ORDER Usha Mehra, J.
1. The petitioner, Sanjay Rajinder Sharma Sunil Chhibber has assailed the detention order dated 30th August, 1999 which was served on him on 21st September, 1999. It was confirmed by the Central Government on 25th November, 1999 under Section 9(f) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter called the PITNDPS Act) for one year. The said order has been assailed on many grounds but during arguments counsel for the petitioner restricted the challenge primarily on two grounds, namely, (1) that the impugned detention order amounted to double detention; and (2) that there is an unexplained delay in disposal of his representation which is violative of Article 22(5) of the Constitution of India.
2. In order to appreciate the above challenge we may have a quick glance to the facts of this case. Petitioner was arrested on 24th February,1999 under Section 21 of the NDPS Act on the ground that he was carrying heroin 2.3 Kg. in his knee pad on his person. The said recovery was made from his possession. Accordingly complaint was filed against him. That case is still pending trial. While the petitioner was in custody in the said case, the impugned detention order dated 30th August, 1999 under Section 3(1) of PITNDPS Act was passed against him and served on 21st September, 1999. The detention order was confirmed by the Advisory Board as well as by the Central Government on 25th November, 1999. The petitioner made a representation against the impugned detention order. His representation was re-
ceived by the Central Government on 4th October, 1999. The same was rejected and communication of the same was communicated to him on 27th October, 1999. Representation to the Detaining Authority was rejected and communicated to him on 29th October, 1999. Thus there was an unexplained delay in disposal of his representation by the Central Government as well as by the Detaining Authority.
3. The question for consideration is whether serving of impugned detention order on the petitioner in jail amounted to double detention? Mr.Jitender Sethi, counsel for the petitioner contended that no material has been placed on record to show that the petitioner was likely to be released on bail or he had applied for it or was going to apply shortly for bail or that he was going to be released on bail. Neither any such material shown to this Court nor it is the case of the respondent that such material was put up before the Detaining Authority. Since the petitioner was in judicial custody the Detaining Authority could not have been apprehensive that the petitioner would be engaging in any prejudicial activity which required passing of the impugned detention order. The impugned order thus could not have validly been passed. The order of detention could only be passed if there were compelling reasons justifying such detention despite the fact that the petitioner was already under detention. For that the respondent has not placed on record the convincing or any material justifying the said conclusion. What was the material considered by the Detaining Authority, has not been pleaded nor disclosed even prima facie basis of arriving at the conclusion that detention of the petitioner even though in custody, was necessary because there was every likelihood of his getting bail or that he would be engaging in any prejudicial activity. Mr. Jitender Sethi in order to support his contention drew our attention to the detention order dated 30th August, 1999. Relevant extract for our purpose are which are reproduced as under:-
"30. From the facts mentioned herein above and the material placed before me, I have no hesitation in holding that Shri Sanjay Rajendra Sharma Sunil Chhibber has knowingly engaged himself in the illicit traffic in narcotic drugs as is evident from his statement and material on record, and if not prevented, he is likely to continue indulging in illicit traffic in narcotic drugs and psychotropic substance.
31. Even though prosecution proceedings under Narcotic Drugs and Psychotropic Substances Act,1985 have been initiated against Shri Sanjay Rajendra Sharma Sunil Chhibber in the matter and even though he continue to be in judicial custody, I am satisfied that there is every likelihood of his filing bail application, and also the likelihood of his being released on bail by the Court, and on such release, he is likely to engage himself illicit traffic in narcotic drugs in view of his propensity and inclination to indulge in such activities, as is evident from his activities and material on record. I am, therefore, satisfied that there is compelling necessity to detain him under the Prevention if Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing him from engaging in such activities.
32. I have carefully gone through all the documents referred to hereinabove. On the basis of his statement and documents mentioned hereinabove, I have no hesitation in arriving at the conclusion that he had engaged himself in possession, concealment, transportation and illicit export from India of narcotic drugs.
33. In view of the facts stated above, I am satisfied that it is necessary to detain Shri Sanjay Rajendra Sharma Sunil Chibber under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing him from engaging in the possession, concealment, transportation and illicit export from India of narcotic drugs, in future."
4. Reading of the above paras of the impugned detention order do not indicate any compelling circumstances enabling the Detaining Authority to justify the passing of the impugned order. Nor does it indicate that material was placed before the Detaining Authority to conclude that the petitioner who was under detention since 24th February,1999 was going to be released on bail shortly. In fact the Detaining Authority had not kept in mind at the time of passing the impugned detention order the principles laid down by the Supreme Court and which must exist if the Authority was to issue detention order against a person who is already in judicial custody. Those are, namely, (1) that the Detaining Authority must have the knowledge that the petitioner was in judicial custody; (2) there was likelihood of his being released on bail by the Court and on being released he was likely to engage himself in the illicit traffic of narcotic drugs; (3) that he had knowingly engaged himself in the illicit traffic of narcotic drugs; (4) that keeping in view his propensity and inclination to indulge in such activities it would be necessary to detain him in order to prevent such person from illicit traffic in narcotic drugs in future.
