Manipur High Court
Shri Harshal Desai vs The Joint Secretary (Pitndps) on 26 July, 2024
Author: A. Bimol Singh
Bench: Ahanthem Bimol Singh, A. Guneshwar Sharma
[1]
SHOUGRAKPAM Digitally signed by
SHOUGRAKPAM IN THE HIGH COURT OF MANIPUR
DEVANANDA DEVANANDA SINGH
Date: 2024.07.26 12:54:39
SINGH +05'30' AT IMPHAL
WP(Cril.) No. 11 of 2024
Shri Harshal Desai, aged about 54 years, S/o Late Praful Desai,
a permanent resident of A-801, Suncity Apartment, near Bhulka
Bhavan/ Surya Flats Adajan, Surat, Gujarat - 395009 at present
under detention at Manipur Central Jail, Sajiwa, P.O. - Lamlong,
P.S. Imphal East, District: Imphal East, Manipur - 795010.
... Petitioner
-Versus-
1. The Joint Secretary (PITNDPS), Government of India, Ministry
of Finance, Department of Revenue, Room No. 202, 2nd Floor
Jeevan Tara Building, Parliament Street, New Delhi - 110001.
2. The Secretary, Department of Revenue, Ministry of Finance,
North Block, New Delhi - 110001.
3. The Superintendent, Manipur Central Jail, P.O. Lamlong, P.S.
Imphal East, District: Imphal East, Manipur - 795010.
... Respondents
B E F O R E
HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH
HON'BLE MR. JUSTICE A. GUNESHWAR SHARMA
For the petitioner :: Mr. PN Lakhani, Advocate
For the respondents :: Mr. B.R. Sharma, CGSC &
Mr. Th. Vashum, GA
Date of hearing :: 23-07-2024
Date of judgment & order :: 26-07-2024
WP(Cril.) No. 11 of 2024 Contd.../-
[2]
JUDGMENT & ORDER
A. Bimol Singh, J.
[1] Heard Mr. PN Lakhani, learned counsel appearing for the
petitioner; Mr. B.R. Sharma, learned CGSC appearing for the respondents
No. 1 and 2 and Mr. Th. Vashum, learned GA appearing for the respondent
No. 3.
The present petition has been filed challenging the order dated
28-02-2024 passed by the Joint Secretary to the Government of India,
Ministry of Finance, Department of Revenue (PITNDPS UNIT) in exercise
of the power conferred by Section 3(1) of the Prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substance Act, 1988 directing to detain
the petitioner and kept in Sajiwa Central Jail, Manipur, as well as the order
dated 14-05-2024 passed by the Deputy Secretary to the Government of
India confirming the order of the petitioner's detention and ordering for
detaining the petitioner for a period of one year w.e.f. 29-02-2024.
[2] The facts of the present case, in a nutshell, are that the petitioner
was arrested by a combined team of Narcotic Crime Bureau, Imphal and
Narcotic Crime Bureau, Guwahati on 05-08-2023 from his residence in
connection with a case being NCB Crime No. 02/NCB/Imp/2023 u/s 8(c)
and 9(a) read with Section 21(c), 25A and 29 of the ND & PS Act, 1985
registered by the Narcotic Crime Bureau at Imphal, Manipur. The said case
was registered in connection with seizure of a commercial quantity of
pseudoephedrine tablets. Subsequent to his arrest, the petitioner was
produced before the Special Judge, ND & PS Court on 09-08-2023, which
WP(Cril.) No. 11 of 2024 Contd.../-
remanded him to police custody and thereafter to judicial custody and the
petitioner is still kept in Sajiwa Central Jail, Manipur.
