Nafe Singh vs Union Of India & Others
2009 Latest Caselaw 1897 Del

        THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment delivered on: 06.05.2009

+      WP (CRL) 326/2009


RAJESH SHARMA                                               ...   Petitioner


                                   - Versus -


UNION OF INDIA & OTHERS                                     ...   Respondents

AND + WP (CRL) 384/2009

NAFE SINGH ... Petitioner

- Versus -

UNION OF INDIA & OTHERS                                     ...   Respondents


Advocates who appeared in this case:-
For the Petitioners      : Mr K.T.S. Tulsi, Sr Advocate with Mr Sanjiv Kumar,

Mr S.S. Dass, Mr S.K. Santoshi, Mr Sumit Arora and Mr Rohit Aggarwal For the Respondent No.1 : Mr P.P. Malhotra, ASG with Mr Satish Aggarwal, Mr Shirish Aggarwal, Mr Shankar Chabra For the Respondent No.2. : Ms Meera Bhatia

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE P.K. BHASIN

1. Whether Reporters of local papers may be allowed to see the judgment ? YES

2. To be referred to the Reporter or not ? YES

3. Whether the judgment should be reported in Digest ? YES

BADAR DURREZ AHMED, J

1. These petitions seeking the issuance of a writ of habeas corpus

are directed against the detention orders passed against the petitioners

in each of the petitions by the Joint Secretary to the Government of

India, Department of Revenue, Ministry of Finance, New Delhi in

purported exercise of powers conferred under Section 3(1) of the

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic

Substances Act, 1988 (hereinafter referred to as ‗the PIT-NDPS Act‖).

The detention order in the case of the petitioner Rajesh Sharma in WP

(CRL) 326/2009 was made on 27.02.2009, whereas the detention order

in respect of the petitioner Nafe Singh in WP (CRL) 384/2009 was

made on 13.03.2009.

2. Both Rajesh Sharma and Nafe Singh were arrested with other co-

accused Diwakar Gupta and Amit Kohli on 06.05.2008 on the

allegation that they had indulged in illegal trading of diazepam,

lorazepam, alprazolam, clonazepam and phenobarbitone. These are all

drugs specified in Schedule ‗H' to the Drugs and Cosmetics Rules,

1945. It is also an admitted position that they are psychotropic

substances and are specified in the Schedule to the Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter referred to as ‗the

NDPS Act'). However, these substances are not mentioned in

Schedule-I to the Narcotic Drugs and Psychotropic Substances Rules,

1985 (hereinafter referred to as ‗the NDPS Rules').

3. Both Rajesh Sharma and Nafe Singh applied for bail. Their bail

applications were rejected by the learned Special Judge, NDPS, New

Delhi on 31.10.2008. Thereafter, two of the co-accused, namely,

Diwakar Gupta and Amit Kohli filed bail applications before this court.

However, the same were sought to be withdrawn on the submission that

there was a change of circumstances, namely, that the investigation had

been completed and that the learned Special Judge had not considered

the decisions of the Supreme Court and of this court in State of

Uttaranchal v. Rajesh Kumar Gupta: 2007 (1) SCC 355 and Rajender

Gupta v. The State: 2005 III AD (Cr.) DHC 606, respectively, in the

proper perspective. Consequently, liberty was granted to the said co-

accused to move a fresh bail application before the learned Special

Judge who was directed to deal with the aforesaid judgments in the

correct perspective. The said order was of a learned Single Judge of

this court on 01.12.2008. Thereafter, the learned Special Judge, after

considering the aforesaid decisions, granted bail to the co-accused

Diwakar Gupta and Amit Kohli on 24.12.2008. This was followed by

the grant of bail to the petitioners in these writ petitions, namely,

Rajesh Sharma and Nafe Singh on 07.01.2009. On 09.02.2009, both

Rajesh Sharma and Nafe Singh alongwith other co-accused persons

entered appearance through their counsel in the applications filed by

the respondent No.2 (Narcotics Control Bureau) for cancellation of the

bail granted to the said persons. While the cancellation of bail

applications were pending before this court, the aforesaid detention

orders have been passed on the dates indicated above and both Rajesh

Sharma and Nafe Singh were taken into custody and sent to jail where

they are presently detained.

4. Mr K.T.S. Tulsi, the learned senior advocate, appearing on behalf

of the petitioners, made a three-fold submission. First of all, according

to him, the impugned orders of detention reflect total non-application of

mind inasmuch as the order granting bail to the petitioners has not been

considered in the proper perspective. He submitted that there was non-

application of mind on the part of the detaining authority to the reasons

contained in the orders granting bail to the petitioners, wherein the

judgment of the Supreme Court in the case of Rajesh Kumar Gupta

(supra) was considered. Secondly, it was contended by Mr Tulsi that

there is no basis for arriving at the satisfaction that export of the

medicines / drugs referred to above would constitute ―illicit trafficking‖

within the meaning of Section 2(e) of the PIT-NDPS Act when the said

substances were clearly covered by the exception to Section 8 of the

NDPS Act. Lastly, Mr Tulsi submitted that personal liberty is so

sacrosanct and so high in the scale of the constitutional values that it

places an obligation on the detaining authority to show that the order of

detention meticulously accords with the procedure established by law.

