Delhi High Court
Monu @ Sandeep vs Union Of India Through Its Secretary & … on 12 March, 2025
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 21st February, 2025
Date of Decision: 12th March, 2025
+ W.P.(CRL)2743/2024
MONU @ SANDEEP .....Petitioner
Through: Mr. Sunil Kumar Mehta & Mr.
Kundan Kumar, Advs.
(M:9810150843)
versus
UNION OF INDIA THROUGH ITS SECRETARY & ORS.
.....Respondents
Through: Mr. Amit Tiwari, CGSC with Mr.
Ayush Tanwar and Ms. Ayushi
Srivastava, Advocates for UOI
(M:9311487129).
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE RAJNEESH KUMAR GUPTA
JUDGMENT
Rajneesh Kumar Gupta, J.
1. The present petition is filed by the Petitioner – Monu @ Sandeep @
Rickey under Article 226 of the Constitution of India read with Section 482
of the Code of Criminal Procedure, 1973 (hereinafter referred to as
“Cr.P.C“‘)/Section 528 of the Bharatiya Nagrik Suraksha Sanhita, 2023
(hereinafter referred to as “BNSS”) seeking the quashing of Order bearing
F.No.U-11011/06/2024-PITNDPS dated 22nd February, 2024 passed under
Section 3(1) of the Prevention of Illicit Traffic in Narcotics Drugs and
Psychotropic Substances Act, 1988 (hereinafter referred to as “the
PITNDPS Act“). The said order is issued by the Joint Secretary, Government
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of India, Ministry of Finance, Department of Revenue (PITNDPS UNIT) i.e.,
respondent No.3 (hereinafter referred to as “the impugned detention
order”‘), thereby ordering the detention of Mr. Monu @ Sandeep @ Rickey
(hereinafter referred to as the “Detenu/petitioner”).
2. Heard learned counsel for the parties and perused the record.
Submissions on behalf of the Petitioner
3. The counsel for the Petitioner submits that the detenu has been
detained pursuant to the impugned detention order dated 22nd February,
2024. The impugned detention order was passed on the basis of the
following cases:-
(i) FIR bearing No. 14/2022 dated 17th February, 2022 registered
under section 21 of the NDPS Act, 1985, P.S. Crime Branch,
Outer District Area, Delhi.
(ii) FIR bearing No. 369/2020 dated 09th August, 2020 registered
under section 21 of the NDPS Act, 1985, P.S. Aman Vihar,
Delhi.
(iii) FIR bearing no. 111/2003 dated 04th March, 2003 registered
under section 21 of the NDPS Act, 1985, P.S. Janak Puri
(West), Delhi.
3.1. The counsel for the petitioner further submits that the petitioner
pleaded guilty in FIR No. 111/2003, and was sentenced to 6 months of
imprisonment, which he has already served. Therefore, this ground is
stale and it cannot be relied upon to justify the detention under preventive
measures.
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3.2. It is further submitted that with regard to the FIR Nos. 14/2022
and 369/2020, both the cases are pending before the concerned court of
competent jurisdiction. The Petitioner has not yet been found guilty in
these cases and as per the law, he is presumed innocent until proven
guilty. The detention order cannot be passed merely based on charges
pending trial. The counsel for the Petitioner further submits that the
detention order cannot be used to subvert or replace the regular punitive
laws under the Penal Code or the NDPS Act. In view of the fact that the
Petitioner is currently in judicial custody, there is no compelling reason
for the detaining authority to pass the impugned detention order. It is
further submitted that the Petitioner’s bail applications have already been
dismissed and there is no indication that the Petitioner would be released
on bail in accordance with section 37 of the NDPS Act, 1985, in the near
future. Hence, there was no necessity for preventive detention. It is also
submitted that the detaining authority has failed to provide any material
on record that would justify the issuance of a detention order while the
Petitioner was already in jail and had no freedom to engage in any further
criminal activity. The impugned detention order appears to have been
passed mechanically and without due application of mind.
3.3. The counsel for the Petitioner submits that the grounds of
detention along with the relied-upon documents were provided in English
and there is no material to show that the documents were explained to the
Petitioner in Hindi which is a clear violation of the provisions under
Article 22(5) of the Constitution of India. It is further submitted that the
detention of the Petitioner is based on stale incidents and lack the
necessary proximate link with the threat that the Petitioner might pose in
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the future. The law on preventive detention mandates that the detention
should be based on a reasonable prognosis of future behaviour, which is
not the case here. It is submitted that the detention vide the impugned
detention order dated 22nd February, 2024 violates the fundamental rights
of the Petitioner under Article 21 of the Constitution of India, as the
procedure followed in his case was neither fair nor just.
