Mishra under section 3(1) of the Prevention
of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988 with a
view to preventing you i.e. Shri Shiv Bodh
Kumar Mishra @ Shiv Bodh Mishra from
engaging in above illicit traffic of narcotics
and psychotropic substances specified under
scheduled to the NDPS Act, 1985.
5 All. Shivbodh Kumar Mishra @ Shiv Bodh Mishra Vs. Union of India & Ors.
639

5. Considering the magnitude of
the operation, the chronicle sequence of
events, the well-organized manner in which
such pre-judicial activities have been
carried on, the nature and gravity of the
offence,
the
consequential
extent
of
investigation
involved
including
scanning/examination of papers, formation
of grounds, I am satisfied that the nexus
between the dates of incident and passing
of the Detention Order as well as object of
your detention has been well maintained.

6. I consider it to be against
public interest to disclose the source of
information at the relevant paragraphs of
the grounds of detention above."

21. On a careful perusal of these
grounds, of which the sources kept in secret
under the garb of "public interest", it has
been argued by the learned counsel for
petitioner that when there is no criminal
activities after his release on bail from
18.12.2022, then instant proceeding under
PITNDPS Act, 1988 is nothing but a vague
justification of an old proverb "give a dog
bad name and hang him". The only sin is
that the petitioner is facing two criminal
cases of NDPS Act and he is facing the trial
for the same. The grounds, could be safely
termed as using of hyperbolic expressions
and high sounding words, there is virtually
nothing against the petitioner to brand him
habitual offender.

22. Per contra, Shri Krishna Agrawal,
learned counsel for the respondent no.1, 2
and 3 has filed detailed counter affidavit,
sworn by Shri Bhagwan Sahai Meena,
Under
Secretary,
PITNDPS Devision,
Department of Revenue, Ministry of
Finance, Government of India, New Delhi.
In paragraph 4 of the counter affidavit it is
mentioned that the records pertaining to the
present case and after consulting the
Sponsoring Authority i.e. NCB Lucknow
Zonal Unit this counter affidavit is being
filed. Thus it is evident that the sponsoring
authority and detaining authority were hand
in glove with each other.

It clearly indicates that the
deponent of this case was well aware of the
proceedings initiated and at the end of
NCB, Lucknow Zonal Unit it was further
mentioned in paragraph 7 of the counter
affidavit that the Detaining Authority has
relied
upon
the
documents/material
evidences supplied by the sponsoring
authority, after arriving at their subjective
satisfaction on 4.3.2022 a letter was issued
under Section 3(1) of PITNDPS Act by
Ravi
Pratap
Singh,
Joint
Secretary,
Government of India directing him to
detain in the District Prison Lucknow U.P.
in order to prevent the petitioner from
engaging in illicit traffic in narcotic drugs and
psychotropic
substances.
The
aforesaid
detention order along with grounds of
detention, relied upon the documents and list
of documents were served upon the petitioner
physically within prescribed period on
27.4.2922 at District Prison Lucknow where
petitioner was detained pursuant to the
detention order passed by the competent
authorities and its acknowledgment was
received in the Ministry on 29.4.2022. On
5.5.2022
the
U.P.
Advisory
Board
(Detentions) have heard the petitioner in
person, the Sponsoring Authority and the
officers of the Ministry and had opined that
"there is sufficient cause for the detention of
the detenue". Based on the opinion of the
Advisory Board the Ministry confirmed the
detention order vide order dated 15.7.2022
fixing the period of detention for one year
from the date of detention w.e.f. 27.4.2022.

23. In paragraph 8 of the counter
affidavit it was submitted that the petitioner
640 INDIAN LAW REPORTS ALLAHABAD SERIES
was detained by P.S.- Mahewaghat on
25.4.2022 in respect of execution of
detention order dated 4.3.2022. Thereafter,
the aforesaid detention order along with
grounds
of
detention
were
served
physically to the petitioner on 27.4.2022.

This is the own admission of the
deponent that after two days of his alleged
illegal detention its material was furnished
to petitioner. During this period, petitioner
was not produced before any Magistrate as
contemplated under Article 22(2) of the
Constitution of India.