He submitted that what the petitioners are alleged to be doing was not

an offence under the NDPS Act and, therefore, would not be covered

by the expression ―illicit trafficking‖. Thus, according to him, the

detention orders could not have been made when the alleged act was

itself not an offence. He submitted, in the context of the seriousness of

the problem of ―illicit trafficking‖ in drugs and psychotropic

substances, that when it comes to infringement of fundamental rights,

the High Court, irrespective of the severity and gravity of the evil, has

to intervene as the gravity of evil cannot furnish sufficient reasons for

invading the personal liberty of citizens except for and in accordance

with the procedure established by law. Elaborating on these

submissions, Mr Tulsi contended that the non-application of mind by

the detaining authority is writ large on the detention order itself when,

according to the detaining authority, mere inclusion of the substances in

question in the Schedule to the NDPS Act was sufficient for making the

detention order. This is apparent from the opening paragraph of the

grounds of detention which reads as under:-

―The Narcotics Control Bureau, Delhi Zonal Unit, hereafter referred to as NCB, received information on 5.5.2008 from an Informer about a group of persons dealing in illicit smuggling of prescription drugs listed in the schedule of the Narcotic Drugs & Psychotropic Substances Act, 1985 (NDPS Act). The names of the persons intimated were (i) Shri Rajesh Sharma of Shakarpur, Delhi (ii) Shri Diwakar

Gupta (iii) Shri Amit Kohli of Krishna Nagar, Delhi (iv) Shri Ashish Nagpal (v) Shri Nafe Singh. It was intimated that the above mentioned persons were extracting orders of medicines from US based clients over Internet and these orders were being executed through courier parcels.‖ (underlining added)

It is also apparent from the following paragraph of the grounds for

detention which reads as under:-

―On 20.06.2008, the samples of drugs seized were sent to Central Forensic Science Laboratory, Hyderabad for chemical analysis. In their report dated 25.08.2008 the Laboratory reported that Clonazepam, Lorazepam, Alprazolam, Diazepam and Phenobarbitone were detected in some of the exhibits. These medicines are listed amongst the psychotropic substances in the Schedule to NDPS Act, 1985.‖ (underlining added)

5. Mr Tulsi placed strong reliance on the decision of the Supreme

Court in the case of Rajesh Kumar Gupta (supra) to contend that mere

mention of the substances in the Schedule to the NDPS Act would not

be sufficient and, to make the activity of import and export of the said

psychotropic substances illegal, it would be necessary that the said

substances also find mention in Schedule-I to the NDPS Rules, 1985.

According to him, the Supreme Court made it clear in Rajesh Kumar

Gupta (supra) that unless the drugs / psychotropic substances find

place in Schedule-I to the NDPS Rules, the provisions of Section 8 of

the NDPS Act, which contains the prohibition, would have no

application whatsoever. Consequently, mere inclusion of the said

substances in the Schedule to the NDPS Act, would by itself not be

sufficient to lead to the conclusion that import and export in them is

prohibited, particularly when it is the admitted position that they were

allopathic drugs which find mention in Schedule ‗H' of the Drugs and

Cosmetics Rules, 1945. Consequently, it was submitted that there was

no violation of the provisions of the NDPS Act and, therefore, the

activity allegedly indulged in by the petitioners could not be regarded

as ‗illicit traffic' within the meaning of Section 2 (e) of the PIT-NDPS

Act.

6. Mr P.P. Malhotra, the learned Additional Solicitor General of

India, appearing on behalf of the respondents, submitted that the

decision of the Supreme Court in the case of Rajesh Kumar Gupta

(supra) did not have any application to the facts of the present petitions

for various reasons. First of all, according to him, the said judgment

did not decide the merits of the matter as to whether the NDPS Act was

applicable or not in the case of export out of India of the psychotropic

substances mentioned in the Schedule to the NDPS Act. He also

contended that the said decision did not deal with Sections 8 and 22 of

the NDPS Act nor with Rule 58 of the NDPS Rules. Furthermore, he

submitted that the said decision arose in the context of a bail

application, under Section 37 of the NDPS Act and was not a decision

on merits. He said that from the said judgment itself, it is clear that the

Supreme Court was taking a prima facie view of the matter and, in any

event, in that case, the Supreme Court felt that because of the fact that

the accused had already been in custody for a period of more than two

years, it was not a fit case where they should exercise their

discretionary jurisdiction under Article 136 of the Constitution.

Consequently, he submitted that in Rajesh Kumar Gupta (supra), the

Supreme Court did not decide any question on merits and refused to

exercise its extraordinary jurisdiction under Article 136 of the

Constitution of India and, therefore, the said decision cannot be

considered as having settled the law.

7. With regard to interpreting various provisions of the Act and the

Rules, he submitted that it would be necessary to refer to Sections 8, 22

and 80 of the NDPS Act and Rules 53 and 58 of the NDPS Rules for

the purposes of deciding this case. The relevant portions of the said

provisions are as under:-

NDPS Act "8. Prohibition of certain operations.--No person shall--

       (a)    xxxxx      xxxxx       xxxxx      xxxxx; or
       (b)    xxxxx      xxxxx       xxxxx      xxxxx; or
       (c)    produce, manufacture, possess, sell, purchase,

transport, warehouse, use, consume, import inter- State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance,

except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:‖

xxxxx xxxxx xxxxx xxxxx xxxxx‖

―22. Punishment for contravention in relation to psychotropic substances.--Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufacturers, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substance shall be punishable,-

(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both;

(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;

(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.‖

―80. Application of the Drugs and Cosmetics Act, 1940 not barred.-- The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of the Drugs and Cosmetics Act, 1940 (23 of 1940) or the rules made thereunder.‖

NDPS Rules CHAPTER VI IMPORT EXPORT AND TRANSHIPMENT OF NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES

53. General prohibition.--Subject to the other provisions of this Chapter, the import into and export out of India of the narcotic drugs and psychotropic substances specified in Schedule I is prohibited:

Provided that nothing in this rule shall apply in case the drug substance is imported into or exported out of India subject to an import certificate or export authorisation issued under the provision of this Chapter and for the purposes mentioned in Chapter VII-A.

53-A.Prohibition on export.--(1) Subject to the provisions of sub-rule (2), no person shall export any of the narcotic drug or psychotropic substance or preparation containing any of such narcotic drug or psychotropic substance specified in Schedule II to the countries or to the region of such country specified therein.

(2) Notwithstanding anything contained in sub-rule (1) above, the Narcotics Commissioner may authorize export of specified quantities of such narcotic drug or psychotropic substance or preparation containing such narcotic drug or psychotropic substance on the basis of special import licence issued by the Competent Authority of the country mentioned in Schedule II which intends such import by way of issuance of special import licence. The shipment of the consignment so allowed shall be accompanied by a copy of such special import licence duly endorsed by the Narcotics Commissioner.‖

xxxxx xxxxx xxxxx xxxxx xxxxx

"58. Application for export authorisation.--(1) Subject to rule 53 and rule 53-A, no narcotic drugs, or psychotropic substances specified in the Schedule of the Act, shall be exported out of India without an export authorisation in respect of the consignment issued by the issuing authority in Form No.5 appended to these rules.

