Full Judgment Text
2025 INSC 321
Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs. 4872-4873 OF 2024
Mortuza Hussain Choudhary ….. Appellant
Versus
The State of Nagaland and others ….. Respondents
J U D G M E N T
SANJAY KUMAR, J
Ashraf Hussain Choudhary and his wife, Adaliu Chawang,
were subjected to preventive detention under Section 3(1) of
the Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988 (for brevity, ‘the Act of
1988’), vide separate orders dated 30.05.2024 passed by the
Special Secretary, Home Department, Government of
Nagaland. Challenge thereto by Mortuza Hussain Choudhary,
the brother of Ashraf Hussain Choudhary, by way of WP (Crl.)
Signature Not Verified
Nos. 10 and 11 of 2024 came to naught when the Gauhati High
Digitally signed by
babita pandey
Date: 2025.03.05
16:28:16 IST
Reason:
Court dismissed both the writ petitions on 29.08.2024. Hence,
these appeals.
1
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.
3. We may briefly note the admitted facts in the cases on hand: Three
individuals, viz., Nehkhoi Guite (the driver of the vehicle) and two ladies,
Hoinu @ Vahboi and Chinneilhing Haokip @ Neopi, were apprehended by
the police on the night of 05.04.2024 in Khuzama village area while
2
travelling in a Mahindra TUV Vehicle. Upon search of the vehicle, 20 soap
cases of Heroin were found concealed in the gear lever cover. The seized
Heroin weighed 239 grams. Thereupon, Suo Motu FIR No. 005/2024 was
registered on 06.04.2024 on the file of the Narcotics PS under Sections
22(b) and 60 of the Narcotic Drugs and Psychotropic Substances Act,
1985. Upon interrogation, Chinneilhing Haokip @ Neopi implicated Adaliu
Chawang and stated that she had supplied Heroin earlier also to Adaliu
Chawang and received money. Ashraf Hussain Choudhary and Adaliu
Chawang were arrested at Dimapur on 12.04.2024 and were remanded to
custody.
4. While so, the Investigating Officer of the case submitted proposals for
the preventive detention of Ashraf Hussain Choudhary and Adaliu
Chawang. These proposals were forwarded to the Special Secretary, Home
Department, Government of Nagaland, by the Additional Director General
of Police (Administration), Nagaland, under letters dated 14.05.2024 and
17.05.2024. Acting thereupon, the Special Secretary, Home Department,
Government of Nagaland, issued separate orders dated 30.05.2024, in
exercise of power under Section 3(1) of the Act of 1988, directing that
Ashraf Hussain Choudhary and Adaliu Chawang be detained and kept in
the District Jail, Dimapur, for an initial period of 3 months. Both the detenus
3
submitted individual representations dated 12.06.2024 seeking revocation
of their detention. Therein, both of them asserted that they had been
served copies of the detention orders in a language they were not familiar
with and that no copy of the detention order was served to them in a
language that they understood. They also pointed out that they were
already in custody after their arrest on 12.04.2024 and that there was no
mention in the orders that their detention was required under the Act of
1988 as they were likely to be released on bail. They contended that the
detention orders were passed mechanically and without application of
mind, violating their fundamental rights enshrined in Article 21 of the
Constitution.
5. However, their representations were rejected by the Special
Secretary, Home Department, Government of Nagaland, vide separate
orders dated 13.06.2024. Thereafter, the Chief Secretary, Government of
Nagaland, affirmed the rejection of their representations by way of separate
orders dated 18.06.2024. On 19.06.2024, the representations of the
detenus were forwarded to the Joint Secretary, PITNDPS, Government of
India. Upon considering the records and affording an opportunity of hearing
to the detenus, the Advisory Board, Nagaland, submitted report dated
09.08.2024. Therein, the Board opined that there was sufficient cause for
4
the detention of Ashraf Hussain Choudhary and Adaliu Chawang in
connection with Narcotics PS Case No. 005/2024. The Government of
India, through its PITNDPS Division, Department of Revenue, Ministry of
Finance, rejected the representations of the detenus under Memorandum
dated 27.08.2024. The Government of Nagaland then issued confirmation
orders dated 02.09.2024, extending the period of detention of both the
detenus till 02.12.2024. Their detention was thereafter extended from
03.12.2024 till 02.03.2025 under order dated 30.11.2024 (pertaining to
Adaliu Chawang) and order dated 02.12.2024 (pertaining to Ashraf Hussain
Choudhary) issued by the Chief Secretary, Government of Nagaland.
