Smt. Zaibunnisa Muttalib Ali ... vs The Union Of India (Uoi) Through ...
2003 Latest Caselaw 1290 Bom

JUDGMENT

H.L. Gokhale, J.

1. Heard Mr. Khan for the Petitioner and Mr. Salpute, Central Government Counsel, for respondent Nos. 1 to 3. Mr. Mhaispurkar, A.P.P. appears for respondent No. 4.

2. This petition seeks to challenge the order dated 25th January, 1996 passed by respondent No. 2 detaining the petitioner under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as "P.I.T.N.D.P.S. Act" for short). The petition is filed by the wife of the detenu. The petitioner was arrested at the Mumbai Airport on 28th June, 1995 on way to Canada. It was alleged against him that he was a conduit for dealing in narcotic drugs and psychotropic substances. When he was in judicial custody after this arrest, the impugned order dated 25th January, 1996 came to be passed under Section 3(1) of the P.I.T.N.D.P.S. Act which was served on the petitioner on 30th January, 1996. The petitioner all throughout remained in custody during this period of detention. He never applied for any bail and ultimately the release order was issued on 29th January, 1997. It is further material to note that as far as his prosecution in the special case under the N.D.P.S. Act is concerned, he was acquitted on 17th October, 1997. It is only thereafter that he was released.

3. This petition is filed much later in September, 2000. It is essentially for a declaration that this detention was bad and Mr. Khan is fair enough to state that the petition is filed principally for this declaration since a detention order would lead to further consequences such as forfeiture of the property derived from or used in illicit traffic under Section 68-A of the N.D.P.S. Act, 1985.

4. Mr. Khan, learned Counsel appearing for the Petitioner, has taken us through the grounds of challenge raised in the petition. In ground (vii) of para 11, the Petitioner has quoted para 21 of the impugned grounds of detention wherein it is stated that even though proceedings for prosecution under the N.D.P.S. Act, 1985 were initiated against the petitioner, the detaining authority was satisfied that "there is, compelling necessity in view of the likelihood of your granting bail and the likelihood of your indulging in illicit traffic in narcotic drugs as is evident from the trend of your activities". It is on this ground that the authority formed the opinion that it is necessary to detain the petitioner.

5. The respondents have filed reply of one Ramjee Singh, Under Secretary to the Government of India, Ministry of Finance, and in para 9 of his reply he has dealt with para 11 (vii) amongst others. Now it is material to note that this para 9 accepts that the co-accused of the detenu one Paramjeet Singh Nande had made an application for bail on 14th July, 1995 and the same was rejected by the N.D.P.S. Special Court. Yet the officer has stated in that para that the detenu could have moved the N.D.P.S. Special Court or the High Court and could have got bail on one ground or the other. Thereafter, it is stated in this para that the detenu is already involved in two incidents of drug smuggling even after conviction by the Court in U.S.A. Then it is stated that it was very likely that the detenu would have continued his drug smuggling activities in the event of being released on bail. The para states "As held by the Supreme Court, where the Detaining Authority is of the opinion that there is the possibility of release of the accused on bail, issuance of order of detention is valid".

6. Mr. Khan, learned Counsel for the petitioner, criticizes this para and submits that this subjective satisfaction of the detaining authority has to be based on objective material in this behalf. He refers to and relies upon para 19 of the judgment of the Apex Court in the case of Dharmendra Suganchand Chelawat v. Union of India which para reads as follows:-

19. The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody, he would indulge in prejudicial activities and it is necessary to detain him In order to prevent him from engaging in such activities.

7. Mr. Khan submits that as required by this judgment, which holds the field, it is not merely enough that the detenu was likely to engage into this kind of activity subsequently. Basically when a person is already in detention, the authority must have cogent material before itself to be satisfied that the detenu was likely to be released from custody in near future. Mr. Khan submits that in the present case, it is material to note that the accused was in custody under the provisions of the N.D.P.S. Act, 1985 and under Section 37 of the N.D.P.S. Act granting of bail is a near impossibility, for an accused charged for the offences under the N.D.P.S. Act, 1985. When he applies for a bail and where the Public Prosecutor opposes the application, Section 37(1)(ii) of the N.D.P.S. Act, 1985 requires the Court to be 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. Now in the facts of the present case when the accused was already convicted once in U.S. and there were two incidents wherein he was involved in India, the Court could not have come to any such conclusion that he was not likely to commit any such offence while on bail. Over and above that, the Court had to form an opinion at that stage itself that he was not guilty of the offence of which he was charged. Mr. Khan submits that this was a near impossibility. Besides, the detenu had not applied for bail at all and the bail applied by his co-accused was already rejected. Mr. Khan therefore submits that in the facts of this situation, the reasoning of the detaining authority is totally faulty and the detention order was not called for in the circumstances as laid down in Chelwat's case (supra).

8. Mr. Satpute, learned Counsel for respondent Nos. 1 to 3, on the other hand, submitted that the fact that the accused would have continued such activities subsequently was very much apparent from his antecedents. He was already involved in two incidents and was already convicted once. This being the position, though he was in custody, the detaining authority formed a bona fide opinion that it was desirable that he should be detained so that the link between him and this kind of activity gets snapped. He submits that there was no reason to interfere with the order passed.

9. We have considered the rival submissions. In our view, it is very clear that as such obtaining bail in an offence under the N.D.P.S. Act is very difficult. As far as the present facts are concerned, the accused was already convicted once in U.S. and there were two incidents wherein he was involved in India. The application of his co-accused has been rejected. When this was the material on record, there was absolutely no possibility of any Court granting bail to the petitioner. The aforesaid para in Chelawat's case requires the detaining authority to have a cogent material before it on the basis of which it may be satisfied that the detenu was likely to be released from custody in near future. When the accused had not even applied for bail, there was no question of any such opinion being formed. We are therefore of the view that the order suffers from this vice of excessiveness and the same was not called for in the circumstances of the case.

10. Hence the Petition is allowed. It is declared that the order of detention dated 25th January. 1996 passed againt the Petitioner was bad in law. The order has already been implemented as far as the detention is concerned. However, it will be considered as inoperative and non-est for all other purpose. Rule is made absolute accordingly.

11. Certified copy expedited.