[3] While the petitioner was under judicial custody, the petitioner filed
a bail application before the Special Judge, ND & PS, Manipur, for releasing
him on bail, however, the same was rejected by the said court by an
order dated 30-11-2023. Thereafter, the petitioner again filed another bail
application before this court for releasing him on bail and the said bail
application is still pending. While the petitioner was still in judicial custody
in connection with the above mentioned criminal case, the respondent
No. 1 passed the Detention Order dated 28-02-2024 directing for detaining
the petitioner in Sajiwa Central Jail, Manipur, in exercise of the power
conferred by Section 3(1) of the PITND & PS Act, 1988.
After rejecting all the representation submitted by the petitioner
against his detention order and after obtaining the report from the Advisory
Board constituted under section 9 of the PIT ND&PS Act, 1988, the Central
Government confirmed the detention order passed against the petitioner
by issuing the order dated 14-05-2024 and ordering for detention of the
petitioner for a period of one year w.e.f. 29-02-2024. Having been
aggrieved, the petitioner assailed his detention orders by filing the present
petition.
[4] Mr. PN Lakhani, learned counsel appearing for the petitioner
raised only one ground in assailing the impugned detention orders. The
learned counsel submitted that the detaining authority has knowledge that
the petitioner was in judicial custody in connection with a criminal case
WP(Cril.) No. 11 of 2024 Contd.../-
involving seizure of a commercial quantity of contraband drugs, however,
while passing the impugned detention order, nothing has been mentioned
or indicated in the said detention order as well as in the grounds of detention
that the petitioner was likely to be released on bail. It has also been
submitted that there was no cogent material before the detaining authority
to arrive at its subjective satisfaction that there was / is a real possibility of
the petitioner being released on bail, in the face of the provisions of Section
37 of the ND & PS Act, 1985. The learned counsel strenuously submitted
that there was total non-application of mind on the part of the detaining
authority and the impugned detention order had been passed in a
mechanical manner and as such, the same is liable to be quashed and set
aside.
[5] Mr. B.R. Sharma, learned CGSC appearing for the respondents
No. 1 and 2 submitted that even though nothing has been mentioned in the
impugned detention order that the petitioner was likely to be released on
bail, the detaining authority was aware that the application of the petitioner
for granting bail is pending before this court and all such facts have been
clearly mentioned at para No. 1.1(cc) and para No. 3 of the grounds of
detention dated 28-02-2024. It has also been submitted by the learned
counsel that the impugned detention orders have been issued by the
detaining authority after duly complying with all the constitutional, statutory
and procedural safeguards and after due application of mind and on the
basis of the material facts available on record and after careful
consideration of the facts and circumstances of the case, the nature of
activities, materials collected, the propensity and potentiality of the
WP(Cril.) No. 11 of 2024 Contd.../-
petitioner to indulge in such activities. The learned counsel, accordingly,
submitted that there is no merit in the present petition and the same is liable
to be dismissed.
[6] It is trite law that detention of a person under the preventive
detention laws is not by way of punishment for committing an offence but
to prevent the person from committing offences. If a person is already
arrested and kept in custody for committing an offence, there is no
possibility of committing any further offence by him while he is still in
custody, therefore, there will be no need for passing a detention order for
detaining him under the preventive detention laws. However, there is an
exception to this rule, i.e. if the detaining authority arrived at his subjective
satisfaction, based on cogent materials, that there is a real possibility of
releasing the person on bail and that the person is likely to commit an
offence while on bail, a detention order can be passed against the said
person under the preventive detention laws in order to prevent the said
person from committing any further offences.
[7] In the present case, the petitioner was already arrested and kept
in judicial custody in connection with the seizure of a commercial quantity
of narcotic drugs and therefore, Section 37 of the Narcotic Drugs and
Psychotropic Substance Act, 1985 would have application and grant of bail
would be subject to the stringent conditions provided thereunder. Nothing
is mentioned in the impugned detention order that the detaining authority
has arrived at his subjective satisfaction that the petitioner is likely to be
released on bail. Only in the grounds of detention, the detaining authority
WP(Cril.) No. 11 of 2024 Contd.../-
merely referred to the fact that a bail application had been filed without
deciding whether there was a likelihood of the petitioner being released on
bail, notwithstanding the applicability of Section 37 of the ND & PS Act,
1985 and passed the impugned detention order. Accordingly, we are of the
considered view that the detaining authority passed the impugned detention
order without application of mind and in a mechanical manner and on this
ground alone, the impugned detention orders are liable to be quashed and
set aside.