3.4. The counsel for the Petitioner submits that the detention order
dated 22nd February, 2024 was issued two years after the detenu was sent
in custody as his bail application was dismissed under Section 37 of the
NDPS Act,1985 in FIR No. 14/2022. Therefore, there is no justification
for the inordinate delay, nor is there any material to support the assertion
that the Petitioner was likely to be released on bail in the near future.
3.5. The counsel for the Petitioner submits that his representation for
revocation of the detention order made through his counsel on 12th April,
2024 has not been considered by the detaining authority, nor have the
documents requested been supplied to him. The counsel for the Petitioner
has been denied an effective opportunity to contest his detention thereby
vitiating the continued detention.
3.6. Reliance has been placed on the following judgments by the ld.
Counsel for the Petitioner: –
i. Farukh @ Chapta V Union of India & Anr., W.P.(Crl.)
240/2023, Decided by the coordinate bench of this court.
ii Sushanta Kumar Banik V State of Tripura & Ors.,
Criminal Appeal No. 1708 of 2022, decided by the Hon’ble
Supreme Court of India.
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3.7. Mr. Mehta, Ld. Counsel appearing for the Petitioner submits that
there is a long list of FIRs/cases mentioned in the counter affidavit which
appears to have compelled the impugned detention order. However, none
of the materials or documents in respect of the said FIRs/cases have been
furnished to the Petitioner.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS
4. The Respondent Nos. 1 to 3 have filed their counter affidavit. The
counsel for Respondent Nos. 1 to 3 submits that the Petitioner was involved
in three cases of illicit trafficking of drugs under the NDPS Act, 1985,
which are as follows:
(i) FIR bearing No. 14/2022 dated 17th February, 2022 registered
under section 21 of the NDPS Act, 1985, P.S. Crime Branch,
Outer District Area, Delhi.
(ii) FIR bearing No. 369/2020 dated 09th August, 2020 registered
under sections 21/61/85 of the NDPS Act, 1985, P.S. Aman
Vihar, Delhi.
(iii) FIR bearing No. 111/2003 dated 04th March, 2003 registered
under sections 21/61/85 of the NDPS Act, 1985, P.S. Janak
Puri (West), Delhi.
5. The counsel for the Respondent Nos. 1 to 3 further submits that the
Petitioner has been involved in approximately 109 criminal cases since
1997, which clearly indicates that he is a hardcore criminal offender with a
high propensity for committing crimes upon being released on bail.
5.1. It is submitted that the Petitioner’s previous criminal records were
thoroughly considered while passing the impugned detention order. The
Sanctioning Authority specifically took into account the Petitioner’s
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involvement in the offences under FIR bearing Nos. 111/2003, 14/2022 and
369/2020, concluding that he is a habitual offender under the NDPS Act. It
is further submitted that the Petitioner has been making all the possible
efforts to secure bail and has already applied for the same before both the
concerned trial court and this court. There exists a strong apprehension that
the Petitioner, being a habitual offender, is likely to continue committing
offences under the NDPS Act. Hence, it was necessary to detain him.
Additionally, the counsel for the Respondent Nos. 1 to 3, submits that the
grounds of the detention were duly translated into Hindi for the Petitioner
and all relevant documents, along with the impugned detention order, were
duly supplied and explained to the petitioner on 04th March, 2023. The
delay in providing the documents was due to the time required to translate
the voluminous documents into Hindi, which was reasonable and justified.
5.2. The counsel for the Respondent Nos. 1 to 3 submits that the grounds
of detention and the impugned detention order were passed in accordance
with the law, only after the sanctioning authority had thoroughly scrutinized
all the facts and material on record.
5.3. It is further submitted that the detention order and the grounds for
detention were issued by the Detaining Authority as per section 3 of the
PITNDPS Act, 1988, after due application of mind, based on the available
material facts. This was done by carefully considering the materials
collected, nature of activities, the propensity and potential of the detenu to
engage in such activities and magnitude of the offences being committed by
the detenu in utter disregard of the law. It is thus prayed that the present writ
petition be accordingly dismissed.
The counsel for the Respondent Nos. 1 to 3 has placed reliance on
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Haradhan Saha V The State of West Bengal &Ors., (1975) 3 SCC 198.
