Delhi High Court

Pabbar Giri @Vijay vs Union Of India And Ors. on 14 November, 2024

Author:
Amit Sharma

Bench:
Prathiba M. Singh
,
Amit Sharma

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 4th November, 2024
Date of Decision: 14th November, 2024

+ W.P.(CRL) 2114/2024
PABBAR GIRI @ VIJAY .....Petitioner

Through: Ms. Sia Das and Ms. Ria Das,
Advocates (M-9810941474).
Versus

UNION OF INDIA AND ORS. .....Respondents

Through: Mr. Anurag Ahluwalia, CGSC with
Mr. Kaushal Jeet Kait, GP
(M- 9811418995) for R-1 & R-2.
Ms. Nandita Rao, ASC (Crl.) for
GNCTD.
Insp. Parveen Kumar, Crime Branch &
SI Ravinder Singh, Spl. Staff Outer
Distt.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE AMIT SHARMA
JUDGMENT

AMIT SHARMA, J.

1. The present petition under
Articles 226
and
of the Constitution of
India read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023
(hereinafter referred to as 'BNSS') seeks the following prayers:

"i. a writ of Habeaus corpus and/or any other appropriate writ, order
and/or direction in the nature thereof may kindly be issued thereby
directing the respondents to release the petitioner from his illegal
detention in pursuance of the detention order dated 21.02.2024
passed by respondent no. 2 in file no. 11011/07/2024-PITNDPS under

Signature Not Verified

Digitally Signed By:BHASKAR

SINGH RAWAT

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17:19:09

section 3(1)
of the PIT NDPS Act, 1988 and to set the petitioner at
liberty forthwith, and,
ii. Issue Writ of mandamus and/or any other appropriate writ, order
and/or direction in the nature thereof, thereby directing the
respondents to place on record both the sets of original relied upon
documents i.e., Hindi and English, which were provided to the
petitioner while detaining him under
section 3(1)
of the prevention of
illicit traffic in narcotic drugs and psychotropic substances act, 1988
by the respondents."

iii. any other order, as may be deemed fit and proper under the facts
and circumstances of the case may also be passed in the matter in
favour of the petitioner and against the respondents."

2. The relevant facts for the purpose of adjudication of the present
petition are as under:

i. The present Petitioner is alleged to have been involved in the
following cases:

a.) FIR No. 72/2012 under
Sections 20
/
/
/
of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (hereinafter referred to as
'
NDPS Act
'), registered at PS: Crime Branch, Delhi for the effected
recovery of 88 kgs. Of Ganja (from the possession of the Petitioner
and the co-accused therein). The Petitioner was convicted vide order
dated 30th August, 2014 and was sentenced to undergo rigorous
imprisonment for 2 years 5 months and 15 days, i.e., the period
undergone alongwith a fine of Rs. 10,000/- vide order dated 2nd
September, 2014, passed by the Learned Additional Sessions Judge
(NDPS), West District, Delhi.

b.) FIR No. 202/2016 under
Sections 20
/
/
of the NDPS Act,
registered at PS: Crime Branch, Delhi for the effected recovery of
81.25 kgs. Of Ganja (from the possession of the Petitioner and the co-

Signature Not Verified

Digitally Signed By:BHASKAR

SINGH RAWAT

W.P.(CRL) 2114/2024 Page 2 of 27

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17:19:09

accused therein). The Petitioner was acquitted vide order dated 18th
October, 2018, passed by the Learned Special Judge (NDPS), Dwarka
Courts, Delhi.

c.) FIR No. 157/2023 under
Section 20(b)(ii)(C)
of the NDPS Act,
registered at PS: Ranhola, Delhi for the total effected recovery of
101.65 kgs. of Ganja (35 kgs. and 250 grams of Ganja was recovered
from the possession of the Petitioner himself). The chargesheet in this
matter was filed against the Petitioner and the co-accused(s) and the
Petitioner filed a bail application, which was dismissed vide order
dated 23rd September, 2023 by the Learned Special Judge (NDPS),
West, Delhi.