(2) The exporter applying for an export authorisation under sub-rule (1) shall submit,--

(a) where the export authorisation relates to narcotic drug, alongwith his application the original or an autnenticated copy of the excise permit issued by the concerned State Government; and

(b) the import certificate in original, issued by the Government of the importing country certifying the official approval of the concerned Government.

(3) The application for the export authorisation shall state such details as may be specified by the Narcotics Commissioner.‖

xxxxx xxxxx xxxxx xxxxx xxxxx

"63. Prohibition of import and export of consignments through a post office box, etc.--The import or export of consignments of any narcotic drug or psychotropic substance through a post office box or through a bank is prohibited.‖

8. Mr Malhotra submitted that on a plain reading of Section 8 of the

NDPS Act, it is clear that no person can export from India any narcotic

drug or psychotropic substance except for medical or scientific

purposes and that, too, in the manner and extent provided under the

NDPS Act or the NDPS Rules. He submitted that the manner and

extent indicated under the said Act and the Rules impose a requirement

by way of licence, permit or authorisation. Rule 58 deals with

application for export authorisation. According to him, Rule 53 deals

with psychotropic substances specified in Schedule-I to the NDPS

Rules. However, Rule 58 deals with psychotropic substances specified

in the Schedule to the NDPS Act. He submitted that no word of an Act

or the Rules could be said to be redundant. The legislature is deemed

to be aware of the language used by it in the Act. The Central

Government, in framing the NDPS Rules, is also deemed to be aware

of the distinction between the Schedule to the Act and Schedule-I to the

NDPS Rules. He submitted that the different language employed in

Rule 58 compared with that employed in Rule 53 clearly demonstrates

that Rule 58 is applicable to all the psychotropic substances mentioned

in the Schedule to the NDPS Act. Since the substances in question are

admittedly covered under the Schedule to the NDPS Act, they cannot

be exported without export authorisation granted in terms of Rule 58 of

the NDPS Rules.

9. Mr Malhotra submitted that the words of a statute have to be

given their natural meaning. If the plain and natural meaning is given

to the rules, according to him, it is clear that Rule 58 deals with the

Schedule to the NDPS Act and Rule 53 deals with Schedule-I to the

NDPS Rules. According to him, they are independent of each other

and consequently, it cannot be said that the petitioners have not

committed any offence under the Act. Mr Malhotra placed reliance on

the decision of the Supreme Court in the case of Padmasundara Rao

and Ors. v. State of Tamil Nadu and Ors.: 2002 (3) SCC 533, wherein

the Supreme Court made the following observations with regard to

interpretation of a statute:-

―12. The rival pleas regarding re-writing of statute and casus omissus need careful consideration. It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the Legislation must be found in the words used by the Legislature itself. The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed not as theorems of Euclid". Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them". (See Lenigh Valley Coal Co. v. Yensavage: 218 FR

547). The view was re-iterated in Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama: 1990 (1) SCC 277.

13. In Dr. R. Venkatchalam and Ors. etc. v. Dv. Transport Commissioner and Ors. etc.: 1977 (2) SCC 273 it was observed that Courts must avoid the danger of a priori determination of the meaning of a provision based on their own pre-conceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation.

14. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. [See Rishabh Agro Industries Ltd. v. P.N.B Capital Services Ltd.: 2000 (5) SCC 515]. The legislative casus omissus cannot be supplied by judicial interpretative process. Language of Section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in Narasimhaiah case: 1996 (3) SCC

88. In Nanjudaiah case:1996 (10) SCC 619, the period was further stretched to have the time period run from date of service of High Court's order. Such a view cannot reconciled with the language of Section 6(1). If the view is accepted it would mean that a case can be covered by not

only Clauses (i) and/or (ii) of the proviso to Section 6(1), but also by a non-prescribed period. Same can never be the legislative intent.‖

10. It was further contended by Mr Malhotra that the petitioners have

acted in violation of Section 8 of the NDPS Act inasmuch as they have

indulged in the export of psychotropic substances in contravention of

the ―manner and to the extent‖ prescribed under the NDPS Act and the

NDPS Rules. Consequently, the petitioners have made themselves

liable for punishment under Section 22 of the NDPS Act read with

Section 8 of the NDPS Act and Rule 58 of the NDPS Rules.

11. It was also contended by Mr Malhotra that the fact that the

substances in question are also mentioned in Schedule ‗H' to the Drugs

and Cosmetics Rules, 1945 would not make any difference to the case

at hand. He submitted that Section 80 of the NDPS Act made it clear

that the provisions of the NDPS Act or the NDPS Rules would be in

addition to and not in derogation of the Drugs and Cosmetics Act, 1940

or the Rules made thereunder. Similarly, Section 2 of the Drugs and

Cosmetics Act, 1940 made it clear that the provisions of that Act would

be in addition to and not in derogation of the dangerous Drugs Act,

1930 and any other law for the time being in force. Consequently, Mr

Malhotra submitted that the Drugs and Cosmetics Act, 1940 and the

NDPS Act are independent statutes and operate in different fields.

Finally, he submitted that the Supreme Court in the case of Sanjay

Kumar Kedia v. Narcotics Control Bureau and Another: 2008 (1)

JCC (Narcotics) 9 held that phentermine and butalbital were

psychotropic substances and, therefore, they fell within the prohibition

contained in Section 8 of the NDPS Act. According to Mr Malhotra,

this decision clearly overrides the judgment of the Supreme Court in

the case of Rajesh Kumar Gupta (supra) inasmuch as it unequivocally

holds that if a substance is a psychotropic substance, it is covered under

Section 8 of the NDPS Act. He also made a reference to a decision of

the Supreme Court in the case of Customs, New Delhi v. Ahmadalieva

Nodira: 2004 (3) SCC 549, which, according to him, was a decision of

a Bench comprising of three Hon'ble Judges of the Supreme Court and

would prevail over the decision in the case of Rajesh Kumar Gupta

(supra). In Ahmadalieva Nodira (supra), the recovery was in respect

of the psychotropic substance known as diazepam which was held to be

covered under the NDPS Act. Mr Malhotra also placed reliance on the

decision of the Supreme Court in the case of Ravindran @ John v.