Impugned Detention Order
6. The impugned detention order is quite detailed and is reproduced
below:-
“F-No. U-11011/06/2024-PITNDPS
GOVERNMENT OF INDIA
MINISTRY OF FINANCE
DEPARTMENT OF REVENUE
(PITNDPS UNIT)Room No.202,2nd Floor,
Jeevan Tara Building,
Parliament Street, New Delhi
Dated the 22nd February, 2024Monu @ Rickey @ Sandeep S/o Hari Singh
R/o B-348, Balbir Vihar,
Aman Vihar, DelhiSubject: Grounds on which Detention Order F. No- U-
11011/06/2024-PITNDPS dated 22nd February, 2024 has been
issued against Monu @ Rickey @ Sandeep S/o Hari Singh R/o
B-348, BalbirVihar, AmanVihar, Delhiunder the PITNDPS
Act, 1988 – Reg.
The following facts have been brought to my attention by the
sponsoring Authority of this PITNDPS proposal i.e. the Deputy
Commissioner of Police, Crime Branch, ANTF, New Delhi and I
have gone through the facts presented by the Sponsoring
Authority as mentioned below: -.
i. FIR No. 14/2022, Dt. 17.02.2022 U/s 21 NDPS Act, PS
Crime Branch, (Outer District Area
(a) On receipt of a secret information on 16.02.2022 that Monu
@ Rickey @ Sandeep i.e. you are selling Heroine from yourSignature Not Verified W.P.(CRL) 2743/2024 Page 7 of 23
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residence, a team of PS Crime Branch, New Delhi
apprehended Monu @ Rickey @ Sandeep i.e. you from your
residence. From the 1st floor of your house, three polythene
bags were recovered that contained 200 Grams + 200
Grams + 100 Grams Heroine. Subsequently, the accused
Monu @ Rickey @ Sandeep i.e. you were arrested in the
present case. Accordingly, a case vide FIR No. 14/2022
dated 17.02.2022 was registered. The recovered contraband
was seized under the NDPS Act, 1985.
(b) In the disclosure statement dated 17.02.2022, Monu @
Rickey @ Sandeep i.e. you stated that due to death of your
father in childhood, you started stealing money and small
thefts; that you were in jail in cases related to robbery and
came out of jail in the month of January; that you went to
jail in 2003 and 2020 in cases related to NDPS Act; that on
16.02.2022, police authorities seized 500 gms of Heroin
from first floor of your house; that you purchased the seized
Heroin from one Bala; that you know the residence of Bala
and her associate Manoj. Monu @ Rickey @ Sandeep i.e.
you were arrested on 17.02.2022.
(c) A sample of seized contraband was sent to Forensic Science
Laboratory (FSL), Rohini, Delhi. Forensic Science
Laboratory (FSL), Rohini, Delhi vide letter dated
13.06.2023 confirmed that the sample answers positive test
for Diacetylmorphine, 6-Monoacetylmorphine,
Acetylcodeine, Trimethoprim & Acetaminophen.
(d) A Charge sheet has bcen filed in the Court of Additional
Sessions Judge, Special Judge NDPS Act, Rohini Courts,
New Delhi on 16.08.2022 against Monu @ Rickey @
Sandeep i.e. you and others under the NDPS Act, 1985.
(e) You i.e. Monu@ Rickey @ Sandeep filed an application for
grant of default bail before the Court of ASJ/Special Judge:
NIDPS (North-West), Delhi. The Court dismissed the default
bail application vide order dated 03.06.2023. You filed
another bail application before the Court of ASJ/Special
Judge: NDPS (North West), Delhi which was dismissed asSignature Not Verified W.P.(CRL) 2743/2024 Page 8 of 23
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withdrawn vide order dated 19.08.2023. You filed another
bail application before the Court of ASJ-II/Special Judge:
NDPS (North-West)/Rohini Courts, Delhi which was
dismissed vide order dated 19.02.2024.
ii. FIR No. 369/20 dt 09.08.2020 u/s 21/61/85 NDPS Act, PS
AmanVihar
(a) On receipt of a secret information on 09,08.2020, one person
named Arjun @ Golu was apprehended near BalbirVihar,
Delhi and total 9.17 gms of Heroin was recovered.
Accordingly, a case vide FIR No. 369/20 dated 09.08.2020
was registered. The recovered contraband was seized under
the NDPS Act, 1985.
(b) In the disclosure statement dated 09.08.2020, Arjun @ Golu
revealed that he resides with Sandeep @ Monu i.e. you; that
the said Heroin was given to him by Sandeep @ Monu i.e.
you; that you told Arjun @ Golu to sell Heroin with you.
