Safiya Malik

The Orissa High Court has set aside the preventive detention order issued against Nilakantha Pradhan under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act). The court found procedural lapses in the detention process, including non-disclosure of relevant materials to the petitioner, which deprived him of the opportunity to make an effective representation.

The petitioner, Nilakantha Pradhan, had challenged the detention order dated July 23, 2024, and its subsequent confirmation on October 18, 2024. The detention was ordered by the Government of India under Section 3(1) of the PITNDPS Act to prevent him from engaging in illicit trafficking of narcotic drugs and psychotropic substances. The petitioner was detained at Circle Jail, Choudwar, Cuttack.

The detention order was based on multiple criminal cases registered against the petitioner:

1. NCB Bhubaneswar Crime No. 02/2024 (January 25, 2024): Under the NDPS Act, where the charge sheet had not yet been submitted.

2. Odisha Excise Case PR No. 1022/2022-23 (March 12, 2023): Registered under Section 20(b)(ii)(C) of the NDPS Act, in which the petitioner had been released on bail.

3. Kantamal P.S. FIR No. 108/2017 (September 18, 2017): Charge sheet filed under Sections 20(b)(ii)(C) and 29 of the NDPS Act, with the case still under trial.

4. Three additional cases under the Excise Act and two under the Indian Penal Code dating back to 2005: These cases were mentioned in the counter affidavit filed by the detaining authorities but not included in the grounds of detention provided to the petitioner.

The detention order stated that the petitioner was a habitual offender involved in illicit drug trafficking, which posed a serious threat to society. The order claimed that preventive detention was necessary to restrain him from further prejudicial activities. However, the petitioner argued that he had not been convicted in these cases, and his involvement was based on circumstantial evidence or unverified statements.

The Division Bench comprising Justice Sangam Kumar Sahoo and Justice Sibo Sankar Mishra identified several violations of constitutional and statutory safeguards under Article 22(5) of the Constitution and Section 6 of the PITNDPS Act.

1. Failure to Provide Complete Grounds of Detention

The court found that apart from the three NDPS cases mentioned in the detention order, the detaining authority also relied on three cases under the Excise Act and two additional cases under the Indian Penal Code, dating back to 2005. However, details of these five cases were neither mentioned in the detention order nor provided to the petitioner.

The court stated: "All the basic facts and materials which influenced the Detaining Authority in making the order of detention must be communicated to the detenu. The omission to indicate these cases has caused prejudice to the petitioner in making an effective representation."

2. Violation of Procedural Safeguards

The court noted that the Advisory Board report should have been submitted within eleven weeks from the date of detention, i.e., by October 8, 2024. However, the order confirming detention did not mention the date of submission of the Advisory Board’s report. Furthermore, the petitioner was not provided with a copy of this report, which amounted to a procedural lapse. The court also found discrepancies in the date of the submission of the representation and its acknowledgment by the concerned authorities.

3. Use of Stale Cases to Justify Detention

The court observed that some of the cases cited against the petitioner dated back to 2005. Relying on stale cases to justify preventive detention was impermissible under the law. Citing past precedents, the court stated that preventive detention cannot be used as a substitute for ordinary criminal prosecution.

The judgment noted: "Incidents which are old and in which the detenu has been granted bail cannot be said to have any relevance for detaining a citizen and depriving him of his liberty without a trial."

4. Contradictions in Detention Grounds and Affidavits

The court observed that the detention order referred to only three cases, while the counter affidavit filed by the authorities mentioned a total of eight cases. The petitioner was not provided with documents relating to the additional cases, depriving him of an opportunity to challenge the entire basis of the detention order.

The court observed: "If apart from the three NDPS Act cases, the detaining authority has also taken into account other cases under the Excise Act and IPC, the petitioner should have been informed and given all relevant documents."

5. Availability of Alternative Remedies 

The court further held that the authorities had the option to seek cancellation of bail in the pending cases under Section 37 of the NDPS Act rather than resorting to preventive detention.

It observed: "When ordinary criminal law provides sufficient means to address the apprehensions leading to detention, preventive detention should not be used as a substitute."

Concluding that the detention order suffered from serious legal infirmities, the court ruled:

"The detention order dated July 23, 2024, under Annexure-1 and the consequential confirmation order dated October 18, 2024, under Annexure-4 are hereby set aside. The opposite parties are directed to set the petitioner at liberty forthwith, if he is not required to be detained in any other case."

Case Title: Nilakantha Pradhan v. Government of India & Others

Case Number: WPCRL No. 129 of 2024

Bench: Justice Sangam Kumar Sahoo and Justice Sibo Sankar Mishra

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