Diwakar Gupta & Anr. vs Union Of India & Anr.
2009 Latest Caselaw 2249 Del

        THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment delivered on: 25.05.2009

+      W.P.(CRL) 383/2009


DIWAKAR GUPTA & ANR.                                       ..... Petitioners

                                  - Versus -


UNION OF INDIA & ANR.                                      .....Respondents

Advocates who appeared in this case:-

For the Petitioners : Mr Sanjiv Kumar with Mr S. S. Das, Mr Gaurav Bhargava, Mr S. K. Santosh, Mr Arjun Mahajan and Mr Sumit Arora For the Respondents : Mr P.P. Malhotra, ASG with Mr Satish Aggarwal, Mr Shirish Aggarwal

CORAM:-

HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON'BLE MR. JUSTICE AJIT BHARIHOKE

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 (ORAL)

1. This is a writ petition challenging detention orders in respect of

the petitioners at the pre-execution stage. It is an admitted position that

virtually identical detention orders have been issued against co-accused

Rajesh Sharma and Nafe Singh. The present petition pertains to the

detention orders in respect of Diwakar Gupta and Amit Kohli.

2. Insofar as Rajesh Sharma and Nafe Singh are concerned, they had

also filed writ petitions challenging their respective detention orders.

Those writ petitions were numbered as WP(Crl) 326/2009 and WP(Crl)

384/2009 respectively. Those writ petitions have been disposed of by a

judgment delivered by this Court on 06.05.2009. The result of the said

writ petitions was that the impugned detention orders therein were set

aside and the petitioners therein, namely, Rajesh Sharma and Nafe

Singh, who had been taken into custody pursuant to the detention

orders, were directed to be released forthwith.

3. Those petitions as well as the present writ petitions pertain to the

allegation that the petitioners herein as well as Rajesh Sharma and Nafe

Singh had indulged in illegal trading of diazepam, lorazepam,

alprazolam, clonazepam and phenobarbitone. Consequently, this was

construed by the detaining authority as falling within the expression

„illicit traffic‟ as defined in the Prevention of Illicit Traffic in Narcotic

Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to

as „the PIT-NDPS Act‟). It is an admitted position that the above

substances 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‟). In the said decision of Rajesh Sharma and Nafe Singh,

this Court examined in detail the submissions made by the learned

counsel for the parties as also the relevant case law on the subject and

came to the conclusion that export of the aforesaid substances did not

amount to illicit traffic in narcotic drugs and psychotropic substances

and, therefore, the detention orders under Section 3(1) of the PIT-

NDPS Act could not have been passed. Consequently, those orders

were set aside.

4. The counsel for the parties agree that the fact situation in the

present writ petition and those obtaining in Rajesh Sharma and Nafe

Singh are virtually identical. The only difference being that in the

cases of Rajesh Sharma and Nafe Singh they had been served with the

detention orders and their writ petitions were filed post-execution. In

the present writ petition, however, the detention orders have not been

served on Diwakar Gupta and Amit Kohli for one reason or the other.

Consequently, the present petition is at the pre-execution stage.

5. The learned counsel for the petitioners referred to the decision of

the Supreme Court in the case of Deepak Bajaj v. State of

Maharashtra and Anr.: 2008 (14) Scale 62. In the said decision, the

Supreme Court categorically observed as under:-

"If a person against whom a prevention detention order has been passed can show to the Court that the said detention order is clearly illegal why should he be compelled to go to jail? To tell such a person that

although such a detention order is illegal he must yet go to jail though he will be released later is a meaningless and futile exercise."

The said decision in Deepak Bajaj (supra) also explained the earlier

decision of the Supreme Court in the case of Additional Secretary to

the Government of India & Ors. v. Smt. Alka Subhash Gadia and

Anr.: 1992 Supp (1) SCC 496 by observing that the five grounds

mentioned in the latter decision for challenging a detention order at the

pre-execution stage were not exhaustive but illustrative.

6. Taking into consideration the fact that in virtually identical cases

of the co-accused Rajesh Sharma and Nafe Singh and the decision of

this Court finding the detention orders to be illegal, it would, in view of

the decision of the Supreme Court in Deepak Bajaj (supra), be futile to

tell the petitioners herein that although the detention order is illegal

they must yet go to jail though they would be released later on in view

of the decision in Rajesh Sharma and Nafe Singh. Consequently, we

direct that the detention orders in the case of the present petitioners, for

the same reasons as in the case of Rajesh Sharma and Nafe Singh, be

set aside. Those detention orders shall not be given any effect to.

7. Before parting with this case, we would like to point out that

initially none of the detention orders in respect of the petitioners had

been placed on record. Subsequently, the petitioners had placed copies

of the detention orders on record. The learned Additional Solicitor

General had raised an objection as to how the petitioners came upon

such detention orders when they had not yet been served with the same.

When the matter came up for hearing on 18.05.2009, Mr Tulsi, the

learned senior counsel appearing on behalf of the petitioners, stated that

there would be no difficulty in explaining the circumstances under

which the petitioners obtained copies of the detention orders and that an

affidavit to the same effect would be filed. We find that an affidavit

has been filed and it gives some kind of an explanation. We are not

commenting upon the explanation given in the said affidavit and leave

it to the respondents to enquire into and investigate the said

circumstances.

The writ petition stands disposed of.

BADAR DURREZ AHMED, J

AJIT BHARIHOKE, J MAY 25, 2009 SR