Supdt. of Customs: 2007 (6) SCC 410. Consequently, Mr Malhotra

submitted that the present petitions ought to be rejected.

12. The detention orders, which are in question in the present writ

petitions, have purportedly been made under Section 3(1) of the PIT-

NDPS Act. The said provision reads as under:-

―3. Power to make orders detaining certain persons.-- (1) The Central Government or a State Government, or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner) that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary so to do, make an order directing that such person be detained.‖

It is apparent that a detention order is made with a view to preventing a

person from engaging in ―illicit traffic in narcotic drugs and

psychotropic substances‖. Section 2(e) of the PIT-NDPS Act defines

illicit traffic in the following manner, to the extent relevant:-

―2. Definitions.--In this Act, unless the context otherwise requires, --

       (a) xxxx          xxxx         xxxx         xxxx
       (b) xxxx          xxxx         xxxx         xxxx
       (c) xxxx          xxxx         xxxx         xxxx
       (d) xxxx          xxxx         xxxx         xxxx

(e) ―illicit traffic‖, in relation to narcotic drugs and psychotropic substances, means--

(i) Cultivating any coca plant or gathering any portion of coca plant;

(ii) cultivating the opium poppy or any cannabis plant;

(iii) engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter-State, export inter-

                   State, import into India, export from India or
                   transshipment,      of      narcotic   drugs  or
                   psychotropic substances;

(iv) dealing in any activities in narcotic drugs or psychotropic substances other than those provided in sub-clauses (i) to (iii); or

(v) handling or letting any premises for the carrying on of any of the activities referred to in sub-clauses (i) to (iv),

other than those permitted under the Narcotic Drugs and psychotropic Substances Act, 1985 (61 of 1985), or any rule or other made, or any condition of any licence, term or authoriasation issued, thereunder and includes --

(1) Financing, directly or indirectly, any of the aforementioned activities;

(2) Abetting or conspiring in the furtherance of or in support of doing any of the aforementioned activities; and xxxxx xxxxx xxxxx xxxxx‖

13. Since the alleged activity of the petitioners concerns the export of

the psychotropic substances from India on receiving orders on the

internet, it would be Section 2 (e) (iii) which would be relevant. What

is also of significance is that ‗illicit traffic' excludes export from India

of, inter alia, psychotropic substances which are permitted under the

NDPS Act or the NDPS Rules or any order made or any condition of

any, licence or authorisation thereunder.

14. It is also relevant to note Section 2(h) of the PIT-NDPS Act

which specifically provides that words and expressions used in the PIT-

NDPS Act, but not defined, and which have been defined in the NDPS

Act, would have the meanings respectively assigned to them in that Act

(i.e., the NDPS Act).

15. From the above, it is clear that if a person exports any

psychotropic substance from India other than what has been permitted

under the NDPS Act or the NDPS Rules, then he could be said to be

engaging in illicit traffic in psychotropic substances and would thus fall

within the purview of the PIT-NDPS Act. The expression

―psychotropic substances‖ has not been defined in the PIT-NDPS Act.

Consequently, in view of Section 2 (h) of the PIT-NDPS Act, the

meaning ascribed to that expression under the NDPS Act would have to

be taken. ‗Psychotropic substances' has been defined in Section 2

(xxiii) as under:-

―2. Definitions.--In this Act, unless the context otherwise requires, --

xxxxx xxxxx xxxxx xxxxx xxxxx

(xxiii) "Psychotropic substance" means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule.‖

16. In the present petitions, there is no dispute that the substances in

question are psychotropic substances within the meaning of a

psychotropic substance under Section 2 (xxiii) of the NDPS Act. All of

them find mention in the Schedule to the NDPS Act. Alprazolam is

mentioned at S.No. 30, clonazepam is mentioned at S.No.38, diazepam

is mentioned at S.No.43, lorazepam is mentioned at S.No.56 and

phenobarbitol is mentioned at S.No.69 of the Schedule to the NDPS

Act. However, these psychotropic substances do not find mention in

Schedule-I to the NDPS Rules.

17. As already pointed out, there is no dispute that the substances in

question, in which the petitioners are allegedly said to be involved in

the trade of export from India, are psychotropic substances as

understood under the NDPS Act. Consequently, they would also be

psychotropic substances within the PIT-NDPS Act in view of the above

mentioned provisions of Section 2 (h) of the PIT-NDPS Act.

18. Now, Section 8(c) of the NDPS Act stipulates that no person

shall, inter alia, export from India any psychotropic substance. This is,

however, subject to an exception which indicates that the above general

prohibition would apply except where the export from India of the

psychotropic substance is for medical or scientific purposes and ―in the

manner and to the extent‖ provided by the NDPS Act or the NDPS

Rules or orders made thereunder. In case any such provision imposes

any requirement by way of a licence, permit or authorisation, the export

has also to be in accordance with the terms and conditions of the

licence, permit or authorisation. A plain reading of this provision

indicates that there is a general prohibition of exporting any

psychotropic substance from India. However, that general prohibition

is subject to the exception indicated above. The whole issue that comes

up for consideration in these petitions is whether the allegations against

the petitioners, even if taken to be true, fall within this exception or not.

According to the petitioners, their case is clearly covered under the

exception, but according to the respondents, it is not so covered.