24. In paragraph 13 of the counter
affidavit, the deponent of the counter
affidavit
states
that
the
competent
authorities on the basis of the material
supplied by the sponsoring authority and
applying mind and also recording the
subjective satisfaction has passed the order
for detaining the petitioner as a preventive
measure. Since the petitioner was not
available at his house and upon the
knowledge of aforesaid order through his
family members, he absconded and the
local police arrested him and thereafter
booked him to District Prison Lucknow in
compliance of the detention order passed
by respondent no.3.

25. In paragraph 17 of the counter
affidavit it has been alleged that the
petitioner is a habitual offender and is
continuously involved in trafficking of
Ganja and thus in order to protect the
public at large from the said illegal
trafficking in future the detention order was
passed. However, in paragraph b & c of the
counter affidavit, it has been mentioned
that since the petitioner was not available at
his home and he sneaked away, but
eventually nabbed by P.S. Mahewaghat on
25.4.20222 and was served with the
grounds of detention and other allied
documents on 27.4.2022.

26. In paragraph (i) it has been clearly
mentioned that the work schedule of
Detaining Authority need not to be
disclosed and it has been alleged that
whatever time has been consumed was for
the purposes of better verification, scrutiny
and examination of material placed before
the Detaining Authority to record his
subjective
satisfaction.
The
detaining
authority acted promptly and vigilantly and
issued order of detention after arriving at
his subjective satisfaction.

27. On these pleadings, learned
counsel for the petitioner submits that after
being released on bail the petitioner was
duly cooperating with the process of law
and pursuing his family responsibilities
while residing at his permanent place as
mentioned above. He never sneaked away or
absconded as alleged in the counter affidavit.
As mentioned above, he was very much
present during 4.3.2022 to 25.4.2022 at his
residence, but the authorities were sleeping
over the matter for seven good weeks and
woke up and pasted the impugned detention
order on 25.4.2022. On 25/4/2022 the
petitioner visited District Court Allahabad for
attending the date fixed in above noted case
crime no.42 of 2016 and soon after attending
the court proceeding he was arrested pursuant
to the detention order under Section 3(1) of
PITNDPS Act and was taken away to Police
Station Saraiakil, District Kaushambi, where
he was detained and thereafter he was
transported to District Jail Lucknow in the
night of order dated 26.4.2022. He was never
produced before any competent Magistrate
during this two days which is violation of the
provisions provided for the execution of
warrant of arrest under the Criminal
Procedure Code.
5 All. Shivbodh Kumar Mishra @ Shiv Bodh Mishra Vs. Union of India & Ors.
641

At the cost of repetition it was
argued that the detention order was never
appended with or contained the alleged
report of sponsoring authority i.e. NCB
Lucknow or the material relied upon them
for their alleged subjective satisfaction.
Respondent no.3 in his point no.6 of the
grounds, kept the source of information
under his sleeves and did not disclose the
same. On account of non supply of
complete material the petitioner found
himself unable to represent himself against
the impugned detention order, however
with limited means and anticipating those
grounds,
the
petitioner
got
one
representation prepared and submitted the
same on 13.5.2022. This is the most crucial
aspect of the issue that the petitioner is not
in knowledge as to how and when detaining
authority has come to knowledge of the
material relied upon by the sponsoring
authority and the material available on the
record, by which the sponsoring allegedly
formed their subjective satisfaction.

LEGAL DISCUSSION :

28. After hearing the submissions
advanced
by
contesting
parties
and
perusing the pleadings/grounds taken by
them, the Court finds it proper and
imperative to reproduce the 'Statement of
Object and Reasons' for enactment of 'The
Prevention of Illegal Traffick in Narcotic
Drugs and Psychotropic Substances Act,
1988' which reads thus :

"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 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. Accordingly, the President
promulgated the Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic
Substances Ordinance, 1988 on 4th July,
1988."

The arguments of respective
counsels have to be tested in the light of
abovementioned object and reasons of
enactment. Any action on the part of
authorities namely sponsoring authority or
detaining authority or Advisory Board has
to be in consonance with the aforesaid
objective and reasons and has to be strictly
adhered
because
it
relates
to
the
individual's own freedom, life and liberty,
which cannot be negotiated.

