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

1

Hussain Choudhary, by way of WP (Crl.) Nos.

10 and 11 of 2024 came to naught when the

Gauhati High Court dismissed both the writ

petitions on 29.08.2024. Hence, these

appeals.

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.

2

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 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,

3

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

4

initial period of 3 months. Both the detenus

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

5

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 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

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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

narcotic drugs and psychotropic substances.

Section 3(2) requires a State Government

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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

8

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 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 vs. Union of

India

1

, 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

1

(1991) 1 SCC 128

9

indulge in similar activities, if set at liberty.

Reference was made to the earlier decision of

this Court in Binod Singh vs. District

Magistrate, Dhanbad, Bihar

2

, 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 on bail, the

material on record must reveal that he/she

would indulge in prejudicial activity again, if

not detained.

2

(1986) 4 SCC 416

10

9.On similar lines, in Rekha vs. State of

Tamil Nadu

3

, 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

others

4

.

3

(2011) 5 SCC 244

4

(2012) 7 SCC 181

11

10.Earlier, in Union of India vs. Paul

Manickam and another

5

, 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 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

5

(2003) 8 SCC 342

12

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

applied in Union of India and another vs.

Dimple Happy Dhakad

6

.

11.We may now refer to the Constitution

Bench judgment in Harikisan vs. State of

Maharashtra and others

7

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 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

6

(2019) 20 SCC 609

7

AIR 1962 SC 911

13

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

14

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 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.

15

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 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

16

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

17

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, 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

18

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

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

19

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

20

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 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

21

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, shall be set

at liberty 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.

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