ii. On the basis of the alleged involvement of the Petitioner in the
aforesaid cases, Deputy Commissioner of Police, Delhi Police, ANTF,
Delhi, i.e., the Sponsoring Authority submitted a proposal dated 8th
December, 2023 to the Joint Secretary (PITNDPS) to the Government
of India, Ministry of Finance, Department of Revenue, New Delhi,
i.e., the Detaining Authority (Respondent no. 2) under the provisions
of the
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988
(hereinafter referred to as '
PITNDPS Act
').
Further information and documents were received from the
Sponsoring Authority by Respondent no. 2 on 25th January, 2024; who
subsequently forwarded the proposal to the Screening Committee on
29th January, 2024. The said proposal was considered by the Screening
Committee on 8th February, 2024 and the same was held to be fit for
preventive detention under the
PITNDPS Act
.

iii. Thereafter, Respondent no. 2 on 21st February, 2024 issued the

Signature Not Verified

Digitally Signed By:BHASKAR

SINGH RAWAT

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17:19:09

detention order bearing F. No. U-11011/07/2024-PITNDPS under

Section 3(1)
of the PITNDPS Act, which along with the 'grounds of
detention' and Relied Upon Documents ('RUDs') were served upon
the Petitioner in jail on 27th February, 2024 following the mandate of

Section 3(3)
of the PITNDPS Act.

iv. A reference to the Central Advisory Board (PITNDPS), Delhi
(hereinafter referred to as 'Advisory Board') was made vide letter
dated 27th March, 2024 by the Respondents under
Section 9(b)
of the
PITNDPS Act for the purposes of Clauses 4(a) and 7(c) of
Article 22

of the Constitution of India.

v. The matter was taken up by the Advisory Board and considering the
representation made by the Petitioner, the Sponsoring Authority and
the Detaining Authority (Respondent no. 2), the Advisory Board vide
report dated 10th May, 2024 confirmed the detention of the Petitioner.
Subsequently, considering the confirmation from the Advisory Board,
the Deputy Secretary, Government of India, Department of Revenue,
Ministry of Finance vide order bearing no. F. No. U-11012/07/2024-
PITNDPS dated 16th May, 2024 confirmed the detention order dated
21st February, 2024 and ordered for the Petitioner to be detained for a
period of one year with effect from 27th February, 2024, i.e., his
effective date of detention.

vi. The Petitioner through his Counsel made a representation dated 18 th
March, 2024 to the Detaining Authority (Respondent no. 2) for
revocation of the detention order dated 21st February, 2024, which
after consideration was rejected by Respondent no. 2 vide
Memorandum bearing no. F. No. U-11013/14/2024-PITNDPS dated

Signature Not Verified

Digitally Signed By:BHASKAR

SINGH RAWAT

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17:19:09

1st April, 2024.

vii. Further, the Petitioner had also made a representation on the even date,
i.e., 18th March, 2024 to the Secretary, Government of India,
Department of Revenue, Ministry of Finance (Respondent no. 1) for
revocation of the detention order dated 21st February, 2024, which
after consideration was rejected by them vide Memorandum bearing
no. F. No. U-11013/15/2024-PITNDPS dated 3rd April, 2024.

3. The facts with respect to the aforesaid cases registered by the
Sponsoring Authority have been discussed by the Detaining Authority
(Respondent no. 2) in the following manner:

a) FIR No. 72/2012 under
Sections 20
/
/
/
of the NDPS Act
registered at PS Crime Branch, Delhi:

i) Based on a secret information, the Petitioner alongwith co-accused Anil
Yadav were apprehended near the slum area in Raghuvir Nagar, Delhi with
an effected recovery of 88 kgs. of Ganja (from the possession of the Petitioner
and the co-accused therein) and accordingly the aforementioned FIR came to
be registered.