6. Notably, Ashraf Hussain Choudhary and Adaliu Chawang were
granted statutory bail in Narcotics PS Case No. 005/2024 by the learned
Special Judge, NDPS, Kohima, Nagaland, vide order dated 28.11.2024, as
the prosecution failed to file a charge-sheet within the prescribed time.
However, they still remain incarcerated owing to the impugned detention
orders.
7. It would be apposite at this stage to take note of the statutory regime
of the Act of 1988. Section 3(1) thereof empowers the authorized officers,
either of the Central Government or of a State Government, to detain any
person with a view to prevent him/her from engaging in illicit traffic in
5
narcotic drugs and psychotropic substances. Section 3(2) requires a State
Government that passes such a detention order to forward a report of the
same to the Central Government within ten days. Section 3(3) mandates
communication of the grounds on which the detention order has been
made to the detenu 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.
The sub-section records that this requirement is for the purposes of Article
22(5) of the Constitution, which mandates such communication as soon as
may be. Section 6 of the Act of 1988 provides that the grounds of detention
are severable and an order of detention shall not be deemed to be invalid
or inoperative merely because one or some of the grounds is either found
to be vague, non-existent, irrelevant or not connected with such persons or
is invalid for any other reason. Section 6 specifically records that where a
person has been detained pursuant to an order of detention under Section
3(1), which has been made on two or more grounds, such order shall be
deemed to have been made separately on each ground. This indicates that
the order of detention must be accompanied by the ‘grounds of detention’
made by the detaining authority itself. Section 11 of the Act of 1988 speaks
6
of the maximum period of detention and states that the same may be
extended up to 2 (two) years from the date of detention.
8. We may now note precedential law on the subject. In Kamarunnissa
1
vs. Union of India , the detenus were already in judicial custody at the
time the orders of preventive detention were passed against them. This
Court affirmed that detention orders could be validly passed against
detenus who were in jail, provided the officers passing the orders were
alive to the factum of the detenus being in custody and there was material
on record to justify the conclusion that they would indulge in similar
activities, if set at liberty. Reference was made to the earlier decision of this
2
Court in Binod Singh vs. District Magistrate, Dhanbad, Bihar , wherein
it was held that there must be cogent material before the officer passing the
detention order to infer that the detenu was likely to be released on bail and
such an inference must be drawn from the material on record and must not
be the ipse dixit of the officer passing such order. This Court, therefore,
emphasized that before passing the detention order in respect of a person
who is in jail, the concerned authority must satisfy himself and such
satisfaction must be reached on the basis of cogent material that there is a
real possibility of the detenu being released on bail and, further, if released
1
(1991) 1 SCC 128
2
(1986) 4 SCC 416
7
on bail, the material on record must reveal that he/she would indulge in
prejudicial activity again, if not detained.
3
9. On similar lines, in Rekha vs. State of Tamil Nadu , a 3-Judge
Bench of this Court affirmed that, where a detention order is passed
against a person already in jail, there should be a real possibility of the
release of that person on bail, that is, he must have moved a bail
application which is pending. It was observed that if no bail application is
pending it logically followed that there is no likelihood of the person in jail
being released on bail. The Bench, however, pointed out that the exception
to this Rule would be where a co-accused, whose case stood on the same
footing, was granted bail. The Bench cautioned that details in this regard
have to be recorded, otherwise the statement would be mere ipse dixit and
cannot be relied upon. The law laid down in Rekha ( supra ) was reiterated
and followed in Huidrom Konungjao Singh vs. State of Manipur and
4
others .