19. To find an answer to this question, two things have to be

determined. First of all, it has to be determined as to whether the

export would be for medical or scientific purposes. The second thing

which needs to be determined is whether such an export would be in

the manner and to the extent provided by the NDPS Act and the NDPS

Rules made thereunder. It is apparent that the manner and to the extent

is also provided in the NDPS Rules. Since we are concerned with the

export of psychotropic substances, it is Chapter VI of the NDPS Rules,

which deals with import, export and transhipment of the narcotic drugs

and psychotropic substances, which would be applicable. Rule 53,

which we have already extracted above, contains the general

prohibition that subject to the other provisions of Chapter VI, import

into and export out of India of narcotic drugs and psychotropic

substances specified in Schedule-I is prohibited provided that the said

rule would not apply in case the narcotic drug and psychotropic

substance, which is to be imported into or exported out of India, is

subject to an import certificate or export authorisation issued under the

provisions of Chapter VI and for the purposes mentioned in Chapter

VII-A. It is, therefore, clear that Rule 53 relates only to those

psychotropic substances which are specified in Schedule-I to the NDPS

Rules. The prohibition does not extend to all psychotropic substances

mentioned in the Schedule to the NDPS Act, but only to those which

are specified in Schedule-I to the NDPS Rules. The proviso to Rule 53

would only apply to the psychotropic substances specified in

Schedule- I and, therefore, the provisions of Chapter VII-A would only

be triggered if the psychotropic substances which are sought to be

imported into or exported out of India find place in Schedule-I to the

NDPS Rules.

20. Much reliance was placed by Mr Malhotra on the provisions of

Rule 58 of the NDPS Rules to submit that since this rule only mentions

psychotropic substances specified in the Schedule to the Act, no

psychotropic substance, whether mentioned in Schedule-I to the NDPS

Rules or not, could be exported out of India without an export

authorisation in respect of the consignment issued by the issuing

authority in Form No.5 appended to the NDPS Rules. It was his

contention that any psychotropic substance mentioned in the Schedule

to the Act would require export authorisation before it is exported out

of India. He submitted that the petitioners have not taken any such

authorisation and, therefore, Section 8 of the NDPS Act would be

attracted and the activity indulged in by the petitioners would clearly

fall within the zone of prohibited activities and consequently within the

four corners of ―illicit traffic in psychotropic substances‖ as understood

under the PIT-NDPS Act. We cannot agree with the submission made

by Mr Malhotra. There are several reasons for this. The first reason is

that Rule 58 of the NDPS Rules begins with the words ―subject to Rule

53 ...‖ Of course, the matter is somewhat complicated by the use of

the expression ―subject to the other provisions of this Chapter‖

appearing in Rule 53 itself. But this can be easily answered by

referring to the other rules appearing in Chapter VI of the NDPS Rules.

While Rule 58 has been specifically made subject to Rule 53, there are

other rules which have not been so subjected to the supremacy of Rule

53, such as Rule 53-A, Rule 54 and Rule 63. Moreover, an expression

of the nature - ―A subject to B‖ only signifies that where there is a

conflict between A and B, A, being ‗subject to' B, would have to

‗yield' to B. [See: South India Corp. (P) Ltd v. Secy, Board of

Revenue: AIR 1964 SC 207 = (1964) 4 SCR 280]. The expression

‗subject to' may also have the meaning ‗conditional upon' as in KRCS

Balakrishna Chetty & Sons v. State of Madras: AIR 1961 SC 1152 =

(1961) 2 SCR 736. Now, in the case of Rule 53 vis-à-vis Rule 58,

there is an added complication. While Rule 53 has to ‗yield to' the

other provisions of Chapter VI, which includes Rule 58, the latter rule

itself has been specifically made ‗subject to' Rule 53. In other words,

the general prescription that Rule 53 has to yield to the other provisions

of Chapter VI has been set at naught insofar as Rule 58 is concerned

inasmuch as Rule 58, because of the use of the expression ‗subject to

Rule 53 ...‖, has specifically been made sub-servient to Rule 53. It is

clear that the prohibition contained in Rule 53 would also apply to Rule

58. But that prohibition only extends to the psychotropic substances

mentioned in Schedule-I to the NDPS Rules and not to all psychotropic

substances mentioned in the schedule to the NDPS Act.

21. Another reason for not agreeing with the submissions made by

Mr Malhotra is that if it is accepted that any psychotropic substance

specified in the Schedule to the NDPS Act would require export

authorisation before it could be exported out of India, then it would

mean that the general prohibition contained in Rule 53 would be

rendered redundant. It is obvious that all psychotropic substances

mentioned in Schedule-I to the NDPS Rules are also included in the

Schedule to the NDPS Act, but not the other way round. This is so

because the list of psychotropic substances provided under Schedule-I

to the NDPS Rules is a sub-set of the larger list of the psychotropic

substances specified in the Schedule to the NDPS Act. If Rule 58 were

to be read in the manner suggested by Mr Malhotra, then irrespective of

the general prohibition contained in Rule 53, even those psychotropic

substances which find mention in Schedule-I to the NDPS Rules,

would be permitted to be exported out of India, of course, after an

export authorisation. But that is not the intent and meaning of the

provisions of the NDPS Act or the NDPS Rules. Rule 53 clearly

prohibits export out of India of only psychotropic substances specified

in Schedule-I. Rule 58 has been made subject to Rule 53 and would,

therefore, be sub-servient to it. Consequently, Rule 58 cannot permit

something which has been prohibited by Rule 53. It is, therefore, clear

that Rule 58 would only apply to those psychotropic substances

specified in the Schedule to the NDPS Act which do not find mention

in Schedule-I to the NDPS Rules. In other words, Rule 58 only applies

to those psychotropic substances, the export of which has not been

banned or prohibited under Rule 53 of the NDPS Rules. The next thing

which requires consideration is whether the substances in question can

be regarded as being used for medical or scientific purposes. It is clear

that these substances are covered in Schedule ‗H' to the Drugs and

Cosmetics Rules, 1945 and consequently, they are used for medical

purposes. As pointed out in Rajesh Kumar Gupta (supra), once the

drugs are said to be used for medicinal purposes, it cannot be denied

that they are acknowledged to be drugs which would come within the

purview of the expression ―medicinal purposes‖.

22. We are now left to consider the decisions cited by the counsel for

the parties. The first and most important decision which needs

consideration is that of Rajesh Kumar Gupta (supra). In that decision,

the accused was an Ayurvedacharya and the allegation against him was

that in the medicines supplied by him, he had been using unlabelled

tablets containing psychotropic substances and thereby making the

unsuspecting patients addicted to drugs. His clinic and premises were

raided and about 70 kgs of pure phenobarbitone was recovered. The

accused therein was allegedly despatching the said drugs by post also.