5. On the other hand Mr.Jayant Bhushan appearing for the respondent contended that Section 37 of the NDPS Act is not a bar in the grant of bail. Detaining Authority had apprehension that petitioner could get bail in the pending case against him under the provisions of NDPS Act. That the Detaining Authority at the time of passing the order was fully aware of the fact that petitioner was in judicial custody. However, keeping in view his past conduct and his previous engagements in illicit traffic in narcotic drugs the necessity arose to pass the impugned order. As regard delay in disposal of his representation, cogent explanation has been given in para 'G' of the affidavit of Shri Ramjee Singh, Under Secretary filed on behalf of the respondents.
6. We have considered the relevant contentions raised by the counsel for the parties and perused the documents and the material placed on record. From the facts available on record, it is clear that the Detaining Authority had in mind, while passing the impugned order, that the petitioner was in judicial custody in another case under NDPS Act. This is also apparent from the reading of the impugned detention order. But the important question for consideration is whether the petitioner was likely to get released on bail. For that the respondent has admittedly not placed any material on record nor in its reply affidavit it has been mentioned as to what material was placed before the Detaining Authority on the basis of which it inferred that the petitioner was likely to be released on bail. And that after being released he was likely to be engaged in illicit traffic of narcotic drugs. It is a fact on record that the petitioner had not applied for bail. He was in judicial custody since February,1999 in a case under NDPS Act. It is also well settled principle of law that provisions of Section 37 of NDPS Act are very stringent and bails are not granted easily. In the absence of any material having been placed on record nor produced in the Court, it therefore, could not be inferred that the petitioner was likely to be released on bail. He had not applied for bail at any point of time prior to the passing of the impugned detention order. When the very hypothesis of getting bail turned out to be imaginary then he subsequent question of his indulging in or engaging in illicit traffic of narcotic drugs could not arise. Therefore, mere awareness of the Detaining Authority that the petitioner was in custody was not enough. The respondents have in fact failed to point out either from the pleadings or by producing its file to show that such material was placed before the Detaining Authority where from it could be inferred that petitioner was likely to be released on bail. In the absence of the same, the Detaining Authority's apprehension about petitioner getting released on bail was not justified. In fact in the absence of any document having been placed before us nor having placed before the Detaining Authority the apprehension of the Detaining Authority cannot be sustained. There was no material before the Detaining Authority justifying that petitioner was likely to apply for bail or was going to get bail.
7. Section 37 of the NDPS Act may not be a bar for the grant of bail as contended by Mr. Jayant Bhushan, but at the same time, we cannot loose sight of the fact that provisions Section 37 of NDPS Act are very stringent. It envisages that the bail of a person detained under NDPS Act can be granted only when the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence, and that he is not likely to commit any offence while on bail. The detenu has, therefore, to satisfy two things before his bail could be considered, namely, (i) he is not guilty and (ii) not likely to commit any offence while on bail. In the absence of establishing these two grounds the Court would not grant bail to him. Moreover, before the bail can be granted Public Prosecutor has to be given an opportunity to oppose it. No material has been placed on record to show that the petitioner had applied for any kind of bail or that was going to satisfy the Court that he was not guilty of the offence and that he would not commit any such offence while on bail. In view of the stringent provisions of Section 37 of NDPS Act, it cannot be presumed that the petitioner was likely to be released on bail on his asking. Section 37 of NDPS Act may not bar the grant of bail but the limitations imposed are so stringent that Courts have to be very cautious while granting bail. This has been so observed by the Supreme Court in the case of Union of India Vs. Merajuddin, . Hence, arguments of Mr.Jayant Bhushan that Section 37 is not a bar, therefore, Detaining Authority was apprehensive that petitioner was likely to get bail is devoid of reasons. In the absence of any material this argument cannot stand. In the absence of petitioner getting bail, no inference could be arrived that he was likely to indulge in illegal activities. The Supreme Court in the case of Dharmendra Suganchand Chelawat Vs. Union of India & ors., 1990 SCC (Crl) 249 observed that when the Detaining Authority's apprehension about the detenu's release is not shown, in that eventuality the detention order is not sustainable. Similarly the Division Bench of this Court in the case of Gurminder Singh Lalli Vs. Union of India & Ors., 1999 II AC (Delhi) 118 observed that no material was placed on record showing the reason for Detaining Authority to believe that the said petitioner Gurminder Singh Lalli was likely to be granted bail. Therefore, in the absence of any material, the detention order was quashed.
8. In the case in hand the respondents have not made any averment to the effect that any material was placed before the Detaining Authority on the basis of which it came to the conclusion that the petitioner was reasonably likely to be released on bail. No such material has been placed before us also. Neither in the grounds of detention nor in its counter affidavit any mention with regard to the material placed before the Detaining Authority on the basis of which it formed its conclusion has been made. In the absence of any material neither the detention order nor the continuance of detention of the petitioner can be sustained.
9. As regards the challenge to the impugned detention order on the ground of delay in disposal of his representation, since we have accepted the petition on the ground of double detention hence we do not consider it necessary to deal with this aspect.
10. For the reasons stated above, we hold that the continuous detention of the petitioner under Section 3(1) of PITNDPS Act,1988 has to be quashed. Order accordingly. Petitioner may be set free if not required in NDPS case or in any other case.
With these observations, petition stands disposed.