Shri Dinesh Kumar Gupta S/O Dalip ... vs The Union Of India (Uoi) Through ...
2002 Latest Caselaw 938 Del

JUDGMENT

Khan, J.

1. Petitioner was first arrested on 24.4.2001 for offences under PITNDPS Act. He was later detained by order dated 14.8.2001 passed under Section 3(1) of the Act to prevent him from engaging in possession and transportation of narcotic drugs in future. The order was served on him on 13.9.2001 against which he made a representation. His case was referred to Advisory Board on 1.10.2001 and his representation rejected on 6.11.2001 and detention order confirmed on 22.11.2001.

2. Petitioner challenges his detention on several grounds:- (i) that there was no compelling necessity for his detention. Because though detaining authority had shown awareness of his being in custody, yet he had no cogent material before him to derive satisfaction that there was a likelihood of his being released on bail, (ii) that some documents were not supplied to him within first 5 days of his detention in the language known to him nor were contents explained to him in his language, (iii) that sponsoring authority had suppressed some material like letter dated 27.4.2001 issued by SHO from the detaining authority which could have a bearing on his decision to pass the order or otherwise, and (iv) that the detention order was malafide and suffered from non-application of mind and the grounds were also vague and so on.

3. L/C for petitioner Mr. Sunil Mehta has pressed in service the first ground only. No other ground was canvassed before us by him. He submitted that petitioner had not even moved any bail application and the question of any likelihood of his being released on bail did not arise. Moreover, the stringent provisions of Section 37 made it well neigh impossible to obtain bail and as such there was no material before the detaining authority on the basis of which satisfaction could be drawn that there was a likelihood of petitioner being granted bail and thus a consequential compelling necessity to detain him. He has relied upon several judgments of Supreme Court including Binod Singh v. District Magistrate, Dhanbhad, Bihar , Dharmendra Suganchand Chelawat v. Union of India , Amritlal v. Union Government and two DB judgments of this court in Sanjay Rajender Sharma v. Union of India in Crl.W. 1204/99 and Jagdish Chander Sharma v. Union of India 2000 Crl.L.J. 3162 to show that there must be cogent material before the detaining authority to draw the inference that there was a likelihood of the detenu who was already in custody being released on bail. He also cited Intelligence Officer, Narcotics C. Bureau v. Sambhu Sonkar 2001 Crl.L.J. 1082, Union of India v. Aharwa Deen 2000 Crl.L.J. 3526, State of Madhya Pradesh v. Kajad 2001 Crl.L.J. 4240 to show that stringent conditions of Section 37 of the Act made it otherwise impossible for the accused to be enlarged on bail.

4. The Union Standing Counsel Mr. Sanjay Jain advanced a very interesting thesis to suggest that detaining authority did not need any cogent material for drawing the inference or satisfaction that there was likelihood of the accused being released on bail. Because the accused had an inherent right to apply for bail and courts had a statutory and inherent jurisdiction to grant it. Therefore, there was always a presumption in favor of likelihood of grant of bail to as accused which the detaining authority could draw without any available material before him. Even otherwise, it was open to the Authority to drawn such satisfaction from the overall material for which availability of a bail application or bail grant or rejection order was not necessary. He submitted that Section 37 did nor bar grant of bail and the accused could obtain it any time after satisfying the requirement of the provision. Therefore, the detaining authority was within his competence to drawn the requisite inference from the overall material that there was a likelihood of the detenu being released on bail.

5. The short question that arise is whether detaining authority was required to draw the necessary inference and satisfaction that a detenu already in custody was likely to be released on bail on the basis of some material or an inference could be drawn about this without such material.

6. The legal position on the issue is fairly well settled and it would be only to restate it to point out that though there was no bar in ordering detention of a person even when he was in custody, but for this it was obligatory for the Detaining Authority to show awareness of this and also the compelling necessity for detaining him despite this, be that on the ground of likelihood of his being released on bail or otherwise. If such awareness and necessity was not reflected in the detention order, it was liable to be vitiated for non-application of mind.

7. In other words, the detaining authority had to show and reflect in his order that (i) he had knowledge of detenu being in custody (ii) that there was a likelihood of his being released on bail or otherwise, (iii) that there was a likelihood of his engaging in prejudicial activity given regard to his inclination and propensity and (iv) thee was a compelling necessity to detain him despite his being in custody.