Charges had been framed against him under Sections 8 and 22 of the

NDPS Act. His application for bail before the Special Judge was

dismissed. However, the High Court granted him bail and it was

against the said grant of bail that the State of Uttaranchal preferred the

Special Leave Petition before the Supreme Court. The High Court, in

that case, was of the opinion that the substance in question, i.e.,

phenobarbitone was not listed in Schedule-I to the NDPS Rules and,

therefore, the accused could not be said to have committed any offence

under Section 8 read with Section 22 of the NDPS Act. In this

connection, the Supreme Court analysed various provisions of the

NDPS Act and the NDPS Rules, including Sections 8 and 22 of the

NDPS Act and Rule 53 of the NDPS Rules. While construing the

prohibition contained in Section 8 of the NDPS Act, the Supreme Court

observed as under:-

―... The said provision contains an exception which takes within its fold all the classes of cases preceding thereto. Use of the contraband for medical or scientific purposes is, therefore, excluded from the purview of the operation thereof. However, such exception carved out under the

1985 Act specifically refers to the manner and to the extent provided by the provisions of the 1985 Act or the rules or orders made thereunder.‖

23. The Supreme Court specifically observed that it had not been

brought to their notice that the NDPS Act provided for the manner and

extent of the passion of the contraband. The NDPS Rules, however,

provided for both the manner and the extent, inter alia, of production,

manufacture, possession, sale, purchase, transport, import, export, etc.

of the contraband. In this connection, the Supreme Court considered

the provisions of Chapters VI and VII of the NDPS Rules in the

following manner:-

―... Chapter VI of the 1985 Rules provides for import, export and transshipment of narcotic drugs and psychotropic substances. Rule 53 contains general prohibition in terms whereof the import and export out of India of the narcotic drugs and psychotropic substances specified in Schedule-I appended thereto is prohibited.

Such prohibitions, however, is subject to the other provisions of the said Chapter. Rule 63 to which our attention has been drawn specifically prohibits import and export of consignments through a post office box but keeping in view the general provisions contained in Rule 53 the same must be held to apply only to those drugs and psychotropic substances which are mentioned in Schedule-I of the Rules and not under the 1985 Act. Similarly, Chapter VII provides for psychotropic substances. Rule 64 provides for general prohibition. Rules 53 and 64, thus, contain a genus and other provisions following the same under the said Chapter are species thereof. This we say in view of the fact that whereas Rule 64 provides for general prohibition in respect of sale, purchase, consume or use of the psychotropic substances specified in Schedule-I, Rule 65 prohibits manufacture of psychotropic substances; whereas Rule 66 prohibits possession, etc. of psychotropic substances and Rule 67 prohibits transport thereof. Rule

67-A provides for special provisions for medical and scientific purposes. ...‖ (underlining added)

Importantly, the Supreme Court, after a survey of the relevant

provisions of the NDPS Rules, observed:-

―The general provisions contained in both Rules 53 and 64, therefore, refer only to the drugs and psychotropic substances specified in Schedule-I. It is neither in doubt nor in dispute that whereas the Schedule appended to the 1985 Act contains the names of a large number of psychotropic substances, Schedule-I of the Rules prescribes only 35 drugs and psychotropic substances.‖

24. Referring to the facts of the case, the Supreme Court noted that it

was not in dispute that the medicines seized from the clinic of the

accused therein fell within the purview of Schedules ‗G' and ‗H' of the

Drugs and Cosmetics Act. It was also not in dispute that the same were

mentioned in the Schedule to the NDPS Act, but did not find place in

Schedule-I appended to the NDPS Rules. In this context, the Supreme

Court made a categorical observation as under:-

―... If the said drugs do not find place in Schedule I appended to the Rules, the provisions of Section 8 of the 1985 Act would have no application whatsoever. Section 8 of the 1985 Act contains a prohibitory clause, violation whereof leads to penal offences thereunder.‖

The Supreme Court further observed that:-

―In view of the fact that all the drugs being Item No. 1, 2, 3, 4, 6 & 7 being allopathic drugs mentioned in Schedules G and H of the Drugs and Cosmetics Act indisputably are used for medicinal purposes. Once the drugs are said to be

used for medicinal purposes, it cannot be denied that they are acknowledged to be the drugs which would come within the purview of description of the expression "medicinal purposes".

Consequently, the Supreme Court was of the view that inasmuch as the

NDPS Act would in itself not apply, Section 37 thereof would, prima

facie have no application in view of the exception contained in Section

8 thereof read with the NDPS Rules. Resultantly, the Supreme Court

declined to interfere with the order of the High Court granting bail.

25. There is no denying that the above decision was rendered in the

context of an order granting bail and when the Supreme Court was

considering as to whether it should exercise its jurisdiction under

Article 136 of the Constitution of India to interfere with the order

passed by the High Court. But that does not enable us to detract from

the position that the Supreme Court, while considering the question, did

examine the relevant provisions of the NDPS Act and the NDPS Rules

and came to the conclusion that if the drugs did not find place in

Schedule-I appended to the Rules, the provisions of Section 8 of the

NDPS Act would have no application whatsoever. This, of course, was

in the context of phenobarbitone which was also a Schedule ‗H' drug

under the Drugs and Cosmetics Rules, 1945. Mr Malhotra, as pointed

out above, wanted us to ignore this decision because, according to him,

it did not lay down the law or settle the issue inasmuch as the Supreme

Court was only concerned with a bail order and consequently was

required to take a prima facie view. We are not impressed by this

argument advanced by Mr Malhotra. The aforementioned detailed

narration concerning the said decision indicates that the Supreme Court

had specifically gone into the issue and had interpreted the provisions

of the NDPS Act as well as the NDPS Rules. Mr Malhotra, the learned

ASG, is asking us to shut our eyes to the clear dictum of the Supreme

Court which is before us in black and white. We cannot do that. The

Constitutional scheme of things which sets out the judicial hierarchy

does not permit us to do that. Mr Malhotra submitted that the

observations in Rajesh Kumar Gupta (supra) are in the nature of obiter

dicta and do not constitute the ratio of the sad decision. As pointed out,

we do not agree with this submission of Mr Malhotra. In Director of

Settlements A.P. and Others v. M.R. Apparao and Another: 2002 (4)

SCC 638, the Supreme Court pointed out that an obiter dictum as

distinguished from the ratio decidendi is an observation by court on a

legal question suggested in a case before it but not arising in such

manner as to require a decision. In the present case, the Supreme Court

made the observations with regard to a legal question as it was

necessary for the Supreme Court to examine and to come to a

conclusion. It is not as if these observations were made by the way.

