Not very clear on what basis authority felt that he was likely to be released on bail: Delhi HC quashes detention order passed under PITNDPS against accused already in custody even after completion of duration of detention
Justices Suresh Kumar Kait & Manoj Jain [15-04-2024]

Read Order:SHAHID KHAN @ CHOTE PRADHAN v. UNION OF INDIA & ANR [DEL HC- W.P.(CRL) 224/2023]

Tulip Kanth 

New Delhi, April 16, 2024: The Delhi High Court has quashed a detention order passed against a man booked under provisions of thePrevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance (PITNDPS) Act, 1988 after noting that he had already completed his duration of detention and there was nothing before the detaining authority which could have suggested that there was imminent possibility of him being released in near future & indulging in prejudicial activities.

The Sponsoring Authority-Crime Branch (Narcotics), Delhi. brought it to the notice of the concerned authority under Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance (PITNDPS) Act 1988 about the involvement of the petitioner in three cases.

As far as first case was concerned, the petitioner along with his nephew was found in conscious possession of 20 kgs heroin and they both were arrested on 18.08.2021. This was quite a substantial quantity as the commercial quantity starts from 250 grams onwards.

As per the facts mentioned in the detention order, there was no conscious recovery of any contraband from the possession of the petitioner in relation to the second case. In said case, the concerned investigating agency had apprehended one person, namely, Hukum Chand @ Titu and from his possession contraband i.e. heroin was recovered and during course of the investigation, he disclosed that he had purchased the same from one Fizula @ Rohit. Hukum Chand was arrested and at his instance, Fizula was arrested on 18.08.2021. There was recovery from the possession of accused Fizula also and in his supplementary disclosure, he named accused Shahid Khan (petitioner herein) as the person who had supplied him such contraband. On the basis of such a disclosure statement, the petitioner was arrested. His arrest was based on disclosure of his co-accused and there was no conscious recovery from him.

In the third case also, there was no recovery of any contraband from the petitioner herein. His co-accused had been arrested earlier and on the basis of disclosure made by him, the police arrested him (petitioner herein) as a co-conspirator.

As per the contents of the detention order, the charge-sheets, in all the aforesaid three cases, had already been submitted before the concerned Court and the petitioner was in custody in all such three matters.

The Division Bench of Justice Suresh Kumar Kait and Justice Manoj Jain was considering a petition whereby the Petitioner sought quashing of the detention order passed by the Joint Secretary, Govt. of India and also consequent confirmation order.He also prayed for his release from the preventive detention passed under the  PITNDPS Act.

It was the petitioner's case that these orders had been passed in a perfunctory manner and there was nothing to indicate that the concerned authority had recorded its due satisfaction indicating the necessity of detaining him. It was claimed that since the petitioner was already in judicial custody for a substantial period and there was no material to show that he had indulged in any prejudicial activity while under such incarceration, there was no reason or occasion to have passed the detention order. 

“There is no dispute that detention order can be passed even if any such person is already in custody. Admittedly, such power of preventive detention is a precautionary one which can be exercised on reasonable anticipation”, the Bench opined while adding that in the case in hand, there was nothing before the detaining authority which could have indicated that there was any such real possibility.

It was further noted that the petitioner was in custody in three cases and there was nothing before such authority suggesting that any bail application had been filed, much less that there was real possibility of his getting released on bail, particularly when he had been found in possession of commercial quantity in one case. 

“Viewed thus, it is not very clear as to on what basis, such authority felt that he was likely to be released on bail in all such cases. Since the petitioner was in custody in three cases, it was sine qua non on the part of detaining authority to record compelling reasons, particularly in light of the fact that such detenu was already languishing in jail for last around 9-10 months”, it held.

Moreover, there was nothing before the detaining authority which could have suggested that there was imminent possibility of him being released in near future and indulging in prejudicial activities.

Noting that the petitioner was already in custody for around 9-10 months, there was time-lag between his alleged last offending act and the date of order of detention, the Bench observed that it was incumbent on the part of detaining authority to have recorded its satisfaction that despite his being in incarceration for such considerable period, there were enough compelling reasons to pass detention order, while also elaborating such reasons.

Referring to the judgements in T.A. Abdul Rahaman v. State of Kerala &Ors. and Sama Aruna v. State of Telangana and Another, the Bench said, “In the case in hand, we have no hesitation in holding that livelink got severed as the petitioner was already in custody for around 9- 10 months. Moreover, the detaining authority was neither in a position to hold that he was likely to be released in near future nor had any material which could have compelled it to observe that if released, he would indulge in prejudicial activities.”

The petitioner was directed to be detained for a period of one year from the date of detention i.e. 31.05.2022 and such period of detention was already over.However, the petitioner still continued to be in custody in one of the cases and this justified the contention raised by the petitioner that the detaining authority had no material before it which could have suggested that he was likely to be released, much less that on his such release, he would continue with any prejudicial activity.

Thus, allowing the petition, the Bench quashed the Detention Orders passed by the Joint Secretary, Govt. of India.