Delhi High Court
Farukh @ Chapta vs Union Of India & Anr. on 30 April, 2024
Author: Suresh Kumar Kait
Bench: Suresh Kumar Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 10.04.2024
Judgment delivered on: 30.04.2024
+ W.P.(CRL) 240/2023
FARUKH @ CHAPTA ..... Petitioner
versus
UNION OF INDIA & ANR. ..... Respondents
Memo of Appearance
For the Petitioner: Mr. U.A. Khan, Mr. Shahrukh Khan and Mr. Tushar
Upadhyaya, Advocates.
For the Respondents: Mr. Amit Tiwari, CGSC for UOI. Ms. Nandita Rao,
ASC (Crl) for State with Insp. Manmohan Yadav, PS
Seema Puri.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
HON'BLE MR. JUSTICE MANOJ JAIN
MANOJ JAIN, J
1. Detenu seeks quashing of detention order1 and confirmation
order2.
2. Let us first take note of the background facts which resulted in
passing of the aforesaid detention order.
3. The Sponsoring Authority i.e. Deputy Commissioner of Police,
District Shahdara, Delhi presented before the Detaining Authority, the
Detention Order No. U-11011/18/22-PITNDPS passed on 16.09.2022 by the Joint Secretary, Govt. of India
u/s 3 (1) of Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substance (PITNDPS) Act, 1988
Confirmation Order No. U-11012/16/22- PITNDPS passed on 07.12.2022 by the Director, Govt. of India u/s
9 (f) of Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substance (PITNDPS) Act, 1988
details of the cases in which detenu was already involved. As far as
cases under Narcotic Drugs & Psychotropic Substances Act, 1985 (in
short NDPS Act) are concerned, detenu was reported to have following
three involvements: -
S. No. FIR No. Under Section Police Station Quantity of Date of
Recovered Arrest
Contraband
1 135/16 20 NDPS Act Nand Nagari, Delhi 37 kgs ganja 10.02.2016
2 3/20 20 NDPS Act Seema Puri, Delhi 4.6 kgs ganja 01.01.2020
3 46/21 20 NDPS Act Shahdara, Delhi 23.5 kgs ganja 09.02.2021
4. While passing the aforesaid detention order, concerned
detaining authority noted the details of the aforesaid three cases as well
as about his complicity in other cases under Indian Penal Code.
5. As regards the aforesaid three cases under NDPS Act, it needs to
be highlighted that in case FIR No. 135/2016, though the accused was
allegedly found in possession of 37 kgs ganja but he was acquitted way
back on 29.08.2019. In the second case, detenu and his co-accused
were booked for being found in possession of 4.6 kgs ganja. The
detenu was, however, directed to be released on bail on 12.03.2020,
though said case was pending trial when the detention order was
passed. As regards third case, accused had been arrested on 09.02.2021
for being found in possession of commercial quantity. It was also
pending adjudication though detenu was released on interim bail for a
short period. Importantly, the detention order was passed during his
such interim release only. Thus, actually speaking, there were only two
pending cases against the detenu. In one, he was on regular bail and in
the other he was in custody, though, at the relevant time, he had been
given interim bail for 10 days only.
6. Detaining authority also took note of the fact that besides the
aforesaid three cases of illicit trafficking of contraband, detenu was
tangled in other IPC matters. All such cases related to PS Seema Puri,
Delhi and the details thereof have been mentioned in the detention
order. These are as under: -
S. No. FIR No Sections Police Station
1 219/2010 307/324/34 IPC Seema Puri, Delhi
2 763/2013 307/34 IPC Seema Puri, Delhi
3 578/2014 186/353/332 IPC Seema Puri, Delhi
4 840/2015 307/34 IPC Seema Puri, Delhi
5 672/2015 392/397/34 IPC Seema Puri, Delhi
6 352/2009 25/54/59 Arms Act Seema Puri, Delhi
7. Though the above-said cases had been allegedly registered
against the detenu, it seems that the Detaining Authority was not even
briefed as to what was the status of all such cases - whether these were
pending trial or disposed of or whether the detenu was in custody in
such cases or not.