8. The Supreme Court has summarised this position in D.S. Chelawat's case in the following terms:-

"An order of detention can be validly passed against a person in custody and for that purpose it is necessary 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."

9. It is also no more res integra that the satisfaction to be drawn by the detaining authority was his subjective satisfaction but this was not beyond the pale of judicial scrutiny. Such satisfaction was necessarily to be drawn on the basis of some material. Otherwise it would be an unreal and illusory satisfaction again exposing the detention order to charge of non-application of mind and rendering it liable to be declared invalid.

10. There must, therefore, be some cogent material before the detaining authority for drawing the requisite satisfaction on whether there was a likelihood of the detenu being released on bail and there was a necessity to detain him even when he was in custody. Such material could be in the nature of bail applications moved by the detenu in the past or present, his bail pleas having been allowed or rejected, his implication in a type of offence indicating the prospect of his released and so on. If such material was not available to the detaining authority, it was not naturally possible for him to draw the requisite inference and satisfaction that there was a likelihood of the detenu being released on bail or for that matter the necessity of detaining him to prevent him from indulging in prejudicial activity in future. Because if there was no prospect of his release, his detention would not be required on this simple logic.

11. This is how the Supreme Court has viewed the issue all along in a series of judgments right from Binod Singh's case holding:-

"If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. A bald statement is merely an ipse dixit of the officer. If there was cogent materials for thinking that the detenu might be released then these should have been made apparent."

12. More recently, it has reiterated and reaffirmed this position in Amritlal's case laying down:-

"There must be cogent materials before the officer passing the detention order that the detenu is likely to be released on bail. The inference must be drawn from the available material on record and must not be the ipse dixit of the officer passing the order of detention. Likelihood of detenu's moving an application for bail is not a cogent material land detention order based on such material is liable to be quashed. The reasoning that there is "likelihood to be released on bail" is different from "likelihood of his moving an application for bail."

13. Even this court in its several judgments followed this position and had lately held in Sanjay Rajender Sharma's case as under:-

"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."

14. Mr. Sanjay Jain's submission that the accused had an inherent right to seek bail and the court had always the power to grant it and that such an inference was available to the detaining authority always appeared both appealing and attractive on the first blush. But we find no scope to accept it in the face of the settled legal position on the issue. It is true that the accused had the right to seek bail, however heinous or grave the offence and that court also enjoyed the power to grant bail even in the face of stringent conditions, if satisfied, but that would not suffice for purpose of deriving satisfaction by the detaining authority to detain a person who was already in custody. Because the authority had to derive such satisfaction on some basis. The Authority could not be left to his free will or choice to do so in the matter of preventive detention which affected the life and liberty of an individual. The authority's satisfaction has to founded and grounded on some available material. Otherwise his satisfaction would lack in basis and would be sham and farcical to render the action arbitrary.

15. It may as well be that the requisite satisfaction could be drawn by the detaining authority on the overall material before him but even so such material must indicate that there was a likelihood of the detenu being released on bail and the necessity of detaining him despite of his being in custody. Where such material also provides no clue in this regard and fell short of the requirement, it would render the satisfaction suspect and invalid straight away.

16. Having said so, we do not deem it necessary to dilate on the nature of the provisions of Section 37 of the Act for purposes of holding whether it rendered the grant of bail impossible or imposed any indirect bar on such grant. The provisions undoubtedly contains stringent conditions but that would not by any logic suggest that it places a blanket ban on the grant of bail.

17. Be that as it may, we find that there was no material, specific on general, before the detaining authority in the present case on the basis of which requisite satisfaction or inference could have been drawn that there was likelihood of the petitioner being released on bail and thus a compelling necessity for his detention. The admitted position is that the petitioner had not moved any bail application in the pending criminal proceedings against him. Nor was there anything to show on record that he had in the past obtained such bail orders or that his attempts to seek bail had come cropper or that he was involved in any minor offence in which he could be bailed out any time or for that matter discharged or acquitted. The grounds of detention also do not provide any clue about this. Therefore, it had to be assumed that there was neither any specific material nor any overall material before the detaining authority on the basis of which he could have drawn the inference or satisfaction that there was a likelihood of the detenu being released on bail and that there was necessity of detaining him despite of his being in custody. We, therefore, find not hitch in holding that detaining authority's satisfaction and action in this regard was without any basis rendering the order unsustainable.

18. On this party of reasoning, this petitioner accordingly succeeds and is allowed and impugned detention order dated 14.8.2001 is quashed.