ii) The Petitioner alongwith the co-accused were arrested on 22nd March,
2012 and the chargesheet was filed before the Learned Additional Sessions
Judge, Tis Hazari Courts, Delhi against both of them.

iii) The Petitioner was convicted in the aforementioned case vide order
dated 30th August, 2014 and was sentenced to undergo rigorous imprisonment
for 2 years 5 months and 15 days, i.e., the period undergone alongwith a fine
of Rs. 10,000/- vide order dated 2nd September, 2014.

b) FIR No. 202/2016 under
Sections 20
/
/
of the NDPS Act
registered at PS Crime Branch, Delhi:

Signature Not Verified

Digitally Signed By:BHASKAR

SINGH RAWAT

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i) Based on a secret information, the Petitioner alongwith co-accused
Sumit@ Golu were apprehended near Dwarka Mod, Delhi with an effected
recovery of 81.25 kgs. of Ganja (from the possession of the Petitioner and the
co-accused therein) and accordingly the aforementioned FIR came to be
registered.

ii) The Petitioner alongwith the co-accused were arrested on 17th
December, 2016 and the chargesheet was filed before the Learned Chief
Metropolitan Magistrate, Dwarka Courts, Delhi against both of them.

iii) The Petitioner was acquitted in the aforementioned case vide order
dated 18th October, 2018.

c) FIR No. 157/2023 under
Sections 20(b)(ii)(C)
of the NDPS Act
registered at PS Ranhola, Delhi:

i) Based on a secret information, the Petitioner alongwith co-accused
persons namely, Pappu Rai and Geegal Kumar were apprehended with an
effected recovery of a total of 101.65 kgs. of Ganja (out of which, 35 kgs. and
250 grams of Ganja was recovered from the possession of the Petitioner) and
accordingly the aforementioned FIR came to be registered.

ii) In his disclosure statement, the Petitioner stated that he had met the co-
accused Pappu Rai alongwith one Awadesh and through the latter, the co-
accused Geegal Kumar, in and outside of jail in connection with the
aforementioned FIR No. 202/2016.

iii) Further, in the disclosure statement, it was stated that on 9th February,
2023, the Petitioner met the other two accused persons along with Awadesh
near Sabzi Mandi and that on 11th February, 2023, the said Awadesh directed
the Petitioner to meet him alongwith the other two accused persons, namely,
Pappu Rai and Geegal Kumar near Ranhola, where Awadesh gave 3 sacks of

Signature Not Verified

Digitally Signed By:BHASKAR

SINGH RAWAT

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17:19:09

Ganja to them and all three were apprehended while waiting for an auto.

iv) The Petitioner along with the co-accused Pappu Rai and Geegal Kumar
were arrested on 12th February, 2023 and the chargesheet was filed by the
Learned Additional Sessions Judge, Tis Hazari Courts, Delhi.

v) The Petitioner filed a bail application, which was dismissed vide order
dated 23rd September, 2023 by the Learned Special Judge (NDPS), West,
Delhi.

4. On the basis of the aforesaid facts and circumstances, the Detaining
Authority (Respondent no. 2) observed and recorded as under:

"2. After going through the facts and circumstances in all above-
mentioned cases, it is clearly established that you i.e. Pabbar Giri @
Vijay are actively involved in trafficking of Narcotic 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 are prejudicial to society.

3. I am aware that at present you i.e. Pabbar Giri @ Vijay are in
judicial custody since 12.02.2023 in Case FIR No. 157/23. 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. Pabbar Giri @ Vijay 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. Pabbar Giri @
Vijay 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. Pabbar Giri @
Vijay 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 Pabbar Giri @ Vijay i.e. you to repeat

Signature Not Verified

Digitally Signed By:BHASKAR

SINGH RAWAT

W.P.(CRL) 2114/2024 Page 7 of 27

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17:19:09

the above serious prejudicial acts. Hence, I am satisfied that in the
meantime you i.e. Pabbar Giri @ Vijay should be immobilized and
there is a need to prevent you i.e. Pabbar Giri @ Vijay 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. Pabbar Giri@ Vijay have indulged in
organizing the illicit trafficking of Narcotic Drugs and Psychotropic
substances as well as have a high propensity to engage in this illicit
activity, it is conclusively felt that if you are not detained under
section
3(1)
of the PITNDPS Act, 1988, you i.e. Pabbar Giri @ Vijay 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.
Pabbar Giri @Vijay 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. Pabbar Giri@ Vijay 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."