8. Be that as it may, detaining authority passed the detention order
while observing as under: -
".............
3. In view of the facts mentioned above, I have no hesitation in
arriving at the conclusion that you i.e. Farooq @ Chapta through
your above acts engaged yourself in prejudicial activities of illicit
traffic of narcotics and psychotropic substances, which poses serious
threat to the health and welfare not only to the citizens of this
country but to every citizen in the world, besides deleterious effect
on the national economy. The offences committed by you i.e. Farooq
@ Chapta are so interlinked and continuous in character and are of
such nature that these affect security and health of the nation. The
grievous nature and gravity of offences committed by you i.e. Farooq
@ Chapta in a well-planned manner clearly establishes your
continued propensity and inclination to engage in such acts of
prejudicial activities. Considering the facts of the present case
mentioned in foregoing paras, I have no hesitation in arriving at the
conclusion that there is ample opportunity for Farooq @ Chapta i.e.
you to repeat the above serious prejudicial acts. Hence, I am
satisfied that in the meantime you i.e. Farooq @ Chapta should be
immobilized and there is a need to prevent you i.e. Farooq @
Chapta from engaging in such illicit traffic of narcotic drug and
psychotropic substances in future by detention under section 3(1) of
the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances (PITNDPS) Act, 1988.
4. In view of the overwhelming evidences discussed in foregoing
paras, detailing how you i.e. Farooq @ Chapta have indulged in
organizing the illicit trafficking of Narcotics Drugs and
Psychotropic Substances as well as have a high propensity to engage
in this illicit activity, it is conclusively felt that if you are not
detained under section 3(1) of the PITNDPS Act, 1988, you i.e.
Farooq @ Chapta would continue to so engage yourself in
possessing, purchase, sale, transportation, storage, use of narcotics
and psychotropic substances illegally and handling the above
activities, organizing directly in the above activities and conspiring
in furtherance of above activities which amount to illicit trafficking
of psychotropic substances under section 2(e) of the Prevention of
Illicit Traffic in Narcotic Drugs and Psychotropic Substances
(PITNDPS) Act, 1988 in future also. I am, therefore, satisfied that
there is full justification to detain you i.e. Farooq @ Chapta under
section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988 with a view to preventing you i.e.
Farooq @ Chapta from engaging in above illicit traffic of narcotics
and psychotropic substances specified under schedule to the NDPS
Act, 1985.
5. Considering the magnitude of the operation, the chronicle
sequence of events, the well-organized manner in which such pre-
judicial activities have been carried on, the nature and gravity of the
offence, the consequential extent of investigation involved including
scanning/ examination of papers, formation of grounds, I am
satisfied that the nexus between the dates of incident and passing of
the Detention Order as well as object of your detention has been
well maintained.
9. The Central Advisory Board also came to the conclusion that
there was sufficient cause for such detention. Accordingly, detention
order was confirmed and it was directed that detenu be detained for a
period of one year to be reckoned from 17.09.2022.
10. Clearly, the aforesaid period of one year has already elapsed.
11. Mr. U.A. Khan, learned counsel for petitioner/detenu has
contended that detaining authority has passed the detention order on
totally non-existing and vague grounds and also without recording its
subjective satisfaction. Prime contentions, inter alia, are as under: -
(i) Detenu was already in custody and there was nothing
before the detaining authority which could have even remotely
suggested that despite the fact that he was in custody, there was
compelling reason to detain him.
(ii) There was nothing to indicate that there was any
likelihood of his being released him in near future and that after
his such release, he would indulge in prejudicial activities.
Detenu was already running in custody in case FIR No. 46/2021
PS Shahdara and there was no chance of his getting released in
the above matter in view of the bar contained under Section 37
of NDPS Act and despite knowing the above fact, the detaining
authority has not even attempted to elucidate as to what
compelled it to pass such order.