Arjun @ Golu was arrested on 09.08.2020.
(C) Subsequently, Sandeep @ Monu i.e. you were apprehended.
In your disclosure statement dated 26.08.2020, you revealed
that Arjun @ Golu is your relative and resides with you: that
you told him to start selling smack/heroin with you; that you
used to give Heroin/smack to him for selling it to customers.
Sandeep (Monu i.e. you were arrested on 26.08.2020.
(d) A sample of seized contraband was sent to Forensic Science
Laboratory (FSL), Rohini, Delhi. Forensic Science
Laboratory (FSL), Rohini, Delhi vide letter dated 28.01.202 1
confirmed that the sample answers positive test for
Diacetylmorphine, 6-Monoacetylmorphine, Acetylcodeine,
Morphine, Dextromethorphan, Caffeine & Acetaminophen.
(e) A Charge sheet was filed in the Hon’ble Court of
GopalKrishan, Ld. MM, Rohini Courts, Delhi against
Sandeep @ Monu i.e. you and Arjun @ Golu under the
NDPS Act. 1985. The case is at the stage of trial.
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(f) You i.e. Monu @ Rickey @ Sandeep filed an application for
grant of regular bail before the Court of ASJ-02/NDPS/North
West, Rohini, Delhi. The Court dismissed the regular bail
application vide order dated 01.09.2020. You filed another
bail application before the Court of ASJ-02/NDPSNorth
West, Rohini, Delhi which was dismissed vide order dated
09.10.2020. You filed another bail application before the
Court of ASJ-02/NDPS/North West, Rohini, Delhi which was
dismissed vide order dated 04.12.2020.
(g) You i.e. Monu @ Rickey @ Sandeep filed an application for
grant of bail before the Court of ASJ-02/NDPS/North West,
Rohini, Delhi. The Court granted interim bail for a period of
45 days vide order dated l6.02.2021 which was further
extended vide various orders and subsequently your bail
application was dismissed as withdrawn vide order dated
0S.01.2022 of Hon’ble ASJ-02/NDPS/North West, Rohini,
Delhi.
iii. FIR No. 111/2003, Dt. 04.03.2003 U/s 21/61/85 NDPS Act,
PS JanakPuri (West) District
(a) In the evening of 04.03.2003, staff posted at PS JanakPuri
noticed two boys coming towards them from A-2 Cut side,
JanakPuri. The boys were signalled to stop but they tried to
flee from the spot. In the meanwhile, they were overpowered
by the police staff. On questioning, they disclosed their
identities as Monu @ Rickey i.e. you and Raj Kumar. 10
grams smack was recovered from the conspicuous possession
of Monu @ Rickey i.e. you and hence case was registered
against you.
(b) You i.e. Monu @ Rickey @ Sandeep were convicted in the
said case and sentenced to jail for a period of 6 months.
2. After going through the facts and circumstances in all
above-mentioned cases, it is clearly established that you i.e.
Monu @ Rickey @ Sandeep are actively involved in trafficking of
Narcotics Drugs and Psychotropic Substances and you are a
habitual offender. Your presence in the society is a threat to
innocent person of the locality/State/Nation and your activities
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are prejudicial to society.
3. I am aware that at present you i.e. Monu @ Rickey @
Sandeep are in police/judicial custody since 17.02.2022 in case
FIR No. 14/2022. However, considering your conscious
involvement in illegal trafficking of drugs and psychotropic
substances in a repeated manner to the detriment of the society,
you have a high propensity to be involved in the prejudicial
activities in future on being released on bail.
4. In view of the facts mentioned above, I have no hesitation
in arriving at the conclusion that you i.e. Monu @ Rickey @
Sandeep through your above acts engaged yourself in prejudicial
activities of illicit traffic of narcotics and psychotropic
substances, which poses serious threat to the health and welfare
not only to the citizens of this country but to every citizen in the
world, besides deleterious effect on the national economy. The
offences committed by you i.e. Monu@ Rickey a Sandeep are so
interlinked and continuous in character and are of such nature
that these affect security and health of the nation. The grievous
nature and gravity of offences committed by you i.e. Monu @
Rickey @ Sandeep in a well-planned manner clearly establishes
your continued propensity and inclination to engage in such acts
of prejudicial activities. Considering the facts of the present case
mentioned in foregoing paras, I have no hesitation in arriving at
the conclusion that there is ample opportunity for Monu @
Rickey @ Sandeep i.e. you to repeat the above serious
prejudicial acts. Hence, I am satisfied that in the meantime you
i.e. Monu @ Rickey @ Sandeep should be immobilized and there
is a need to prevent you i.e. Monu @ Rickey @ Sandeep from
engaging in such illicit traffic of narcotic drug and psychotropic
substances in future by detention under section 3(1)of Prevention
of Illicit Traffic in Narcotic Drugs and Psychotropic Substances
(PITNDPS) Act, 1988.