5
10. Earlier, in Union of India vs . Paul Manickam and another , this
Court observed that, where detention orders are passed against persons
who are already in jail, the detaining authority should apply its mind and
show awareness in the grounds of detention of the chances of release of
3
(2011) 5 SCC 244
4
(2012) 7 SCC 181
5
(2003) 8 SCC 342
8
such persons on bail. It was observed that the detaining authority must be
reasonably satisfied, on the basis of cogent material, that there is a
likelihood of the detenu’s release and in view of his/her antecedent
activities, which are proximate in point of time, he/she must be detained in
order to prevent him/her from indulging in such prejudicial activities. It was
held that an order of detention would be valid in such circumstances only if
the authority passing the order is aware of the fact that the detenu is
actually in custody; the authority has a reason to believe, on the basis of
reliable material, that there is a real possibility of the detenu being released
on bail; and that, upon such release, he/she would, in all probability,
indulge in prejudicial activities; and it is felt essential to detain him/her to
prevent him/her from so doing. This principle was again reiterated and
6
applied in Union of India and another vs. Dimple Happy Dhakad .
11. We may now refer to the Constitution Bench judgment in Harikisan
7
vs. State of Maharashtra and others in the context of
proper communication of the grounds of detention to the detenu so as to
protect his/her right under Article 22(5) of the Constitution of making an
effective representation against such detention. In that case, the grounds
of detention were in English and the authorities asserted that the same
6
(2019) 20 SCC 609
7
AIR 1962 SC 911
9
were explained to the detenu in Hindi, a language known to the detenu,
and that it would amount to satisfactory compliance. This plea was,
however, rejected. The observations of the Bench in this regard read as
under:
“In our opinion, this was not sufficient compliance in this
case with the requirements of the Constitution, as laid down in
clause (5) of Article 22. To a person, who is not conversant with
the English language, service of the Order and the grounds of
detention in English, with their oral translation or explanation by
the police officer serving them does not fulfil the requirements
of the law. As has been explained by this Court in the case
of State of Bombay v. Atma Ram Sridhar Vaidya [1951 SCC
43 : (1951) SCR 167] clause (5) of Article 22 requires that the
grounds of his detention should be made available to the
detenue as soon as may be, and that the earliest opportunity of
making a representation against the Order should also be
afforded to him. In order that the detenue should have that
opportunity, it is not sufficient that he has been physically
delivered the means of knowledge with which to make his
representation. In order that the detenue should be in a position
effectively to make his representation against the Order, he
should have knowledge of the grounds of detention, which are
in the nature of the charge against him setting out the kinds of
prejudicial acts which the authorities attribute to him.
Communication, in this context, must, therefore, mean
imparting sufficient knowledge of all the grounds on which the
Order of Detention is based. In this case the grounds are
several, and are based on numerous speeches said to have
been made by the appellant himself on different occasions and
different dates. Naturally, therefore, any oral translation or
10
explanation given by the police officer serving those on the
detenue would not amount to communicating the grounds.
Communication, in this context, must mean bringing home to
the detenue effective knowledge of the facts and circumstances
on which the Order of Detention is based.”
The Constitution Bench went on to affirm that, if the detenu is not
conversant with the English language, in order to satisfy the requirements
of the Constitution, the detenu must be given the grounds in a language
which he/she can understand and in a script which he/she can read, if
he/she is a literate person.
12. Given the settled legal position, as set out supra , we are of the
opinion that the orders of detention passed against Ashraf Hussain
Choudhary and Adaliu Chawang cannot be sustained. The authorities
concerned paid mere lip service to the mandatory requirements and
mechanically went through the motions while dealing with the cases of
these two individuals. The proposals submitted by the Investigating Officer
noted the fact that both the detenus were arrested on 12.04.2024 and that
they had not been released on bail. Reference was also made to their
involvement in earlier cases. In the case of Adaliu Chawang, the
Investigating Officer stated that she was arrested in Meghalaya in
connection with FIR dated 21.04.2021 but noted that she was not treated
11
as absconding after being granted bail. In the case of Ashraf Hussain
Choudhary, the Investigating Officer stated that he was earlier arrested in
connection with a case registered by Dimapur East PS in the year 2022,
but noted that he was also not absconding in relation thereto after securing
bail.
13. The Investigating Officer, however, did not state anything about
either of the detenus seeking bail in relation to Narcotics PS Case No.