(iii) Detaining authority has given unnecessary and
unwarranted weightage to FIR No. 135/2016 PS Nand Nagari
despite knowing fully that in the said case, detenu was acquitted
in the year 2019. Moreover, the order of such acquittal would
clearly indicate that acquittal was not on the ground of „not
proved beyond reasonable doubt‟ but it was because of the fact
that there was false and frivolous accusation and the detenu had
been falsely implicated by the police. So much so, the
concerned DCP was directed by learned Trial Court to hold
inquiry against such police officials and to take appropriate
action against them.
(iv) Detenu was arrested in the third case on 09.02.2021 and
was running in continuous judicial custody and detaining
authority has not explained as to how, despite his being behind
bars for more than 18 months, there was any chance of his
indulging in such activities.
(v) The detention order is ostensibly motivated. In the third
case i.e. FIR No. 46/2021, the detenu had sought interim bail on
the ground of illness of his wife and when he was on interim bail
for a period of 10 days upto 22.09.2022, the present detention
order was passed on 16.09.2022 so that he is immediately sent
behind the bars. Such order was, therefore, passed merely to
frustrate said judicial order.
12. It is thus claimed that the impugned orders be quashed.
13. Reliance has also been placed upon the judgments viz. Pramod
Singla Vs. Union of India & Ors.3, Sama Aruna Vs. State of Telengana
& Anr.4, Dharmendra Suganchand Chelawat & Anr. Vs. UOI & Ors. 5,
Ramlal Ratanlal Anjana Vs. UOI & Ors.6, Amritlal & Ors. Vs. Union
Govt. through Secretary Ministry of Finance & Ors.7 and Ramesh
Yadav Vs. District Magistrate, Etah & Ors.8
14. Detention order has been defended by the respondents.
15. It is contended that as per Statement of Reasons and Objects of
the Prevention of Illicit Trafficking in Narcotics Drugs and
Psychotropic Substances Act, 1988, order of detention needs to be
passed where any person is found indulging in activities of illicit
traffic of contraband which can have deleterious effect on the National
Economy. It is argued that such order is not a curative, reformative or
punitive but merely a preventive one so that such anti-social and
subversive elements do not further indulge in illicit trafficking of
contraband. It is argued that there is no prohibition in law to pass
detention order in respect of a person who is already in custody as the
object is not to punish a man for having done something already but to
intercept before he repeats the same and, therefore, the objective is to
prevent him from indulging in such type of activities while keeping in
mind the safety and interest of the society. It is also contended that
there were enough of compelling reasons before the detaining
authority justifying detention order. It is argued that in the first case,
there was huge recovery of ganja. Respondents have relied upon
(2018) 12 SCC 150
(1990) Cri.L.J. 1232
(2003) Cri.L.J. 1976
(2001) 1 SCC 341
(1985) 4 SCC 232
Haradhan Saha Vs. State of West Bengal & Ors. 9 and contended that
the basis of detention is satisfaction of the Executive about reasonable
probability of the likelihood of detenu to involve in similar acts and to
prevent him from doing the same. Thus, the aim of pre-emptive
detention was not to punish but rather to prohibit him from doing such
acts which may jeopardize the security of the Nation and its citizens.
16. It is argued that there is no ground to interfere with the
subjective satisfaction of Executive in the present matter as it was
arrived at after comprehensive and appropriate analysis of the facts.
17. We have given our anxious consideration to said contentions.
18. It is true that such power of preventive detention is a
precautionary one which can be exercised on reasonable anticipation.
19. There is also no dispute that detention order can be passed even
if any such person is already in custody.
20. In Union of India Vs. Ankit Ashok Jalan10, Supreme Court has
observed that even when a person is in judicial custody, he can be
directed to be detained, supplementing further that there must be
proper application of mind and detaining authority must be
subjectively satisfied that there is a reason to believe that detenu
would, in all probability, indulge in prejudicial activities if released on
bail and that such authority should also form a view that there is a
"real possibility" of such detenu being released on bail. In the case in
(1975) 3 SCC 198
2020 16 SCC 185
hand, there was, actually speaking, nothing before the detaining
authority which could have indicated that there was any such
possibility.
