Punjab-Haryana High Court
Tehal Singh vs The Union Of India (Uoi) And Ors. on 21 July, 1997
Equivalent citations: 1998CRILJ947
ORDER M.L. Koul, J.
1. These two criminal writ petition Nos. 1485 and 1539 of 1996 have been preferred on behalf of Tehal Singh and Sukhwinder Singh (hereinafter referred to as the detenus) for quashing of two detention orders dated 18-7-1996 passed by the respondents.
2. Briefly narrated the facts are that on 29-2-1996 at 6.40 hours Tehal Singh and Sukhwinder Singh, the driver and owner of the car were arrested by the officers of the Directorate of Revenue Intelligence, New Delhi at Amritsar while they were travelling in Maruti Car No. PB-10-S-3385 at Baba Bakala crossing near Rayya on G.T. road. The car was driven by Tehal Singh and he was accompanied by the owner of the car Sukhwinder Singh who was sitting besides him on the front seat. The said vehicle was escorted to D.R.I. Office situated at M- I/C, Green Avenue, Amritsar and in the presence of two independent witnesses both the detenus were given option regarding their personal search and that of the car to be conducted in the presence of a Gazetted Officer or a Magistrate. Accordingly on their personal search and that of the car in the presence of A.D.D.R.I. Amritsar and two independent witnesses 14 packets of heroin were recovered from them.
3. In this regard two detention orders F.No.801/ 10/96- PITNDPS and F.No. 801/9-96-PITNDPS dated 18th July, 1996 were passed by the Joint Secretary to the Government of India Shri A.K. Srivastava in exercise of the powers conferred upon him by Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. Therefore, both the detenue Sukhwinder Singh the owner of the car and its driver Tehal Singh were detained and kept in custody in Central Jail, Amritsar. Against the said detention Tehal Singh filed his representation on 31-9-1996 whereas Sukhwinder Singh on 6-9-1996. Both the representations were rejected vide order dated 3-10-1996 passed by the respondents.
4. Heard learned counsel for the parties, also bestowed my thoughtful consideration over the record on the file.
5. Learned counsel for the detenus contended that once a formal complaint under the N.D.P.S. Act, 1985 was filed in the Court by D.R.I. authorities on 24-5-1996 against the detenus for prosecution, therefore there was no need to detain them for in no manner they could be able to seek bail for the alleged offence committed by them under the said Act.
6. In this regard he made reliance on Section 37(1)(b) of the Act which says that no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless the Court after hearing the Public Prosecutor is satisfied that there are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any offence while on bail.
7. Learned counsel for the detenus invited the attention of the Court towards the grounds of detention which clearly indicate that the detenus were arrested for commission of an offence within the provisions of N.D.P.S. Act. The sentence provided for commission of such an offence is 10 years and a fine of Rs. 1,00,000/-. The detaining authority has specifically mentioned in the grounds of detention that 13 Kgs. and 400 grams of heroin were recovered from the detenus in the presence of two independent witnesses and a Gazetted Officer. The authorities have also filed a complaint against the detenus under N.D.P.S. Act which is under trial before a competent Court of law. There is no evidence on the file that the detenus at any time applied for grant of bail although the complaint before a competent Court of law was filed against them on 24-5-1996. This fact is corroborated from the sworn affidavit of R.K. Tewari, Deputy Director General Coordination as well. The preventive detention order was conveyed to the detenus while they were already in detention on the basis of a criminal complaint filed against them under the N.D.P.S. Act.
8. The contour of the whole matter raised and pleaded in the grounds of detention is that the detenus were intercepted from their car and 14 Kgs. of heroin were recovered from their possession. There is no proof available on the file that the detenus are habitual smugglers or earlier they were convicted or acquitted by a competent Court of law for such an offence or that there was any likelihood of their being released on bail. Once the detenus have not applied for bail it cannot be said that there was likelihood of bail to be granted to them by a competent Court of law. The Courts who try the cases under the N.D.P.S. Act are very strict and they seldom grant bail during the trial of such cases and that too in a case where 14 Kgs. of heroin are alleged to have been seized from the detenus. It was not difficult for the respondents to lodge a criminal prosecution within a week's time against them and on trial if found guilty they could be sentenced for 10 years rigorous imprisonment and a fine of Rs. 1,00,000/- each. As no bail application was moved by the detenus their apprehension that the detenus were likely to be released on bail is out of context. Therefore, the detaining authority has fallen in error and have wrongly arrived at a satisfaction that there was likelihood that the detenus would have been granted bail.
9. After going through the grounds of detention and the detention order itself it is found that the detenus have been detained for an alleged commission of crime under the N.D.P.S. Act and they have been arrested red handed while holding 14 Kgs. of heroin in their possession. Thus there was no difficulty for the respondents to lodge the criminal prosecution against the detenus immediately after the heroin was recovered from their possession in accordance with the provisions of law. A short cut way has been adopted by the detaining authority unnecessarily and they have deliberately delayed the prosecution of the detenus before the Court of law. Once the case was filed against the detenus in the competent Court of law they could not be detained under Section 3(1) of the PITNDPS Act, 1988 solely on the ground that there was likelihood of their being enlarged on bail and the same is unfounded for such offences are not bailable and seldom accused in such cases get bail.
10. It has been held in Binod Singh v. District Magistrate, Dhanbad AIR 1986 SC 2090 : 1986 Cri LJ 1959 that where the order of detention under Section 3(2) of the National Security Act was served upon the detenus, when he was already in jail in respect of a murder case and there was no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order of detention the continued detention of the detenu under the Act would not be justified. The power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. And if that is the position, then however disreputable the antecedents of a person might have been, without consideration of all the aforesaid relevant factors, the detenu could not have been put into preventive custody.
11. Once the detenue were already in detention and had to face a criminal charge under the relevant pro visions of the N.D.P.S. Act for holding and possessing 14 Kgs. of heroin which was recovered from their possession in the presence of two independent witnesses and a Gazetted Officer which shows prima facie that they were guilty of committing a serious offence under the said Act, therefore, the order of detention passed and served upon them while they were in custody is not justified.
12. The other arguments raised by the learned counsel for the detenus was that the representations of the, detenus were not immediately considered and the laches have not been explained by the respondents therefore their detention is liable to be quashed. However, this argument of the learned counsel for the detenus is repudiated by the other side who have referred to 1995 SCC 137 (sic). In that ruling it has been held that where a representation was submitted on 24-4-1992 and rejection was communicated to the detenu on 4-6-1992 the delay in considering the representation in the facts and circumstances of the case was not found unreasonable. This case law has direct bearing on the merits and facts of this case and once authorities have considered the representations of the detenus properly and there was no abnormal delay in such consideration, therefore this ground raised by the detenus is not sustainable and is rejected.
13. In view of the above discussion this petition is allowed, the detention orders dated 18-7-1996 passed against the detenu are quashed. However, the detenus are not entitled to be released unless they get bail under some offence under the N.D.P.S. Act for which they are facing trial. The detenus are, therefore, directed to be released under preventive detention and shifted in the judicial custody of the Court before whom they are facing trial under the N.D.P.S. Act.