1 2025:CGHC:16165-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPCR No. 97 of 2025 Ramesh Rathore S/o Shri Indal Rathore Aged About 43 Years R/o Village Ranijhap, Police Station Gaurela, District Gaurela-Pendra-Marwahi, Chhattisgarh. ... Petitioner versus 1. State of Chhattisgarh Through Secretary, Department of Home/ Police, Mahanadi Bhawan, Mantralaya, Police Station and Post Rakhi, Atal Nagar, Nawa Raipur, District Raipur, Chhattisgarh. 2. Commissioner-Cum-Detention OfÏcer Bilaspur Division, District Bilaspur, Chhattisgarh. 3. Superintendent of Police, District Gaurela-Pendra-Marwahi, Chhattisgarh. 4. Station House OfÏcer, Police Station Gaurela, District Gaurela- Pendra-Marwahi, Chhattisgarh. ...Respondents For Petitioner : Mr. Ajay Ayachi, Advocate. For Respondents/State : Mr. S.S. Baghel, Deputy Government Advocate. BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.04.09 16:59:33 +0530 2 Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Arvind Kumar Verma , Judge Order on Board Per Ramesh Sinha , Chief Justice 7.4.2025 1. Proceedings of this matter have been taken through video conferencing. 2. Heard Mr. Ajay Ayachi, learned counsel for the petitioner. Also heard Mr. S.S. Baghel, learned Deputy Government Advocate, appearing for the respondents/State. 3. The present writ petition has been filed by the petitioner with the following prayers: “10.1 That, the Hon’ble Court may kindly be pleased to call for the entire record from the possession of the concerned respondent authorities for its kind perusal. 10.2 That, this Hon’ble Court may kindly be pleased to set aside the impugned order dated 20.12.2024 (Annexure P/4) passed by respondent No.2/Commissioner, Bilaspur Division. 10.3 Any other relief or relief(s) which this Hon’ble Court may deem fit or proper in the facts and circumstances of the case may also be granted along with cost of the petition.” 4. Brief facts of the case are that respondent No. 4/SHO of Gaurela Police Station wrote a letter on 08.09.2024 to respondent No. 3/SP, Gaurela-Pendra-Marwahi for taking action against the petitioner under Section 3 of Prevention of Illicit TrafÏc in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short, ‘Act of 1988’) on the ground that in the 3 year 2021, total 1505 kg. of illicit ganja was seized from him and after being released on bail in that case again he involved himself in this offence which led to recovery of 35 kg. of ganja from him in the year 2021 itself. Thereafter, respondent No. 3/SP wrote a letter to respondent No. 2/Commissioner, Bilaspur Division to this effect and recommended for taking action against the petitioner under Section 3 of the Act of 1988. 5. Learned counsel for the petitioner submits that on Istgasha under Sections 3(1) and 10 of the Act of 1988 being filed by respondent No.3/SP against the petitioner, on 11.09.2024 respondent No.2/Commissioner summoned the concerned SHO for evidence and also issued notice to the petitioner. Accordingly, statement on oath of the SHO was recorded and after receipt of notice, the petitioner submitted his reply and on 14.11.2024 statements of the petitioner and his witnesses were recorded. He also submits that on 05.12.2024, the petitioner submitted his written arguments before learned trial Court. Surprisingly, on 20.12.2024 respondent No.2/Commissioner passed an order and thereby directed for detention of the petitioner for a period of six months in exercise of powers under Section 10 of the Act of 1988. 6. It is further submitted by learned counsel for the petitioner that as per statements of the petitioner’s witnesses, the petitioner is running a grocery shop, his conduct is very good and he does no such act which causes inconvenience or trouble to the society at large, however, ignoring these statements, the Commissioner merely on the basis of statement of the concerned SHO/Investigating OfÏcer passed the impugned order of detention of the petitioner which is against the settled principle of law. He also submits that before passing of the impugned order, no opportunity of 4 hearing or defence was afforded to the petitioner which makes the impugned order per se illegal and non est. Hence, this petition. 7. On the other hand, learned State counsel opposes the submissions on behalf of learned counsel for the petitioner and supports the impugned order. 