They were essential for ascertaining the true and correct legal position.

Insofar as the law is concerned, the Supreme Court considered the same

in Rajesh Kumar Gupta (supra) and gave its conclusive verdict

thereon. The decision was prima facie not on a point of law, but on the

question of facts.

26. In any event, an obiter dictum of the Supreme Court is normally

considered to be binding on the High Courts in the absence of a direct

pronouncement on that question elsewhere by the Supreme Court. This

is exactly what was held by the Supreme Court in Oriental Insurance

Company Limited v.Meena Variyal & Others: 2007 (5) SCC 428.

Furthermore, even if the observations were to be regarded as obiter

dicta, as pointed out in Commissioner of Income-tax, Hyderabad-

deccan v. Vazir Sultan & Sons: 1959 Supp (2) SCR 375, the obiter

dicta of the Supreme Court are entitled to considerable weight. The

same view is expressed by the Supreme Court in Director of

Settlements, A.P. v. M.R. Apparao (supra) where the Supreme Court

observed:-

―Such an obiter may not have a binding precedent ..... , but it cannot be denied that it is of considerable weight.‖

27. In State of Haryana v. Ranbir @ Rana: 2006 (5) SCC 167, the

Supreme Court held:-

―A decision, it is well-settled, is an authority for what it decides and not what can logically be deduced therefrom. The distinction between a dicta and obiter is well known. Obiter dicta is more or less presumably unnecessary to the decision. It may be an expression of a view point or sentiments which has no binding effect. See Additional

District Magistrate, Jabalpur etc. v. Shivakant Shukla etc. 1976 (2) SCC 521. It is also well-settled that the statements which are not part of the ratio decidendi constitute obiter dicta and are not authoritative. [See Division Controller, KSRTC v. Mahadeva Shetty and Anr.: 2003 (7) SCC 197.‖

28. From these decisions, it is clear that, in the first place, the

observations with regard to the provisions of the NDPS Act and the

NDPS Rules in Rajesh Kumar Gupta (supra) cannot be construed as

obiter dicta. This is so because the discussion and conclusion with

regard to the said provisions as appearing in Rajesh Kumar Gupta

(supra) cannot be regarded as unnecessary to the decision.

29. Secondly, even if we assume for the sake of argument that the

observations are in the nature of obiter dicta, they are normally binding

on the High Courts in the absence of any direct pronouncement on that

question by the Supreme Court. There is no other direct

pronouncement of the Supreme Court on this issue and, therefore, even

if the observations are regarded as obiter dictum, they would be binding

on this court.

30. Thirdly, apart from this, even if it is assumed that the

observations of the Supreme Court in Rajesh Kumar Gupta (supra) are

not binding on us, the said observations will, in the least, be required to

be construed as having considerable weight and of great persuasive

value. We are in full agreement with the observations of the Supreme

Court and are indeed persuaded by the line of though adopted in the

said decision in Rajesh Kumar Gupta (supra). Thus, viewed from any

angle, the submission of Mr Malhotra to ignore the decision of the

Supreme Court in Rajesh Kumar Gupta (supra), deserves rejection.

31. It is true that the interplay between Rules 53 and 58 of the NDPS

Rules was not considered in Rajesh Kumar Gupta (supra). However,

the general principles indicated above would apply. In any event, we

have already analysed the interplay between these provisions and have

indicated that Rule 58 of the NDPS Rules is sub-servient to Rule 53.

Consequently, Rule 58 would only come into play in respect of

psychotropic substances which are listed in the Schedule to the NDPS

Act but do not find mention in Schedule-I to the NDPS Rules. It is for

this reason that Rule 58 only refers to the psychotropic substances

mentioned in the Schedule to the Act because those psychotropic

substances which find mention in Schedule-I to the NDPS Rules are

clearly prohibited and for which no authorisation can be granted

whatsoever.

32. As indicated above, Mr Malhotra had placed reliance on the

decision of the Supreme Court in Ahmadalieva Nodira (supra) and had

submitted that this decision being that of a Bench comprising of three

Hon'ble Judges of the Supreme Court would override the decision in

Rajesh Kumar Gupta (supra) which was rendered by a Bench

comprising of only two Hon'ble Judges of the Supreme Court. First of

all, there is nothing in this decision which contradicts what has been

considered and settled in Rajesh Kumar Gupta (supra). In

Ahmadalieva Nodira (supra), the provisions of the NDPS Rules were

not even considered nor was the issue of Schedule-I to the NDPS Rules

in contrast to the psychotropic substances mentioned in the Schedule to

the NDPS Act discussed. Secondly, and in any event, the said decision

in Ahmadalieva Nodira (supra) was noticed and considered in Rajesh

Kumar Gupta (supra) and with regard to the said decision, the

Supreme Court in Rajesh Kumar Gupta (supra) specifically observed

that:-

―This Court, however, in the said decision was not concerned with the construction of Section 8 of the 1985 Act. It does not and did not lay down a law that although the provisions of the 1985 Act shall prima facie not apply, no bail can be granted.‖

These observations make it clear that there is nothing in the decision in

Ahmadalieva Nodira (supra) which will enable us to detract from the

clear observations of the Supreme Court in Rajesh Kumar Gupta

(supra). Consequently, the decision in Ahamadalieva Nodira (supra)

is of no use to the respondents.