(emphasis supplied)

Signature Not Verified

Digitally Signed By:BHASKAR

SINGH RAWAT

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SUBMISSIONS ON BEHALF OF THE PETITIONER

5. Learned counsel for the Petitioner challenges the aforesaid detention
order on the following grounds:

A) Non-placing of vital documents before the Detaining Authority
Learned Counsel appearing on behalf of the Petitioner submits that with
respect to FIR no. 157/2023, the Petitioner was forcibly picked up by the
officers of Delhi police at around 11:30 p.m. on 11th February, 2023 from
Najafgarh Goushala Road, Krishna Mandir, Nangloi, Delhi and was kept
in police custody. Further, from there, he alongwith with the co-accused
Pappu Rai was taken near Park Hospital, Keshav Pur Mandi, where both of
them were kept in a vehicle. That at around 3:00 p.m., the officers took the
co-accused Pappu Rai to the aforesaid spot near Park hospital and in the
meantime, the other co-accused Geegal Kumar was called over phone to
come to the said spot and the Petitioner alongwith the accused person(s)
were taken to the concerned Police Station. Therefore, the Petitioner
contends that the aforementioned case was planted on him and that he
possesses a CD containing the CCTV footage to that effect, i.e., of 11th
February, 2023, which formed a part of judicial record before the Learned
Trial Court. The same CCTV footage was never placed before the
Detaining Authority (Respondent no. 2) by the Sponsoring Authority even
though the Petitioner drew attention to the said CCTV material through his
representations.

B) Delay in passing and execution of the Detention Order
Learned Counsel for the Petitioner submits that in FIR no. 157/2023, the
Petitioner was arrested on 12th February, 2023 and that the proposal was sent
by the Sponsoring Authority to the Detaining Authority (Respondent no. 2)

Signature Not Verified

Digitally Signed By:BHASKAR

SINGH RAWAT

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17:19:09

on 8th of December, 2023 with an approximate delay of 10 months, which was
further forwarded to the Screening Committee after approximately one month
and 20 days, i.e., on 29th January, 2024. It was further submitted that there
was no record as to when the Screening Committee accepted the said proposal
and the impugned detention order was then passed after approximately a
month, i.e., on 21st February, 2024. It is further contended that the said
detention order was only executed to the Petitioner after a period of 7 days
from passing of it, i.e., on 27th February, 2024.
C) Non-application of mind with respect to rigours of
Section 37
of the
NDPS Act
Learned counsel for the Petitioner submits that the Petitioner was arrested for
possession of commercial quantity and therefore, the rigours of
Section 37
of
the NDPS Act would come into play, which prohibits any Court from granting
bail to an accused possessing commercial quantity of narcotic drugs or
psychotropic substances unless the twin conditions are satisfied.
Section 37

of the NDPS Act 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 27A
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 grounds for
believing that he is not guilty of such offence and that he is not
likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-

section (1) are in addition to the limitations under the Code of

Signature Not Verified

Digitally Signed By:BHASKAR

SINGH RAWAT

W.P.(CRL) 2114/2024 Page 10 of 27

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Criminal Procedure, 1973 (2 of 1974) or any other law for the time
being in force on granting of bail."