29. Learned counsel for the petitioner
in order to buttress his contentions has
relied upon the Hon'ble Apex Court's
decision in Sushanta Kumar Banik vs.
State of Tripura and others, 2022 LiveLaw
(SC) 813, whereby the Hon'ble Apex Court
642 INDIAN LAW REPORTS ALLAHABAD SERIES
have allowed the appeal on the following
grounds :

(I) Delay in passing the order of
detention from the date of proposal thereby
snapping "live and proximate link"
between the prejudicial activities and the
purpose of detention and failure on the part
of detaining authority in explaining such
delay in any manner.

(II)
The
detaining
authority
remain oblivion of the fact that both the
criminal
cases
relied
upon
by
the
sponsoring authority/detaining authority
for the purposes of passing the order of
detention
the
appellant-detainue
was
ordered to be released on bail by the
special court. The detaining authority also
remain oblivion as this material and vital
fact of the detainue being released on bail
in both the cases was suppressed, rather
not brought on notice of detaining
authority by the sponsoring authority at the
time of proposal to pass appropriate order
for preventive detention.

30. In this regard learned counsel for
the petitioner submits that taking the
strength from "live and proximate link
between the prejudicial activities and
purpose of detention" it has been contended
by the counsel that there are only two cases
to the credit of petitioner and in both of
these cases he has been bailed out on
5.3.2020 and 18.12.2020 respectively.
Since thereafter not a single case to the
credit of the petitioner. The Court wonders
that how the authorities would justify their
detention order unless they would depict
that there is 'live and proximate link'
between the act done and passing of the
alleged detention order. No doubt, the
petitioner is facing prosecution in both the
cases and the alleged detention order was
passed on 4.3.2022 after lapse of about one
year and 3-4 months. During this period,
not a single case has been registered against
the petitioner either in any offences of
I.P.C. or NDPS Act has been registered
against
the
petitioner.
It
is
fuhrers
submitted that there are only two cases
against the petitioner for which he is facing
prosecution and in the absence of any 'live
and proximate link' between the alleged
release of petitioner on bail in December,
2020 till passing of detention order on
4.3.2022, makes entire proceeding vitiated
on this score. The sponsoring authority
must justify that the petitioner is offender
and as soon as he would come out in the
affinity of his accomplices he would again
indulge into the same activities. In the
grounds of detention, except a bald
averment that Shivbodh Kumar Mishra @
Shivbodh Mishra would again indulged
into the trafficking of narcotics drugs if he
would be released from jail, is nothing but
a device crafted by the sponsoring authority
to dump a person in jail for ever. It is
further mentioned in the detention order the
detaining authority has not whispered about
the source of information in the light of
public interest give a free hand to the
sponsoring/ detaining authority to pass any
order of detention. At the cost of repetition,
no doubt the petitioner was indulged into
the two cases is NDPS Act but this would
not going to justify the pasting of
preventive detention order in the backdrop
of aforesaid two cases. There has to be a
concrete tangible material on record so as
to justify the aforesaid detention order.

31. In the instant case, the petitioner
has not been provided any document
relying upon the sponsoring authority has
prepared his report or as to when the
sponsoring
authorities
have
started
preparing the report for forwarding the
same to the detaining authority. All these
5 All. Shivbodh Kumar Mishra @ Shiv Bodh Mishra Vs. Union of India & Ors.
643
vital aspects of the issue remain under the
carpet of secrecy which is prejudicial to the
interest of petitioner. It is binding and
statutory duty to share all documents
material of which the sponsoring authority
has firmed opinion to proceed against the
petitioner under the PITNDPS Act, without
which the entire detention order gets
vitiated.

32. As mentioned above, in Ashok
Kumar vs. Delhi Administrative and ors,
(1982) 2 SCC 403 the Hon'ble Supreme
Court
has
observed
that
preventive
detention is devised to afford protection to
society. The object is not to punish a man
for having done something but to intercept
before he does it and to prevent him from
doing.