5. In view of the overwhelming evidences discussed in
foregoing paras, detailing how you i.e. Monu @ Ricky @
Sandeep have indulged in organizing trafficking of Narcotic
Drugs and Psychotropic substances as well as have a high
propensity to engage in this illicit activity, it is conclusively felt
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that if you are not detained under section 3(1) of the PITNDPS
Act, 1988, you i.e. Monu (@ Rickey @ Sandeep would continue
to so engage yourself in possessing, purchase, sale,
transportation, storage, use of narcotics and psychotropic
substances illegally and handling the above activities, organizing
directly in the above activities and conspiring in furtherance of
above activities which amount to illicit trafficking of
psychotropic substances under section 2(e) of the Prevention of
Illicit Traffic in Narcotic Drugs and Psychotropic Substances
(PITNDPS) Act, 1988 in future also. I am, therefore, satisfied
that there is full justification to detain you i.e. Monu @ Rickey @
Sandeep under section 3(1) of the Prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substances Act, 1988 with a
view to preventing you i.e. Monu @ Rickey @ Sandeep from
engaging in above illicit traffic of narcotics and psychotropic
substances specified under schedule to the NDPS Act, 1985.
6. Considering the magnitude of the operation, the
chronicle sequence of events, the well organized manner in which
such prejudicial activities have been carried on, the nature and
gravity of the offence, the consequential extent of’ investigation
involved including scanning/ examination of papers, formation of
grounds, I am satisfied that the nexus between the dates of
incident and passing of the Detention Order as well as object of
your detention has been well maintained.
7. I consider it to be against public interest to disclose the
source relevant paragraphs of information at the of the grounds
of detention above.
8. While passing the Detention Order under the Prevention
of Illicit Trafficking of Narcotic Drugs and Psychotropic
Substances Act, 1988, I have referred to and relied upon the
documents mentioned in the enclosed list.
9. You i.e. Monu @Rickey @ Sandeep have the right to
represent against your detention to the Detaining Authority, to
the Central Government as well as to the Advisory Board. If you
wish to avail this right, you should send your representation
through the Jail Authorities where you are detained, in the
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manner indicated below:
a) Representation meant for the Detaining Authority should
be addressed to 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.
b) Representation meant for the Central Government should
be addressed to the Secretary to the Government of India,
Department of Revenue, Ministry of Finance, New Delhi
110001.
c) Representation meant for the Advisory Board should be
addressed to the Chairman, PITNDPS Advisory Board,
High Court of Delhi, Delhi.
10. You are further informed that you shall be heard by the
Advisory Board in due course, if the Board considers it essential
to do so or if you so desire.
11. The above grounds are communicated to you for the purpose
of Clause (5) of Article 22 of the Constitution of India and as
required under section 3(3)of the Prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substances Act, 1988.”
ANALYSIS AND FINDINGS
7. There is no dispute as to the law that a detention order can be passed
even if a person is already in custody. Admittedly, such power of preventive
detention is a precautionary one which can be exercised upon reasonable
anticipation.
8. In Union of India V Ankit Ashok Jalan, (2020) 16 SCC 185, the
Hon’ble Supreme Court has observed as under:
“16. In Abdul Sathar case [Abdul Sathar Ibrahim
Manik v. Union of India, (1992) 1 SCC 1 : 1992 SCC
(Cri) 1] , this Court concluded as under : (Abdul
Sathar case [Abdul Sathar Ibrahim Manik v. Union ofSignature Not Verified W.P.(CRL) 2743/2024 Page 13 of 23
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India, (1992) 1 SCC 1 : 1992 SCC (Cri) 1] , SCC pp.
16-17, para 12)
“12. … (1) A detention order can validly be passed
even in the case of a person who is already in
custody. In such a case, it must appear from the
grounds that the authority was aware that the detenu
was already in custody.
(2) When such awareness is there then it should further
appear from the grounds that there was enough
material necessitating the detention of the person in
custody. This aspect depends upon various
considerations and facts and circumstances of each
case. If there is a possibility of his being released and
on being so released he is likely to indulge in
prejudicial activity then that would be one such
compelling necessity to pass the detention order. The
order cannot be quashed on the ground that the proper
course for the authority was to oppose the bail and that
if bail is granted notwithstanding such opposition the
same can be questioned before a higher court.