8. We have heard learned counsel for the parties and perused the prayers and pleadings made in the writ petition along with the annexures annexed in this case. 9. A worst case of violation of human rights took place during arrest made by the Police, the Hon'ble Apex Court in D.K. Basu vs. State of West Bengal, reported in (1997) 1 SCC 416 observed as under: “20. In Joginder Kamar vs. State of U.P., [(1994) 4 SCC 260: 1994 SCC (Cri) 1172] considered the dynamics of misuse of police power of arrest and opined: "No arrest can be made because it is lawful for the police ofÏcer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another….. No arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter." 21. ****** A realistic approach should be made in this direction. The law of arrest is one 5 of balancing individual rights, liberties and privileges on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first – the criminal or society, the law violator or the law abider………” 10. The Hon'ble Apex Court in the matter of D.K. Basu (supra), after referring to the authorities in Joginder Kumar vs. State of U.P., reported in (1994) 4 SCC 260. Nilabati Behera (Smt.) Alias Lalita Behera Vs. State of Orissa & Others, reported in (1993) 2 SCC 746 and State of M.P. vs. Shyamsunder Trivedi, reported in (1995) 4 SCC 262, laid down certain guidelines to be followed in cases of arrest and detention till legal provisions are made in that behalf as preventive measures. The said guidelines reads as follows: “(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. (2) That the police ofÏcer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality 6 from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the articular place, unless the attesting witness of the meme of arrest is himself such a friend or a relative of the arrestee. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. (5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police ofÏcials in whose custody the arrestee is. 7 (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police ofÏcer effecting the arrest and its copy provided to the arrestee. (8) The arrestee should be subjected to medical examination by a trained doctor every 18 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well. (9) Copies of all the documents including the memo of arrest, referred above, should be sent to the Illaqa Magistrate for his record. (10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the ofÏcer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous noticeboard." 11. Applying the aforesaid principles of law in the case at hand, it is reflected that there were two criminal cases of NDPS Act against the 8 petitioner, out of which, in one case the petitioner has been acquitted by the trial Court and other case is pending, in which the petitioner was on bail. It is further reflected that a show cause notice was issued to the petitioner, to which he replied, but without considering the same, respondent No. 2 vide order dated 20.12.2024 directed to detain the petitioner for a period of six months and now the petitioner is in jail for about 3 months and 20 days. 12. From perusal of the records, it transpires that respondent No. 4 wrote a letter on 08.09.2024 to respondent No. 3 for taking action against the petitioner under Section 3 of the Act of 1988 on the ground that in the year 2021, total 1505 kg. of illicit ganja was seized from him and after being released on bail in that case again he involved himself in this offence which led to recovery of 35 kg. of ganja from him in the year 2021 itself. Thereafter, respondent No. 3 wrote a letter to respondent No. 2 to this effect and recommended for taking action against the petitioner under Section 3 of the Act of 1988 and on Istgasha under Section 3(1) and 10 of the Act of 1988 being filed by respondent No.3 against the petitioner, on 11.09.2024 respondent No.2 summoned the concerned SHO for evidence and also issued notice to the petitioner. Accordingly, statement on oath of the SHO was recorded and after receipt of notice, the petitioner submitted his reply and on 14.11.2024 statements of the petitioner and his witnesses were recorded and as per statements of the petitioner’s witnesses, the petitioner is running a grocery shop, his conduct is very good and he does no such act which causes inconvenience or trouble to the society at large, however, ignoring these statements, the Commissioner merely on the basis of statement of the concerned SHO/Investigating OfÏcer passed the 9 impugned order of detention of the petitioner which is against the settled principle of law. It also transpires that before passing of the impugned order, no opportunity of hearing or defence was afforded to the petitioner which makes the impugned order per se illegal and non-est. 13. Considering the facts and circumstances of the case, nature and gravity of offence, further considering the statement of the SHO, reply submitted by the petitioner, the statements of the petitioner and his witnesses, also considering the impugned order passed by respondent No.2 by which respondent No.2 while exercising the powers under Section 10 of the Act of 1988 directed for detention of the petitioner for a period of six months and now the petitioner is in custody for about 3 months and 20 days and the principle of law laid down by the Supreme Court in the above-stated judgments (supra), we deem it appropriate to exercise our discretionary jurisdiction under Article 226 of the Constitution of India and allow the petition filed by the petitioner. 14. In the result, the present writ petition is allowed. The impugned order dated 20.12.2024 is hereby set-aside. The petitioner be released forthwith, if not required in any other case. Sd/- Sd/- Sd/- (Arvind Kumar Verma) (Ramesh Sinha) Judge Chief Justice Bablu