33. In view of above object of the
preventive detention, it becomes very
imperative on the part of the detaining
authority
as
well
as
the
executing
authorities to remain vigilant and keep their
eyes skinned but not to turn a blind eye in
passing the detention order at the earliest
from the date of the proposal and executing
the detention order because any indifferent
attitude on the part of the detaining
authority or executing authority would
defeat the very purpose of the preventive
action and turn the detention order as a
dead
letter
and
frustrate
the
entire
proceedings.

34. The adverse effect of delay in
arresting a detenu has been examined by
this Court in a series of decisions and this
Court has laid down the rule in clear terms
that an unreasonable and unexplained delay
in securing a detenu and detaining him
vitiates the detention order. In the decisions
we shall refer hereinafter, there was a delay
in arresting the detenu after the date of
passing of the order of detention. However,
the same principles would apply even in the
case of delay in passing the order of
detention from the date of the proposal.
The common underlying principle in both
situations would be the "live & proximate
link" between the grounds of detention &
the avowed purpose of detention.

35. In the case of Sushanta Kumar
Banik (supra) the Hon'ble Apex Court has
also held as under :

"18.
Chinnappa
Reddy,
J.
speaking for the Bench in Bhanwarlal
Ganeshmalji v. State of Tamil Nadu, (1979)
1 SCC 465, has explained as follow:

"It is further true that there must
be a "live and proximate link" between the
grounds of detention alleged by the
detaining
authority
and
the
avowed
purpose of detention namely the prevention
of smuggling activities. We may in
appropriate cases assume that the link is
"snapped" if there is a long and
unexplained delay between the date of the
order of detention and the arrest of the
detenu. In such a case, we may strike down
an order of detention unless the grounds
indicate a fresh application of the mind of
the detaining authority to the new situation
and the changed circumstances. But where
the delay is not only adequately explained
but is found to be the result of the
recalcitrant or refractory conduct of the
detenu in evading arrest, there is warrant
to consider the "link" not snapped but
strengthened."

 (Emphasis supplied)

19. Sabyasachi Mukharji, J. (as
the learned Chief Justice then was) in
Shafiq Ahmed v. District Magistrate,
Meerut and Ors., (1989) 4 SCC 556,
having regard to the fact that there was a
delay of two and a half months in detaining
644 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner (detenu) therein, pursuant to
the order of detention has concluded that
"there
was
undue delay,
delay
not
commensurate with the facts situation in
that case and the conduct of the respondent
authorities betrayed that there was no real
and genuine apprehension that the detenu
was likely to act in any manner prejudicial
to public order. The order, therefore is bad
and must go". However, the learned Judge
observed that "whether the delay was
unreasonable depends on the facts and
circumstances of each case."

20. It is manifestly clear from a
conspectus of the above decisions of this
Court, that the underlying principle is that
if there is unreasonable delay between the
date of the order of detention & actual
arrest of the detenu and in the same
manner from the date of the proposal and
passing of the order of detention, such
delay unless satisfactorily explained throws
a considerable doubt on the genuineness of
the requisite subjective satisfaction of the
detaining authority in passing the detention
order
and
consequently
render
the
detention order bad and invalid because
the "live and proximate link" between the
grounds of detention and the purpose of
detention is snapped in arresting the
detenu. A question whether the delay is
unreasonable
and
stands
unexplained
depends on the facts and circumstances of
each case."

36.

In
yet
another
case
of
Ahmedhussain Shaikhhussain @ Ahmed
Kalio
VS.
Commissioner
of
Police,
Ahmedabad
and
another,
(1989)
4
Supreme Court Cases 751, the Hon'ble
Apex Court has observed thus :

"10. We may now refer to two
decisions of this Court under the present
Act. In the case of Abdul Razak Abdul
Wahib
Sheikh
vs.
Shri
S.N.
Sinha,
'Commissioner of Police, Ahmedabad &
Anr.,(1989) 2 SCC 222; 1989 SCC (Cri)
326, it has been held that the detaining
authority must disclose in a case where the
detenu is already in jail that there is cogent
and relevant material constituting fresh
facts to necessitate making of an order of
detention.