(3) If the detenu has moved for bail then the
application and the order thereon refusing bail even if
not placed before the detaining authority it does not
amount to suppression of relevant material. The
question of non-application of mind and satisfaction
being impaired does not arise as long as the detaining
authority was aware of the fact that the detenu was in
actual custody.
(4) Accordingly the non-supply of the copies of bail
application or the order refusing bail to the detenu
cannot affect the detenu’s right of being afforded a
reasonable opportunity guaranteed under Article 22(5)
when it is clear that the authority has not relied or
referred to the same.
(5) When the detaining authority has merely referred to
them in the narration of events and has not relied upon
them, failure to supply bail application and order
refusing bail will not cause any prejudice to the detenu
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in making an effective representation. Only when the
detaining authority has not only referred to but also
relied upon them in arriving at the necessary
satisfaction then failure to supply these documents,
may, in certain cases depending upon the facts and
circumstances amount to violation of Article 22(5) of
the Constitution of India. Whether in a given case the
detaining authority has casually or passingly referred
to these documents or also relied upon them depends
upon the facts and the grounds, which aspect can be
examined by the court.
(6) In a case where detenu is released on bail and is at
liberty at the time of passing the order of detention,
then the detaining authority has to necessarily rely
upon them as that would be a vital ground for ordering
detention. In such a case the bail application and the
order granting bail should necessarily be placed
before the authority and the copies should also be
supplied to the detenu.”
17. Now applying the law laid down by this Court,
referred to hereinabove, to the facts of the case on
hand and considering the ground (Para 7) and the
various circumstances noted by the detaining
authority, we are satisfied that the detention orders
cannot be quashed on this ground. It is to be noted that
the detenus have been granted bail by the Court on the
very date the orders of detention were quashed by the
High Court i.e. on 2-8-2019 [Ankit Ashok
Jalan v. Union of India, 2019 SCC OnLine Del 9452 :
(2019) 262 DLT 41] . Therefore, the apprehension in
the mind of the detaining authority that the detenus
are likely to be released on bail was well founded and
fortified. Therefore, the High Court has fallen in
error in quashing and setting aside the detention
orders on the ground that there is a clear lapse and
failure on the part of the detaining authority, to
examine and consider the germane and relevantSignature Not Verified W.P.(CRL) 2743/2024 Page 15 of 23
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question relating to the imminent possibility of the
detenus being granted bail, while recording its
subjective satisfaction and passing the detention
orders.”
9. From Union of India V. Ankit Ashok Jalan (Supra), it is clear that
even when a person is in judicial custody, he can be directed to be detained,
supplementing further that there must be proper application of mind and the
detaining authority must be subjectively satisfied that there is a reason to
believe that the detenu would, in all probability, indulge in prejudicial
activities, if released on bail. The detaining authority should also form a
view that there is a “real possibility” of such detenu being released on bail.
10. Similarly, in Taimoor Khan V Union of India &Anr., 2024 SCC
OnLine Del 416 the Supreme Court observed as under: –
“16. Thus, when a person is already in custody, the
detaining authority needs to be mindful of such facts and
should record that he is likely to be released on bail and
that if released, he would continue to indulge in such
prejudicial activities. Thus, the apprehension should be
based on some cogent and tangible material, as opposed to
one based on mere apprehension. The reason should be
specific and clearly decipherable. It should not be left for
imagination. Mere expressing apprehension, without any
material, is also not justifiable.”
11. In G. Reddeiah v. Govt. of A. P., (2012) 2 SCC 389, the Hon’ble
Supreme Court held:-
“11. The essential concept of preventive detention is that the
detention of a person is not to punish him for something he
has done but to prevent him from doing it. Even, as early as
in 1975, a Constitution Bench of this Court considered the
procedures to be followed in view of Articles 19 and 21 of
the Constitution. In HaradhanSaha v. State of W.B. [(1975)Signature Not Verified W.P.(CRL) 2743/2024 Page 16 of 23
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3 SCC 198 : 1974 SCC (Cri) 816] a Constitution Bench of
this Court, on going through the order of preventive
detention under the Maintenance of Internal Security Act,
1971 laid down various principles which are as follows :
(SCC p. 209, para 34)
“34. … First, merely because a detenu is liable to be
tried in a criminal court for the commission of a
criminal offence or to be proceeded against for
preventing him from committing offences dealt with in
Chapter VIII of the Code of Criminal Procedure would
not by itself debar the Government from taking action
for his detention under the Act. Second, the fact that
the police arrests a person and later on enlarges him
on bail and initiates steps to prosecute him under the
Code of Criminal Procedure and even lodges a first
information report may be no bar against the District
Magistrate issuing an order under the preventive
detention. Third, where the person concerned is
actually in jail custody at the time when an order of
detention is passed against him and is not likely to be
released for a fair length of time, it may be possible to
contend that there could be no satisfaction on the part
of the detaining authority as to the likelihood of such a
person indulging in activities which would jeopardise
the security of the State or the public order.