005/24, after being arrested on 12.04.2024. The covering letters dated
14.05.2024 and 17.05.2024 addressed by the Additional Director General
of Police to the Special Secretary, Home Department, Government of
Nagaland, reiterated the factum of both the detenus having been arrested
on 12.04.2024 and their being in judicial custody on that date. He,
however, went on to state that, if granted bail, there was a great chance of
both of them continuing with illicit trafficking of narcotic drugs and
psychotropic substances. There was no basis whatsoever for this ipse dixit
statement, as it is an admitted fact that neither Ashraf Hussain Choudhary
nor Adaliu Chawang had applied for bail at the time the detention orders
were passed against them. As noted earlier, it was only on 28.11.2024 that
they were granted default bail owing to the failure of the prosecution to do
the needful within the prescribed time. Therefore, the edicts of this Court,
12
referred to supra , would squarely apply as there was no material for the
detaining authority to have formed an opinion that there was a likelihood of
either Ashraf Hussain Choudhary or Adaliu Chawang being released on
bail.
14. Further, it is an admitted fact that neither Ashraf Hussain Choudhary
nor Adaliu Chawang knew English, the language in the orders of detention
and the supporting documents. They specifically raised this issue in their
individual representations dated 12.06.2024. The proposals for their
detention also recorded that the only languages known to Adaliu Chawang
were Nagamese, Manipuri and Hindi, while Ashraf Hussain Choudhary
knew Nagamese, Bengali and Hindi. However, the authorities claimed that
the contents of the orders and the grounds of detention were explained to
them in Nagamese and that the same would suffice. This argument must
necessarily fail in the light of the law enunciated by a Constitution Bench in
Harikisan ( supra ). Such oral communication, even if true, did not amount
to adequate communication, in terms of Article 22(5) of the Constitution.
15. We may also note that the proposals for detention of Ashraf Hussain
Choudhary and Adaliu Chawang and the documents relating thereto were
quite voluminous. The proposal letter dated 14.05.2024 for Ashraf Hussain
Choudhary's detention contained not only the proposal of the Investigating
13
Officer but also documents in Annexures A to T, i.e., 20 documents in all.
Similarly, the proposal letter dated 17.05.2024 for the detention of Adaliu
Chawang enclosed not only the proposal of the Investigating Officer but
also documents in Annexures A to H, i.e., 8 documents in total. Expecting
these detenus to remember what was orally explained to them from these
compendious documents on 03.06.2024 over a length of time and to recall
the same so as to make effective representations on 12.06.2024 would be
practically an impossibility.
16. Lastly, the material placed on record reflects that the detaining
authority, viz., the Special Secretary, Home Department, Government of
Nagaland, did not even make separate grounds of detention but merely
acted upon the proposals for detention forwarded to her by the Additional
Director General of Police (Administration), Nagaland. The cryptic orders
of detention passed by her on 30.05.2024 merely recorded that she was
satisfied, on careful examination of such proposals and other supporting
documents, that sufficient grounds were made out for the detention of
Ashraf Hussain Choudhary and Adaliu Chawang. This is not in keeping
with the statutory scheme, inasmuch as Section 6 of the Act of 1988
specifically refers to the order of detention ‘being made’ on separate
grounds. Further, Section 3(1) also records that the authorized officer, be it
14
of the Central Government or of a State Government, must be ‘satisfied’
that the person concerned required to be detained so as to prevent
him/her from engaging in illicit trafficking of narcotic drugs and
psychotropic substances. Such ‘satisfaction’ of the detaining authority
necessarily has to be spelt out after application of mind by way of separate
grounds of detention made by the detaining authority itself and cannot be
by inference from a casual reference to the material placed before such
detaining authority or a bald recital to the effect that the detaining authority
was ‘satisfied on examination of the proposals and supporting documents’
that the detention of the individuals concerned was necessary.
17. On the aforestated analysis, we hold that the Gauhati High Court
erred in the application of settled legal norms while testing the validity of
the impugned detention orders. The common judgement dated 29.08.2024
passed by the Gauhati High Court dismissing the two writ petitions is
accordingly set aside and the appeals are allowed.
In consequence, the detention orders dated 30.05.2024 passed by
the Special Secretary, Home Department, Government of Nagaland,
confirmed and continued thereafter by way of extension orders, shall stand
quashed. The detenus, Ashraf Hussain Choudhary and Adaliu Chawang,
15
shall be set at liability forthwith, unless their continued incarceration is
warranted in connection with any other case.
............................., J
(Sanjay Kumar)
………………............................., J
(Augustine George Masih)
March 5, 2025
New Delhi.