[8] We have arrived at the above conclusion taking into
consideration the facts and circumstances of the present case and the
judgment rendered by the Honble Apex Court in the case of "Sayed Abul
Ala Vs. Union of India & ors." reported in (2007) 15 SCC 208, wherein it
has been held as under:-
"19. An application for bail is required to be filed and considered by
the appropriate court in terms of Section 439 of the Code of
Criminal Procedure but in cases involving the provisions of the
NDPS Act, the detaining authority was required to take into
consideration the restrictions imposed on the power of the court
to grant bail having regard to the provisions of Section 37 thereof.
20. Section 37 reads as under:
"37. Offences to be cognizable and non-bailable (1)
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974),
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable for offences
under Section 19 or Section 24 or Section 27-A and also
for offences involving commercial quantity shall be
released on bail or on his own bond unless
(i) the Public Prosecutor has been given an opportunity
to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application,
the court is satisfied that there are reasonable
WP(Cril.) No. 11 of 2024 Contd.../-
grounds for believing that he is not guilty of such
offence and that he is not likely to commit any offence
while on bail"
The statute, thus, puts limitation on the jurisdiction of the
court in the matter of grant of bail. They cannot be ignored by any
court of law, Several decisions of this Court and of the High Court
operate in the field."
"21. Proper application of mind on the part of the detaining authority
must, therefore, be borne out from the order of detention. In cases
where the detenu is in custody, the detaining authority not only
should be aware of the said fact but there should be some material
on record to justify that he may be released on bail having regard
to the restriction imposed on the power of the court as it may not
arrive at the conclusion that there existed reasonable grounds for
belleving that he was not guilty of such offence and that the
detenu could not indulge in similar activity, if set at liberty,"
"22. The detaining authority furthermore is required to bear in mind
that There exists a distinction between the "likelihood of his
moving an application for bail" and "likelihood to be released on
bail", While arriving at his subjective satisfaction that there is
likelihood of the detenu being released on bail, recording of the
satisfaction on the part of the detaining authority that merely
because an application for grant of bail had been filed, would not
be enough. It would also not be sufficient compliance with the
legal obligation that the detaining authority had informed himself
that the detenu has retracted from his earlier confession."
"26. No doubt antecedents of the detenu would be a relevant factor but
the same by itself may not be sufficient to press an order of
detention inasmuch as the principles which govern the field so as
to enable the court to arrive at a decision that the order of
detention can be validly passed despite the detenu being in
custody are:
(1) if the authority passing the order is aware of the fact that
he is actually in custody:
(2) if he had a reason to believe on the basis of reliable
material
(a) That there is a real possibility of his being released on
bail, and
(b) that on being released, he would in all probability
indulge in prejudicial activities; and
(3) it is felt essential to detain him to prevent him from so
doing."
WP(Cril.) No. 11 of 2024 Contd.../-
[9] Having regard to the facts and circumstances of the present case
and for the findings and reasons given hereinabove, we are of the
considered view that the detention orders passed against the petitioner
cannot be sustained. Accordingly, the impugned Detention Order dated
28-02-2024 and the impugned Confirmation Order dated 14-05-2024
are hereby quashed and set aside. Further, the petitioner, presently
incarcerated in the Sajiwa Central Jail, Manipur, shall be set at liberty
forthwith unless his continued detention is validly required in connection
with any other cases. With the aforesaid direction, the present petition is
allowed. Parties are to bear their own costs.
JUDGE JUDGE
FR / NFR
Devananda
WP(Cril.) No. 11 of 2024 Contd.../-