Fourth, the mere circumstance that a detention order is
passed during the pendency of the prosecution will not
violate [sic] the order.
Fifth, the order of detention is a precautionary
measure. It is based on a reasonable prognosis of the
future behaviour of a person based on his past conduct
in the light of the surrounding circumstances.”
*** *** ***
16. The incident relating to the procedure to be adopted in
case the detenu is already in custody has been dealt with in
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several cases. In Union of India v. Paul Manickam [(2003)
8 SCC 342: 2004 SCC (Cri) 239] this Court has held as
under: (SCC pp. 352-53, para 14)
“14…. Where detention orders are passed in relation
to persons who are already in jail under some other
laws, the detaining authorities should apply their mind
and show their awareness in this regard in the grounds
of detention, the chances of release of such persons on
bail. The necessity of keeping such persons in detention
under the preventive detention laws has to be clearly
indicated. Subsisting custody of the detenu by itself
does not invalidate an order of his preventive
detention, and the decision in this regard must depend
on the facts of the particular case. Preventive detention
being necessary to prevent the detenu from acting in
any manner prejudicial to the security of the State or to
the maintenance of public order or economic stability,
etc. ordinarily, it is not needed when the detenu is
already in custody. The detaining authority must show
its awareness to the fact of subsisting custody of the
detenu and take that factor into account while making
the order. If the detaining authority is reasonably
satisfied with cogent materials that there is likelihood
of his release and in view of his antecedent activities
which are proximate in point of time, he must be
detained in order to prevent him from indulging in
such prejudicial activities, the detention order can be
validly made. Where the detention order in respect of a
person already in custody does not indicate that the
detenu was likely to be released on bail, the order
would be vitiated…. The point was gone into detail in
Kamarunnissa v. Union of India [(1991) 1 SCC 128:
1991 SCC (Cri) 88]. The principles were set out as
follows: even in the case of a person in custody, a
detention order can be validly passed:
(1) if the authority passing the order is aware of the
fact that he is actually in custody: (2) if he has aSignature Not Verified W.P.(CRL) 2743/2024 Page 18 of 23
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reason to believe on the basis of reliable material
placed before him (a) that there is a real possibility of
his release on bail, and (b) that on being released, he
would in all probability indulge in prejudicial
activities; and (3) if it is felt essential to detain him to
prevent him from so doing. If an order is passed after
recording satisfaction in that regard, the order would
be valid. In the case at hand the order of detention and
grounds of detention show an awareness of custody
and/or a possibility of release on bail.”
*** *** ***”
12. From the aforesaid judgments it is clear that an order of preventive
detention can be passed even when the detenu is facing prosecution under
the ordinary law of the land. Each case would depend on its own facts and
circumstances and upon the subjective satisfaction of the detaining
authority.
13. A perusal of the impugned detention order would also show that in
one of the cases being FIR No.111/2003 where the Petitioner pleaded guilty,
he was sentenced to jail for a period of six months. In the other FIR being
FIR No.14/2022, which also forms the basis of the detention order, the
alleged recovery was of commercial quantity. In this case, the Petitioner had
subsequently applied for default bail which was dismissed by the Trial
Court. Despite such dismissal, the Petitioner continued to apply for bail and
as late as three days prior to the passing of the impugned detention order i.e.
on 19th February, 2024, another bail application was dismissed. The
Petitioner was filing repeated bail applications and thus the possibility of the
same being considered and granted could not be ruled out.
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14. Thus, the apprehension of the detaining authority while passing the
impugned detention order is rightfully based on cogent grounds of the
likelihood of the Petitioner securing bail and being released. In pursuance to
such strong apprehension, the impugned detention order was passed, based
on subjective satisfaction, to prevent the Petitioner from such release which
could possibly lead to more criminal activities on his part.