16
Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs. 4872-4873 OF 2024
Mortuza Hussain Choudhary ….. Appellant
Versus
The State of Nagaland and others ….. Respondents
J U D G M E N T
SANJAY KUMAR, J
Ashraf Hussain Choudhary and his wife, Adaliu Chawang,
were subjected to preventive detention under Section 3(1) of
the Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988 (for brevity, ‘the Act of
1988’), vide separate orders dated 30.05.2024 passed by the
Special Secretary, Home Department, Government of
Nagaland. Challenge thereto by Mortuza Hussain Choudhary,
the brother of Ashraf Hussain Choudhary, by way of WP (Crl.)
Signature Not Verified
Nos. 10 and 11 of 2024 came to naught when the Gauhati High
Digitally signed by
babita pandey
Date: 2025.03.05
16:28:16 IST
Reason:
Court dismissed both the writ petitions on 29.08.2024. Hence,
these appeals.
1
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.
3. We may briefly note the admitted facts in the cases on hand: Three
individuals, viz., Nehkhoi Guite (the driver of the vehicle) and two ladies,
Hoinu @ Vahboi and Chinneilhing Haokip @ Neopi, were apprehended by
the police on the night of 05.04.2024 in Khuzama village area while
2
travelling in a Mahindra TUV Vehicle. Upon search of the vehicle, 20 soap
cases of Heroin were found concealed in the gear lever cover. The seized
Heroin weighed 239 grams. Thereupon, Suo Motu FIR No. 005/2024 was
registered on 06.04.2024 on the file of the Narcotics PS under Sections
22(b) and 60 of the Narcotic Drugs and Psychotropic Substances Act,
1985. Upon interrogation, Chinneilhing Haokip @ Neopi implicated Adaliu
Chawang and stated that she had supplied Heroin earlier also to Adaliu
Chawang and received money. Ashraf Hussain Choudhary and Adaliu
Chawang were arrested at Dimapur on 12.04.2024 and were remanded to
custody.
4. While so, the Investigating Officer of the case submitted proposals for
the preventive detention of Ashraf Hussain Choudhary and Adaliu
Chawang. These proposals were forwarded to the Special Secretary, Home
Department, Government of Nagaland, by the Additional Director General
of Police (Administration), Nagaland, under letters dated 14.05.2024 and
17.05.2024. Acting thereupon, the Special Secretary, Home Department,
Government of Nagaland, issued separate orders dated 30.05.2024, in
exercise of power under Section 3(1) of the Act of 1988, directing that
Ashraf Hussain Choudhary and Adaliu Chawang be detained and kept in
the District Jail, Dimapur, for an initial period of 3 months. Both the detenus
3
submitted individual representations dated 12.06.2024 seeking revocation
of their detention. Therein, both of them asserted that they had been
served copies of the detention orders in a language they were not familiar
with and that no copy of the detention order was served to them in a
language that they understood. They also pointed out that they were
already in custody after their arrest on 12.04.2024 and that there was no
mention in the orders that their detention was required under the Act of
1988 as they were likely to be released on bail. They contended that the
detention orders were passed mechanically and without application of
mind, violating their fundamental rights enshrined in Article 21 of the
Constitution.
5. However, their representations were rejected by the Special
Secretary, Home Department, Government of Nagaland, vide separate
orders dated 13.06.2024. Thereafter, the Chief Secretary, Government of
Nagaland, affirmed the rejection of their representations by way of separate
orders dated 18.06.2024. On 19.06.2024, the representations of the
detenus were forwarded to the Joint Secretary, PITNDPS, Government of
India. Upon considering the records and affording an opportunity of hearing
to the detenus, the Advisory Board, Nagaland, submitted report dated
09.08.2024. Therein, the Board opined that there was sufficient cause for
4
the detention of Ashraf Hussain Choudhary and Adaliu Chawang in
connection with Narcotics PS Case No. 005/2024. The Government of
India, through its PITNDPS Division, Department of Revenue, Ministry of
Finance, rejected the representations of the detenus under Memorandum
dated 27.08.2024. The Government of Nagaland then issued confirmation
orders dated 02.09.2024, extending the period of detention of both the
detenus till 02.12.2024. Their detention was thereafter extended from
03.12.2024 till 02.03.2025 under order dated 30.11.2024 (pertaining to
Adaliu Chawang) and order dated 02.12.2024 (pertaining to Ashraf Hussain
Choudhary) issued by the Chief Secretary, Government of Nagaland.
