Delhi High Court
Gurminder Singh @ Lalli vs Union Of India And Others on 1 February, 1999
Equivalent citations: 1999IIAD(DELHI)118, 78(1999)DLT199, 1999(49)DRJ149
Author: S.N. Kapoor
Bench: S.N. Kapoor
ORDER Anil Dev Singh, J.
1. By this writ petition under Article 226 of the Constitution of India the petitioner seeks quashing of the order dated March 27, 1997 passed by the Joint Secretary, Government of India, under section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short 'the Act').
2. The facts of the case are that on December 23, 1996 the officials of the Directorate of Revenue Intelligence (for short 'D.R.I.') intercepted a Maruti Car, bearing registration No. DL4CB4104, near Delhi Police check post at Sindhu Border after it had entered Delhi. The car was being driven by the petitioner. Besides the petitioner there was another occupant of the car Mr. Jagdeep Singh, who was found sitting next to the petitioner. Search of the car by the officials of the D.R.I. led to recovery of 4 kgs. and 800 grams of heroine.
3. The statement of the petitioner under section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was recorded on December 24, 1996. Subsequently, on the same day the petitioner was produced before the A.C.M.M., New Delhi, who remanded him to judicial custody. On March 27, 1997, while the petitioner was in judicial custody facing trial in connection with the recovery of the above said contraband, the impugned order of detention was passed against him. The petitioner being aggrieved of the detention order has challenged the same.
4. The petitioner, though having raised several grounds of challenge in the writ petition, has laid emphasis on one point. He submits that since the petitioner was in custody there was no necessity to pass the detention order as there was no likelihood of the petitioner being released on bail. On the other hand, learned counsel for the respondent submits that the detaining authority at the time of passing the detention order was fully alive to the fact that the petitioner was in custody but at the same time it was satisfied that there was compelling necessity to direct the detention of the petitioner under section 3(1) of the Act in view of the following factors:
(1) there was a likelihood of the petitioner moving an applica tion for bail;
(2) there was a likelihood of the petitioner being released on bail; and (3) there was a likelihood of the petitioner indulging in illicit traffic in narcotic drugs after his release.
5. We have considered the respective submissions of the learned counsel for the parties. The grounds of detention which were served on the petitioner in jail reveal the reasons which prevailed with the detaining authority for passing the order of detention despite the petitioner being in judicial custody. The relevant portion of the detention order reads as follows : "Even though prosecution proceedings under Narcotic Drugs and Psychotropic Substances Act, 1985 have been initiated against Shri Gurminder Singh @ Lalli, I am satisfied that there is com pelling necessity in view of the likelihood of his moving appli cation for bail and being granted bail and being granted bail and the likelihood of his indulging in illicit traffic in narcotic drugs as is evident from the trend of his activities, to detain him under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, although he has not moved any bail application so far. "
6. From the above it is apparent that the detaining authority was conscious of the fact that the petitioner was in custody, but it failed to point out any material on the basis of which it was led to believe that there was a likelihood of the bail being granted to the petitioner. The inference of the detaining authority does not seem to be grounded on any cogent material. It is important to note that the petitioner is alleged to have committed offences under sections 21 and 23 of the Narcotic Drugs and Psychotropic Substances Act. It is also clear from the reading of the grounds of detention that the D.R.I. claims to have seized 4.800 kgs. of heroine from the car which was driven by the petitioner. Ordinarily, when such a huge quantity of heroine is alleged to have been recovered from the custody of a person, there is hardly any possibility of his being released on bail in view of the provisions of section 37 of the Narcotic Durgs and Psychotropic Substances Act.
7. In Kamarunnissa Vs. Union of India and another, , the Supreme Court on review of a large number of decisions laid down that even in the case of a person in custody a detention order can be passed provided the following conditions are satisfied :
(1) the authority passing the order is aware of the fact that he is actually in custody;
(2) the detaining authority has reason to believe on the basis of reliable material placed before it that there is a real possibil ity of his being released on bail, and that on being so released he would in all probability indulge in prejudicial activity; and (3) it is essential to detain him to prevent him from indulging in prejudicial activities.
To the same effect are the decisions of the Supreme Court in Suraj Pal Sahu Vs. State of Maharashtra and others, ; Smt. Shashi Aggarwal Vs. State of U.P. and others, ; N. Meera Rani Vs.Government of Tamil Nadu and another, ; and Anand Prakash Vs. State of U.P. and others, .
8. Thus, even in a case where a person is in custody, if the facts and circumstances of the case so demand, detention order can be passed for his detention under the law of preventive detention provided there is relevant and creditable material to indicate that he is likely to be released on bail and is likely to repeat his criminal activities.
9. It is not claimed by the respondent that any material was placed before the detaining authority on the basis of which it came to the conclusion that there was reasonable likelihood of the petitioner being granted bail. Even no such material was placed before us. It appears to us that if such a material existed the same would have been surely placed before us for our perusal. The grounds of detention as well as the counteraffidavit are silent with regard to the material on the basis of which the detaining authority had formed the above said opinion. In the circumstances, the continuous detention of the petitioner under the impugned detention order can not be sustained. Therefore, the continuous detention of the petitioner under section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, is hereby quashed. But this does not mean that the petitioner is required to be set free as proceedings are pending against him under sections 21 and 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
10. The petition stands disposed of.