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The bail orders might influence the detaining authority in the formation of his subjective satisfaction and non placement and non consideration of the same would vitiate the order : Tripura High Court

The Tripura High Court in the case of Shri. Bishu Kumar Tripura vs The State Of Tripura (WP(C)(HC) No. 04 of 2021) upheld that the bail orders might influence the detaining authority in the formation of his subjective satisfaction and non placement and non consideration of the same would vitiate the order.

Facts of the case : The petitioner had been detained pursuant to order issued by the Home Secretary to the Government of Tripura in exercise of powers conferred under sub section (1) of section 3 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 (for short PITNDPS Act). The petitioner had structured his challenges to the detention order mainly on the following grounds:

(i) The orders whereunder the detenu was granted bail prior to the issuance of the detention order were not placed before the detaining authority. 

(ii) Non placement of these vital documents before the detaining authority and non consideration of the same by the detaining authority had vitiated the detention order because those were necessary to arrive at a subjective satisfaction as contemplated under sub section (1) of section 3 of PITNDPS Act for issuing detention order. 

Judgment : Counsel had argued that preventive detention actually tantamounts to punishment without trial. Therefore, the detaining authority must record its subjective satisfaction in the detention order as to why issuance of the preventive order was necessary.

In this background, the most vital question which fell for the consideration was whether the bail orders might have influenced the detaining authority in the formation of his subjective satisfaction and whether non placement and non consideration of the same would vitiate the order.

In the detention order there is no reference to the bail orders, the order ex facie said that those orders were not placed before the detaining authority and as a result the detaining authority at the time of passing the detention order was not aware of the fact that the detenu was granted bail in those cases and no challenge against those orders were raised by the State in the higher forum. 

The bail orders were the most pertinent and proximate matters which cannot be discarded as irrelevant and remote in the given fact situation of the case and as such those orders should have been placed before the detaining authority for consideration and arriving at a subjective satisfaction as contemplated under sub section (1) of section 3 of PITNDPS Act to arrive at a conclusion with regard to the necessity of the preventive detention of the detenu. Authority had resulted in his non application of mind which has vitiated the detention order passed by him.

JUDGMENT REVIEWED BY : SHUBHANGI CHAUDHARY

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