6. Notably, Ashraf Hussain Choudhary and Adaliu Chawang were
granted statutory bail in Narcotics PS Case No. 005/2024 by the learned
Special Judge, NDPS, Kohima, Nagaland, vide order dated 28.11.2024, as
the prosecution failed to file a charge-sheet within the prescribed time.
However, they still remain incarcerated owing to the impugned detention
orders.
7. It would be apposite at this stage to take note of the statutory regime
of the Act of 1988. Section 3(1) thereof empowers the authorized officers,
either of the Central Government or of a State Government, to detain any
person with a view to prevent him/her from engaging in illicit traffic in
5
narcotic drugs and psychotropic substances. Section 3(2) requires a State
Government that passes such a detention order to forward a report of the
same to the Central Government within ten days. Section 3(3) mandates
communication of the grounds on which the detention order has been
made to the detenu 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.
The sub-section records that this requirement is for the purposes of Article
22(5) of the Constitution, which mandates such communication as soon as
may be. Section 6 of the Act of 1988 provides that the grounds of detention
are severable and an order of detention shall not be deemed to be invalid
or inoperative merely because one or some of the grounds is either found
to be vague, non-existent, irrelevant or not connected with such persons or
is invalid for any other reason. Section 6 specifically records that where a
person has been detained pursuant to an order of detention under Section
3(1), which has been made on two or more grounds, such order shall be
deemed to have been made separately on each ground. This indicates that
the order of detention must be accompanied by the ‘grounds of detention’
made by the detaining authority itself. Section 11 of the Act of 1988 speaks
6
of the maximum period of detention and states that the same may be
extended up to 2 (two) years from the date of detention.
8. We may now note precedential law on the subject. In Kamarunnissa
1
vs. Union of India , the detenus were already in judicial custody at the
time the orders of preventive detention were passed against them. This
Court affirmed that detention orders could be validly passed against
detenus who were in jail, provided the officers passing the orders were
alive to the factum of the detenus being in custody and there was material
on record to justify the conclusion that they would indulge in similar
activities, if set at liberty. Reference was made to the earlier decision of this
2
Court in Binod Singh vs. District Magistrate, Dhanbad, Bihar , wherein
it was held that there must be cogent material before the officer passing the
detention order to infer that the detenu was likely to be released on bail and
such an inference must be drawn from the material on record and must not
be the ipse dixit of the officer passing such order. This Court, therefore,
emphasized that before passing the detention order in respect of a person
who is in jail, the concerned authority must satisfy himself and such
satisfaction must be reached on the basis of cogent material that there is a
real possibility of the detenu being released on bail and, further, if released
1
(1991) 1 SCC 128
2
(1986) 4 SCC 416
7
on bail, the material on record must reveal that he/she would indulge in
prejudicial activity again, if not detained.
3
9. On similar lines, in Rekha vs. State of Tamil Nadu , a 3-Judge
Bench of this Court affirmed that, where a detention order is passed
against a person already in jail, there should be a real possibility of the
release of that person on bail, that is, he must have moved a bail
application which is pending. It was observed that if no bail application is
pending it logically followed that there is no likelihood of the person in jail
being released on bail. The Bench, however, pointed out that the exception
to this Rule would be where a co-accused, whose case stood on the same
footing, was granted bail. The Bench cautioned that details in this regard
have to be recorded, otherwise the statement would be mere ipse dixit and
cannot be relied upon. The law laid down in Rekha ( supra ) was reiterated
and followed in Huidrom Konungjao Singh vs. State of Manipur and
4
others .