21. We may also refer to one judgment passed by this Court only
i.e. Taimoor Khan Vs. Union of India and Another11 wherein it has
been observed as under: -
"16. Thus, when a person is already in custody, the detaining
authority needs to be mindful of such facts and should record that
he is likely to be released on bail and that if released, he would
continue to indulge in such prejudicial activities. Thus, the
apprehension should be based on some cogent and tangible
material, as opposed to one based on mere apprehension. The
reason should be specific and clearly decipherable. It should not
be left for imagination. Mere expressing apprehension, without
any material, is also not justifiable".
22. Here, as already noted above, the petitioner was in custody and
there was nothing before such authority, suggesting that any bail
application had been filed, much less there being a real possibility of
his getting released on bail, particularly when, he had been found in
possession of commercial quantity of contraband. The release on
interim bail for ten days cannot be confused or equated with regular
bail. Viewed thus, it is not very clear as to on what basis, such
authority felt that he was likely to be released on regular bail in said
case. It was thus sine qua non on the part of detaining authority to
record compelling reasons, particularly in light of the fact that detenu
was already languishing in jail for last more than 18 months.
23. We may also refer to Dharmendra Suganchand Chelawat
2024 SCC OnLine Del 416
(supra) wherein it has been observed that 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.
24. Since the petitioner was already running in custody, there was
time-lag between his alleged last offending act and the date of order of
detention and, therefore, it was incumbent on the part of detaining
authority to have recorded its satisfaction that despite his being in
incarceration for a considerable period, there were compelling reasons
to pass detention order, while also elaborating such reasons.
25. In Sama Aruna (supra), it is observed that only those activities
so far back in the past which lead to conclusion that such person was
likely to engage in such activities again in the immediate future could
be taken into account. Undoubtedly, there cannot be any hard and fast
rule or rigid formula but detaining authority must accord its subjective
satisfaction after due consideration. Reference be also made to T.A.
Abdul Rahaman v. State of Kerala & Ors.12.
26. In the case in hand, we have no hesitation in holding that live-
(1989) 4 SCC 741
link got severed as the petitioner was already in custody for around 18
months and there was nothing before the Detaining Authority to
suggest that the detenu was carrying on any prejudicial activity, while
from inside the jail.
27. As is evident, the detention order is conspicuously silent about
crucial aspects. It neither records that he is likely to be released on bail
nor mentions about any reason, much less a compelling one that once
released, he would indulge in trafficking.
28. The involvement of detenu in IPC matters is hardly of any
consequence, particularly when the detaining authority was not even
apprised about the status of such cases. Moreover, these were not
recent cases and there is nothing to portray that his involvement in
such IPC matters had any nexus with his alleged activities of
trafficking in contraband.
29. Though the Courts, normally, do not interfere with satisfaction
of detaining authority. Such satisfaction is "subjective" in nature and
the court, generally, cannot substitute its opinion for the subjective
satisfaction of the detaining authority and interfere with the order of
detention. However, that does not mean that the subjective satisfaction
of the detaining authority is immune from judicial reviewability. In the
case in hand, we are compelled to intervene as there was no material
before said authority to have recorded any such satisfaction and to pass
detention order.
30. In view of our foregoing discussion, we hereby allow the
petition and quash the Detention Order dated 16.09.2022 passed by the
Joint Secretary, Govt. of India under Section 3 (1) of the Prevention of
Illicit Traffic in Narcotic Drugs and Psychotropic Substance
(PITNDPS) Act 1988 vide Detention Order No. U-11011/18/22-
PITNDPS and Order dated 07.12.2022 passed by the Director, Govt. of
India under Section 9 (f) of the Prevention of Illicit Traffic in Narcotic
Drugs and Psychotropic Substance (PITNDPS) Act 1988 vide
Detention Order No. U-11012/16/22-PITNDPS.
31. The petition stands disposed of in aforesaid terms.
(MANOJ JAIN)
JUDGE
(SURESH KUMAR KAIT)
JUDGE
APRIL 30 , 2024/dr
