Gujarat High Court
Jivrajbhai Balabhai Baraiya (Ko. ... vs Director General Of Police on 16 April, 2021
Bench: A.J.Desai
C/SCA/5614/2021 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5614 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.J.DESAI
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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JIVRAJBHAI BALABHAI BARAIYA (KO. PATEL)
Versus
DIRECTOR GENERAL OF POLICE
================================================================
Appearance:
MR SAMIR AFZAL KHAN(3733) for the Petitioner(s) No. 1
MR DHARMESH DEVNANI AGP (1) for the Respondent(s) No. 1,2,3
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CORAM: HONOURABLE MR. JUSTICE A.J.DESAI
Date : 16/04/2021
ORAL JUDGMENT
1. Heard learned advocates appearing for the respective
parties through video conferencing.
2. The present petition is directed against order of detention
dated 26.01.2021 passed by the respondent No.1 - Director General of
Police, in 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 NDPS Act").
C/SCA/5614/2021 JUDGMENT
3. The short facts leading to the present petition are as under :
3.1 The petitioner is ordered to be detained by order dated
26.01.2021 passed by the respondent No.1 with a view to preventing
him from acting in any manner prejudicial to the maintenance of the
public order in exercise of powers conferred by Sub Section (1) of
Section (3) of the Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988 (hereinafter referred to as "the NDPS
Act").
4. Learned advocate for the detenue submits that the order of
detention impugned in this petition deserves to be quashed and set aside
on the ground that registration of two offence under Sections 8(c), 20(b)
and 29 of the NDPS Act, by itself cannot bring the case of the detenue
within the purview of definition under section 3(1) of the NDPS Act. He
has contended that the order passed by the authority is without
application of mind. To substantiate his argument, the learned advocate
for the petitioner has drawn the attention of this Court to Annexure "A",
wherein it is observed by the Director General of Police, CID Crime
Branch Railway, Gandhinagar, that the action of the petitioner is against
the public order and therefore, he is taken into the custody. He has also
drawn the attention of this Court to Section 3 of the NDPS Act, which
lays 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, or any officer of a State Government, not
below the rank of a Secretary to that Government,
specially empowered for the purposes of this section by
that Government, may, if satisfied, with respect to any
C/SCA/5614/2021 JUDGMENT
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.
(2) When any order of detention is made by a State
Government or by an officer empowered by a State
Government, the State Government shall, within ten
days, forward to the Central Government a report in
respect of the order.
(3) For the purposes of clause (5) of Article 22 of the
Constitution, the communication to a person detained in
pursuance of a detention order of the grounds on which
the order has been made shall be made as soon as may
be after the detention, but ordinarily not later than five
days, and in exceptional circumstances and for reasons
to be recorded in writing, not later than fifteen days,
from the date of detention."
4.1 It is contended by the learned advocate for the petitioner
that, from the plain reading of the said Section, it is clearly established
that the authority is to satisfy itself with respect to any person (including
a foreigner) that, with a view to preventing him/her from engaging in
Illicit traffic in Narcotic Drugs and Psychotropic Substances, if it is
necessary so to do, make an order directing that such person be
detained. Such type of satisfaction is missing in the order and under the
circumstances, the order cannot sustain.
5. Per contra, Mr. Dharmesh Devnani, learned AGP has
contended that the activities of the petitioner is dangerous to the public
law and order and the petitioner may repeat such type of offence, if he is
released. She has relied upon the notification dated 08.08.2018, wherein
it is stated that in exercise of the power conferred under Section 3 of the
NDPS Act, the Government of Gujarat is hereby empowered as
C/SCA/5614/2021 JUDGMENT
DGP/Additional Director General of Police (CID Crime) for making order
of detention of person engaging in Illicit traffic in Narcotic Drugs and
Psychotropic Substances to exercise powers under Section 3 of the Act.
She has also contended that the Coordinate Bench has passed the order,
which is under challenge before the Division Bench of this Court.
6. After considering rival submissions and considering the
order passed by the respondent authority, I am of the view that the
respondent authority has not concluded in its order that he is satisfied
that the petitioner would engage in Illicit traffic in Narcotic Drugs and
Psychotropic Substances Act and with a view to restrain him from
further committing such type of offence, the order came to be passed
but, such type of satisfaction is missing in the order. I have considered
the submissions made by the learned AGP, but then the concerned
authority has not concluded with the satisfaction required under Section
3 of the NDPS ACT.
6.1 Under the circumstances, the order passed by the
respondent authority cannot stand in the eye of law and the same is
required to be quashed and set aside. In the result, the present petition is
hereby allowed and the impugned order of detention dated 26.01.2021
passed by the respondent - detaining authority is hereby quashed and
set aside. The detenue is ordered to be set at liberty forthwith if not
required in any other case. Rule is made absolute accordingly.
7. The Registry is directed to communicate this order to the
concerned jail authority by fax or email.
(A.J.DESAI, J)
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