5
10. Earlier, in Union of India vs . Paul Manickam and another , this
Court observed that, where detention orders are passed against persons
who are already in jail, the detaining authority should apply its mind and
show awareness in the grounds of detention of the chances of release of
3
(2011) 5 SCC 244
4
(2012) 7 SCC 181
5
(2003) 8 SCC 342
8
such persons on bail. It was observed that the detaining authority must be
reasonably satisfied, on the basis of cogent material, that there is a
likelihood of the detenu’s release and in view of his/her antecedent
activities, which are proximate in point of time, he/she must be detained in
order to prevent him/her from indulging in such prejudicial activities. It was
held that an order of detention would be valid in such circumstances only if
the authority passing the order is aware of the fact that the detenu is
actually in custody; the authority has a reason to believe, on the basis of
reliable material, that there is a real possibility of the detenu being released
on bail; and that, upon such release, he/she would, in all probability,
indulge in prejudicial activities; and it is felt essential to detain him/her to
prevent him/her from so doing. This principle was again reiterated and
6
applied in Union of India and another vs. Dimple Happy Dhakad .
11. We may now refer to the Constitution Bench judgment in Harikisan
7
vs. State of Maharashtra and others in the context of
proper communication of the grounds of detention to the detenu so as to
protect his/her right under Article 22(5) of the Constitution of making an
effective representation against such detention. In that case, the grounds
of detention were in English and the authorities asserted that the same
6
(2019) 20 SCC 609
7
AIR 1962 SC 911
9
were explained to the detenu in Hindi, a language known to the detenu,
and that it would amount to satisfactory compliance. This plea was,
however, rejected. The observations of the Bench in this regard read as
under:
“In our opinion, this was not sufficient compliance in this
case with the requirements of the Constitution, as laid down in
clause (5) of Article 22. To a person, who is not conversant with
the English language, service of the Order and the grounds of
detention in English, with their oral translation or explanation by
the police officer serving them does not fulfil the requirements
of the law. As has been explained by this Court in the case
of State of Bombay v. Atma Ram Sridhar Vaidya [1951 SCC
43 : (1951) SCR 167] clause (5) of Article 22 requires that the
grounds of his detention should be made available to the
detenue as soon as may be, and that the earliest opportunity of
making a representation against the Order should also be
afforded to him. In order that the detenue should have that
opportunity, it is not sufficient that he has been physically
delivered the means of knowledge with which to make his
representation. In order that the detenue should be in a position
effectively to make his representation against the Order, he
should have knowledge of the grounds of detention, which are
in the nature of the charge against him setting out the kinds of
prejudicial acts which the authorities attribute to him.
Communication, in this context, must, therefore, mean
imparting sufficient knowledge of all the grounds on which the
Order of Detention is based. In this case the grounds are
several, and are based on numerous speeches said to have
been made by the appellant himself on different occasions and
different dates. Naturally, therefore, any oral translation or
10
explanation given by the police officer serving those on the
detenue would not amount to communicating the grounds.
Communication, in this context, must mean bringing home to
the detenue effective knowledge of the facts and circumstances
on which the Order of Detention is based.”
The Constitution Bench went on to affirm that, if the detenu is not
conversant with the English language, in order to satisfy the requirements
of the Constitution, the detenu must be given the grounds in a language
which he/she can understand and in a script which he/she can read, if
he/she is a literate person.
12. Given the settled legal position, as set out supra , we are of the
opinion that the orders of detention passed against Ashraf Hussain
Choudhary and Adaliu Chawang cannot be sustained. The authorities
concerned paid mere lip service to the mandatory requirements and
mechanically went through the motions while dealing with the cases of
these two individuals. The proposals submitted by the Investigating Officer
noted the fact that both the detenus were arrested on 12.04.2024 and that
they had not been released on bail. Reference was also made to their
involvement in earlier cases. In the case of Adaliu Chawang, the
Investigating Officer stated that she was arrested in Meghalaya in
connection with FIR dated 21.04.2021 but noted that she was not treated
11
as absconding after being granted bail. In the case of Ashraf Hussain
Choudhary, the Investigating Officer stated that he was earlier arrested in
connection with a case registered by Dimapur East PS in the year 2022,
but noted that he was also not absconding in relation thereto after securing
bail.
13. The Investigating Officer, however, did not state anything about
either of the detenus seeking bail in relation to Narcotics PS Case No.
