Salim through next friend Liyakat vs The Union of India and Another

A.R. Tiwari, J.

The order of detention dated 28th January, 1994 (Annexure-A) passed by Joint Secretary to the Government of India Under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short ''the Act'') against Salim (detenue) with a view to preventing him from engaging in the purchase, possession and transportation of narcotics drugs is under challenge in this petition under Art. 226 of the Constitution of India seeking issuance of WRIT of ''Habeas Corpus''.

Briefly stated the facts of the case are that on 17.7.1993 three persons, who had arrived at Nagda by Dehradun Express were, intercepted in front of Hotel Chadralok, Gali No. 1 Mahatma Gandhi Raod, at about, 14.30 hours by the team of officers headed by a gazetted officer in the presence of two witnesses. In questioning, the trio disclosed their names (one of them being detenue and the other two being Nassir Hussain and Bhanwar Singh). The detenue was found carrying one bag. On search, this bag was found containing 5 polythene packets wrapped in cloth. The packets were found to contain brownish powder. On Weighment, these packets were found containing 4.700 Kgs Heroin. Samples were drawn and sealed. The statement of the detenue was recorded. A case under NDPS was registered against the detenue. He was arrested and later committed to judicial custody on 17.7.93. On 26.1.94, i. e. after about 6 months from the aforesaid incident, the order of detention was passed and served on the detenue while in jail along with the grounds (Annexure-B) Liyakat, as next friend, has filed this writ petition on behalf of detenue Salim.

The respondent No. 1 has filed the affidavit. The counsel for the respondent No. 1 submitted that no further affidavit is necessary.

I have heard counsel for the parties.

The grounds Annexure-B contain the regicidal in para 14 as under:

Even though prosecution proceedings under the Narcotic Drugs and Psychotropic Substances Act, 1985 have been initiated against you in the matter, I am satisfied that there is compelling necessity in view of the likelihood of your being released on bail under normal law and of the likelihood of your indulging in illicit traffic in narcotic drugs as is evident from the trend of your activities to detain you under the prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

The order is impugned on number of grounds, namely :

(a) passing of order while in custody without due application of mind.

(b) Delay in passing the order.

(c) Pendency of criminal case under NDPS Act.

(d) Absence of proper application of mind.

The counsel for the petitioner submitted that the finding contained in the grounds extracted above is itself enough to mortalise the order of detention.

Shri Khan was, however, asked to explain three features as noted below :

(a) What was there to assume likelihood of release on bail in the case of rejection of application and in view of letters fixed u/s 37 of NDPS ?

(b) What is the material to show likelihood of engagement in future in view of facts as noted in (a) to (c) of para 6 above?

(c) What was there to show the necessity of passing the order after six months and serving it thereafter?

The Learned Counsel was unable to offer any satisfactory answer to these questions and dispel the cloud of arbitrariness and non-application of mind. Frankfurter, J. observed in classic terms that "He that takes the procedural sword shall perish with the sword". The absence of answers thus shows the seed of destruction and proclaims perishable of the order under challenge.

Referring the case of Collector of Central Excise, New Delhi Vs. Ballarpur Industries Ltd., which explained '' ''compelling reasons'''' as indicative of cogent material for satisfaction that (a) detenue was likely to be released in near future and (b) detenue was likely to indulge in offensive activities requiring his detention to prevent him from engaging in such activities, the Supreme Court held in 1994 (II) MPWN 151 Surya Prakash Sharma v. State of U.P. as under :-

when the above principles are applied to the facts of the instant case, there is no escape from the conclusion that the impugned order cannot be sustained. Though the grounds of detention indicate the detaining authority''s awareness of the fact that the detenue was in judicial custody at the time of making the order of detention, the detaining authority has not brought on record any cogent material nor furnished any cogent ground in support of the averment made in grounds of detention that if the aforesaid Surya Prakash Sharma is released on bail he may again indulge in serious offences causing threat to public order ''(emphasis supplied). To put it differently, the satisfaction of the detaining authority that the detenue might indulge in serious offences causing threat to public order, solely on the basis of a solitary murder, cannot be said to be proper and justified.

In 1989 MPLJ 447 (DB) - Dilip v. State of M.P. this Court took the view as under :-

In the instant case, if we accept the factual position that the detention order against the petitioner was passed on 7.9.1987 and that he was taken into custody on 25.10.1987 we have to insist on the detaining authority to satisfy us that on the date when the petitioner was apprehended there was necessity subsisting to detain him on that date and, indeed also when he could not be apprehended earlier to be detained in terms of the detention order passed on 7.9.1987 so as to prevent him from indulging in prejudicial activities.

The Apex Court in Rameshwar v. District Magistrate 1964 (1) Cri. L. J 68) Page 257) took the view as under :

...It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary to prevent him from acting in a prejudicial manner, the authority has to be satisfied that if the person is not detained he would act in a prejudicial manner and that inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it traditionally be postulated that if he is not detained he would act in a prejudicial manner. At the point of time when an order of detention is going to be served on a person, it must be patent that the said person would act prejudicially if he is not detained and that it is a consideration which would be absent when the authority is debating with a person already in detention. The satisfaction that it is new(sic) to detain a person for the purpose of preventing him from acting in a prejudicial manner is thus the basis of the order u/s 3(1)(a) and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in circumstances of this case, is not justified by Section 3(1)(a) and is outside its purview. The District Magistrate, Eurdwan who ordered the detention of the detenue acted out side his power conferred on him u/s 3(1)(a) when he held that it was necessary to detain the petitioner in order to prevent him from acting in a prejudicial manner....

In the instant case too, the basis is clearly and conspicuously absent. There is thus no escape from the conclusion that detention under S. 3(1) of the Act is not justified and deserves to be demolished. The material justified prosecution and not preventive detention. The bail court may be requested to apply rigour of Sec. 37 NDPS Act more seriously. The points chronicled above, are thus found solid and valid and are permitted to prevail.

Applying the above principles to the facts and features of instant case, 1 find that there is no material on record to sustain the order impugned herein. In this view of the matter, it is not necessary to deal with other grounds in it above.

In the result, I hold that detention under the law providing preventive detention as noted above is inutile and futile and is illegal and illogical. As such, I quash the order of detention (Annexure-A) as impugned, as also the continued detention in pursuance thereof. Accordingly the defends shall be set at liberty if and when he is not required to be kept in custody in connection with any other case or matter. Let a WRIT of habeas corpus be issued in these terms.

This petition thus allowed with no orders as to costs.