15. A perusal of the counter affidavit would also show that apart from
three FIRs which form the basis of the detention order and have been
discussed herein above, the Petitioner’s dossier record also revealed that he
was involved in 109 criminal cases since 1997. The relevant part from the
counter affidavit is reproduced herein below:
“2. That, in addition to the aforementioned cases,
the Petitioner is involved in many criminal cases
including the supply of illicit drugs and liquor.
Furthermore, a perusal of the Petitioner’s dossier
records reveals that he has been involved in 109
criminal cases from 1997, which makes it
abundantly clear that he is a hardcore criminal
offender and has high propensity towards
committing crime upon being enlarged on bail.”
16. The contention that the dossier record of the Petitioner reveals past
criminal records and the same has not been disclosed to the Petitioner while
passing the impugned detention order is one of the primary grounds of
challenge by the Petitioner in this writ petition. However, a perusal of the
counter affidavit reveals that such dossier record has been stated only in the
counter affidavit in order to justify the impugned detention order. Such a
justification cannot be made a basis to challenge the impugned detention
order on the ground of non-supply of material since it is only to support the
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subjective satisfaction of the authority concerned that the same has been
mentioned. As held by the Supreme Court in G. Reddeiah v. Govt. of A. P.,
(Supra) the detaining authority’s subjective satisfaction can be reflected
either in the detention order or even in the affidavit justifying the detention
order. The observations of the Supreme Court are extracted below:
“22. In a matter of detention, the law is clear
that as far as subjective satisfaction is concerned, it
should either be reflected in the detention order or in
the affidavit justifying the detention order. Once the
detaining authority is subjectively satisfied about the
various offences labelled against the detenu,
habituality in continuing the same, difficult to control
him under the normal circumstances, he is free to pass
an appropriate order under Section 3 of the 1986 Act
by fulfilling the conditions stated therein. We have
already concluded that there is no infirmity either in
the reasonings of the detaining authority or the
procedure followed by it. We are also satisfied that the
detenu was afforded adequate opportunity at every
stage and there is no violation of any of the safeguards.
In these circumstances, we reject the contention raised
by the learned Senior Counsel for the appellant.”
17. The last dismissal of the bail application and the perusal of the
detention order clearly shows a live and proximate link between all three
FIRs, which are the basis of the detention order, reflecting the clear
propensity on the part of the Petitioner, who committed violation of law
repeatedly. Even the quantity which has been alleged to have been
recovered, shows that if not for detention, the Petitioner would have, in all
likelihood, continued to indulge in similar activities. Moreover, the period of
detention has also elapsed. The Respondent has also taken a position that no
fresh proposal has been received to extend the detention. This is set out in
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the email dated 19th February, 2025 placed before the Court, which reads as
under:
“Sir,
With reference to the trailing mail and in the pursuance
of your email dated 17.02.2025 regarding the subject
cited above, it is submitted that the detention order was
executed upon the detenue on 04.03.2024, and therefore,
the said detention order will conclude on 03.03.2025.
Furthermore, no fresh proposal for preventive detention
has been received so far in this regard. It is also
submitted that the PITNDPS Act may kindly be referred
to, as there is no provision for the renewal of any
PITNDPS Detention Order.”
18. From a perusal of the impugned detention order, it is evident that the
detaining authority was well aware of the fact that the detenu was in custody
and has applied for bail for several times for his release in FIR bearing Nos.
14/2022 and 369/2020. It is also evident from the grounds as stated in the
impugned detention order that there was enough material on record
necessitating the preventive detention of the detenu. It also shows that the
detaining authority was well aware of the grounds of detention and the
chances of release of the detenu on bail. The gap between filing of bail
applications in FIR bearing nos. 14/2022 and 369/2020 and the date of
passing of the impugned detention order, cannot be said to be delayed or
having no live-link. The necessity of keeping the detenu in preventive
detention has been clearly indicated.
19. From all these facts and circumstances, it can be said that the
detaining authority is reasonably satisfied with the cogent material that there
is likelihood of release of the detenu and in view of his antecedent activities,
he must be detained to prevent him from engaging in illicit traffic in narcotic
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drugs and psychotropic substances.
20. In view of the above discussions, this court is of the opinion that there
is no infirmity in the reasoning of the detaining authority and the impugned
detention order dated 22nd February, 2024 calls for no interference as the
detaining authority has fully complied with the requisite procedure and
statutory safeguards.
21. Under these circumstances, the challenge to the detention order is not
tenable and the writ petition is dismissed accordingly along with any
pending applications, if any.
RAJNEESH KUMAR GUPTA
JUDGE
PRATHIBA M. SINGH
JUDGE
MARCH 12, 2025/abk
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