005/24, after being arrested on 12.04.2024. The covering letters dated
14.05.2024 and 17.05.2024 addressed by the Additional Director General
of Police to the Special Secretary, Home Department, Government of
Nagaland, reiterated the factum of both the detenus having been arrested
on 12.04.2024 and their being in judicial custody on that date. He,
however, went on to state that, if granted bail, there was a great chance of
both of them continuing with illicit trafficking of narcotic drugs and
psychotropic substances. There was no basis whatsoever for this ipse dixit
statement, as it is an admitted fact that neither Ashraf Hussain Choudhary
nor Adaliu Chawang had applied for bail at the time the detention orders
were passed against them. As noted earlier, it was only on 28.11.2024 that
they were granted default bail owing to the failure of the prosecution to do
the needful within the prescribed time. Therefore, the edicts of this Court,
12
referred to supra , would squarely apply as there was no material for the
detaining authority to have formed an opinion that there was a likelihood of
either Ashraf Hussain Choudhary or Adaliu Chawang being released on
bail.
14. Further, it is an admitted fact that neither Ashraf Hussain Choudhary
nor Adaliu Chawang knew English, the language in the orders of detention
and the supporting documents. They specifically raised this issue in their
individual representations dated 12.06.2024. The proposals for their
detention also recorded that the only languages known to Adaliu Chawang
were Nagamese, Manipuri and Hindi, while Ashraf Hussain Choudhary
knew Nagamese, Bengali and Hindi. However, the authorities claimed that
the contents of the orders and the grounds of detention were explained to
them in Nagamese and that the same would suffice. This argument must
necessarily fail in the light of the law enunciated by a Constitution Bench in
Harikisan ( supra ). Such oral communication, even if true, did not amount
to adequate communication, in terms of Article 22(5) of the Constitution.
15. We may also note that the proposals for detention of Ashraf Hussain
Choudhary and Adaliu Chawang and the documents relating thereto were
quite voluminous. The proposal letter dated 14.05.2024 for Ashraf Hussain
Choudhary's detention contained not only the proposal of the Investigating
13
Officer but also documents in Annexures A to T, i.e., 20 documents in all.
Similarly, the proposal letter dated 17.05.2024 for the detention of Adaliu
Chawang enclosed not only the proposal of the Investigating Officer but
also documents in Annexures A to H, i.e., 8 documents in total. Expecting
these detenus to remember what was orally explained to them from these
compendious documents on 03.06.2024 over a length of time and to recall
the same so as to make effective representations on 12.06.2024 would be
practically an impossibility.
16. Lastly, the material placed on record reflects that the detaining
authority, viz., the Special Secretary, Home Department, Government of
Nagaland, did not even make separate grounds of detention but merely
acted upon the proposals for detention forwarded to her by the Additional
Director General of Police (Administration), Nagaland. The cryptic orders
of detention passed by her on 30.05.2024 merely recorded that she was
satisfied, on careful examination of such proposals and other supporting
documents, that sufficient grounds were made out for the detention of
Ashraf Hussain Choudhary and Adaliu Chawang. This is not in keeping
with the statutory scheme, inasmuch as Section 6 of the Act of 1988
specifically refers to the order of detention ‘being made’ on separate
grounds. Further, Section 3(1) also records that the authorized officer, be it
14
of the Central Government or of a State Government, must be ‘satisfied’
that the person concerned required to be detained so as to prevent
him/her from engaging in illicit trafficking of narcotic drugs and
psychotropic substances. Such ‘satisfaction’ of the detaining authority
necessarily has to be spelt out after application of mind by way of separate
grounds of detention made by the detaining authority itself and cannot be
by inference from a casual reference to the material placed before such
detaining authority or a bald recital to the effect that the detaining authority
was ‘satisfied on examination of the proposals and supporting documents’
that the detention of the individuals concerned was necessary.
17. On the aforestated analysis, we hold that the Gauhati High Court
erred in the application of settled legal norms while testing the validity of
the impugned detention orders. The common judgement dated 29.08.2024
passed by the Gauhati High Court dismissing the two writ petitions is
accordingly set aside and the appeals are allowed.
In consequence, the detention orders dated 30.05.2024 passed by
the Special Secretary, Home Department, Government of Nagaland,
confirmed and continued thereafter by way of extension orders, shall stand
quashed. The detenus, Ashraf Hussain Choudhary and Adaliu Chawang,
15
shall be set at liability forthwith, unless their continued incarceration is
warranted in connection with any other case.
............................., J
(Sanjay Kumar)
………………............................., J
(Augustine George Masih)
March 5, 2025
New Delhi.
16