33. The decision in Sanjay Kumar Kedia (supra) will also not come

to the aid of the respondents. While it is true that in that case, the

accused were allegedly running an internet pharmacy and were dealing

with prescription drugs like phentermine and butalbital, there is no

discussion in the context of the exception contained in Section 8 of the

NDPS Act and the provisions of the NDPS Rules. As such, that

decision would not apply to the circumstances which arise before us in

the present writ petitions.

34. Similar is the case with the decision of the Supreme Court in

Ravindran @ John (supra). Merely because the said decision deals

with the case of diazepam, it cannot be construed to lay down a law

different from what had been set down in Rajesh Kumar Gupta

(supra). This is so because none of the provisions of the NDPS Rules

were considered in Ravindran @ John (supra). More importantly, the

distinction between psychotropic substances mentioned in the Schedule

to the NDPS Act and those mentioned in Schedule-I to the NDPS Rules

was not before the Supreme Court in Ravindran @ John (supra).

35. From the aforesaid discussion, it is apparent that even if it is

assumed that the petitioners were exporting the psychotropic

substances in question, after receiving orders over the internet, it

cannot be said with any degree of definiteness that they were indulging

in ‗illicit traffic of psychotropic substances' as understood in the

context of Section 3(1) of the PIT-NDPS Act. There are clear

indications that the export of the psychotropic substances in question,

not being part of Schedule-I to the NDPS Rules, would per se not

amount to an activity prohibited under the NDPS Act read with the

NDPS Rules. In the worst, from the standpoint of the petitioners, the

question as to whether their alleged activity falls within the expression

―illicit traffic‖ would be a debatable one. It is obvious that where it is a

clear case that the alleged activity, even if taken to be established

against the petitioners, does not amount to illicit traffic, there is no

question of maintaining the detention orders. But, even if the issue is

debatable as to whether the activities of the petitioners fall within the

expression ―illicit traffic‖, we feel that a detention order would still not

be a prophylactic which would be available to the executive under the

Constitutional regime. The reason is obvious. Personal liberty is a

hallowed right of any person. It cannot be taken away when the very

act which is sought to be prevented cannot definitely be classified as an

illegal or prohibited act falling within the expression ―illicit traffic in

psychotropic substances‖. We, therefore, feel that the detention orders

ought to be set aside.

36. We make it clear that we are not at all giving a stamp of approval

to the activities allegedly undertaken by the petitioners. If it is

established that the petitioners did indulge in such activities, in the

least, they have violated the provisions of the Drugs and Cosmetics

Act, 1940 and the Drugs and Cosmetic Rules, 1945. They shall have to

suffer the consequences for that. They can even be prevented from

continuing with the activities by the authorities under that Act. But that

does not enable or empower the executive to invoke PIT-NDPS Act

and take away the liberty of the individuals as a preventive measure.

Preventive detention is not punitive detention. It is not by way of a

punishment. Therefore, any such detention has to be viewed with great

circumspection because the liberty of an individual is taken away even

before he is found guilty of having committed an offence by a court of

law. The safeguards are built into the Constitution as well as the

enactments which deal with preventive detention. The courts of law

have also laid down various principles dealing with preventive

detention and the courts have always lent in favour of liberty and

against the deprivation of liberty without good cause. The deprivation

of liberty by way of preventive detention has only been permitted when

the executive has made out a clear and undisputable case for it within

the parameters prescribed by the Constitution of India. In this

connection, it would be instructive to quote the observations of a

Constitution Bench of the Supreme Court in Kamlesh Kumar

Ishwardas Patel v. Union of India and Others: (1995) 4 SCC 51 as

under:-

―49. At this stage it becomes necessary to deal with the submission of the learned Additional Solicitor General that some of the detenues have been indulging in illicit smuggling of narcotic drugs and psychotropic substances on a large scale and are involved in other anti-national activities which are very harmful to the nature of the activities of the detenues the cases do not justify interference with the orders of detention made against them. We are not unmindful of the harmful consequences of the activities in which the detenues are alleged to be involved. But while discharging our constitutional obligation to enforce the fundamental rights of the people, more especially the right to personal liberty, we cannot allow ourselves to be influenced by these considerations. It has been said that history of liberty is the history of procedural safeguards. The framers of the Constitution, being aware that preventive detention involves a serious encroachment on the right to personal liberty, took care to incorporate, in Claues (4) and (5) of Article 22, certain minimum safeguards for the protection of persons sought to be preventively detained. These safeguards are required to be "jealously watched and enforced by the Court". Their rigour cannot be modulated on the basis of the nature of the activities of a particular person. We would, in this context, reiterate what was said earlier by this court while rejecting a similar submission:

‗May be that the detenu is a smuggler whose tribe (and how their numbers increase!) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of Preventive Detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at'‖ least those safeguards are not denied to the detenues.‖

37. The following observations of the Supreme Court in Kundanbhai

Dulabhai Shaikh v. Distt Magistrate Ahemadabad and Others: 1995

(3) SCC 194 are also apposite:-

―25. Black marketing is a social evil. Persons found guilty of economic offences have to be dealt with a firm hand, but when it comes to fundamental rights under the Constitution, this Court, irrespective of enormity and gravity of allegations made against the detenu, has to intervene as was indicated in Mahesh Kumar Chauhan alias Banti v. Union of India and Others: 1990(3) SCC 148, in which it was observed that the gravity of the evil to the community resulting from anti-social activities cannot furnish sufficient reason for invading the personal liberty of a citizen, except in accordance with the procedure established by law particularly as normal penal laws would still be available for being invoked rather than keeping a person in detention without trial.‖

38. In view of the foregoing discussion, we allow the writ petitions

and set aside the impugned detention order dated 27.02.2009 in the case

of the petitioner Rajesh Sharma in WP(CRL) 326/2009 and the order

dated 13.03.2009 in the case of the petitioner Nafe Singh in WP(CRL)

384/2009. The respondents are directed to release the petitioners

forthwith. The writ petitions stand disposed of. There shall be no order

as to costs.

BADAR DURREZ AHMED, J

P.K. BHASIN, J May 06, 2009 dutt