(emphasis supplied)

In the present facts of the matter, the Detaining Authority was already
aware of the Petitioner being in judicial custody and yet the order of detention
was passed, as in the grounds of detention served to the Petitioner, in
paragraph no. 3, the Detaining Authority mentions "I am aware that at
present you i.e., Pabbar Giri@ Vijay are in judicial custody since 12.02.2023
in case FIR No. 157/23. 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." However, the
Detaining Authority was already aware of the rejection of the bail application
of the Petitioner in FIR No. 157/2023 vide order dated 23rd September, 2023
by the Learned Special Judge (NDPS), West, Delhi and the fact that the
Petitioner did not challenge the same. Thus, there was no compelling
necessity to pass the detention order after approximately 5 months of rejection
of the bail application.

D) No live or proximate link
Learned Counsel for the Petitioner submits that with respect to FIR No.
157/2023, the Petitioner was arrested on 12th February, 2023; however, the
Detaining Authority only passed the Detention order after an unexplained
delay of approximately one year on 21st February, 2024. Therefore, it is
contended that the delay in passing of the impugned detention order has
snapped the nexus/live-link between the alleged prejudicial activities of the
Petitioner and the purpose of "immobilising" him or detaining him.

Signature Not Verified

Digitally Signed By:BHASKAR

SINGH RAWAT

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17:19:09

6. Learned Counsel appearing on behalf of the Petitioner relies on the
following judgments:

i.
Sushanta Kumar Banik vs. State of Tripura and Others
SCC OnLine SC 1333
ii.
Shahid Khan @ Chote Pradhan vs. Union of India and Another

2024:DHC:3012-DB
iii.

Sumita @ Manto vs. Union of India
2003 SCC OnLine Del 294
iv. Dharmendra Suganchand Chelawat through his sister
KM.
Archana Chelawat and Another vs. Union of India
(1990) 1 SCC 746
v. Farukh @ Chapta vs. Union of India and Another
2024:DHC:3414-DB
vi.
Rizauddin @ Riyajuddin @ Riyajudden @ Pintu vs. Union of
India and Others
2024:DHC:6831-DB
vii.
Amardeep Singh Narang vs. Union of India and Others
2024:DHC:5820-DB
viii.
Pramod Singla vs. Union of India and Others
2023 SCC OnLine
SC 895

SUBMISSIONS ON BEHALF OF RESPONDENT NOS. 1 AND 2

7. Learned Central Government Standing Counsel appearing on behalf
of Respondent nos. 1 and 2 argued on the lines of the counter-affidavit filed
on their behalf. It was argued that in view of the prejudicial activities of the
present Petitioner and his continuous involvement in the
NDPS Act
, the
Sponsoring Authority felt the need to prevent him from any other activities
and therefore, a proposal for his detention was moved on 8 th December,
2023 and the same was placed before the Screening Committee on 29 th

Signature Not Verified

Digitally Signed By:BHASKAR

SINGH RAWAT

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January, 2024.

8. It is submitted on behalf of the Learned Counsel for the Respondent
nos. 1 and 2 that the objective of
PITNDPS Act
was to prevent persons of
such propensity to continue with their prejudicial activities despite the fact
that there are stringent conditions in the
NDPS Act
itself for bail as well as
quantum of punishments. It was further submitted that there was no delay
in passing of the detention order inasmuch as the prejudicial activities of
the Petitioner as highlighted in the grounds of detention clearly shows his
propensity to commit such offences in future and therefore in view of aims
and objectives of the
PITNDPS Act
, it was necessary for him to be
immobilised. Attention of this Court was drawn to the aims and objectives
of the
PITNDPS Act
, which reads as under:

"
An Act
to provide for detention in certain cases for the purpose of
preventing illicit traffic in narcotic drugs and psychotropic
substances and for matters connected therewith
Whereas illicit traffic in narcotic drugs and psychotropic
substances poses a serious threat to the health and welfare of the
people and the activities of persons engaged in such illicit traffic have
a deleterious effect on the national economy;

And whereas having regard to the persons by whom and the
manner in which such activities are organised and carried on, and
having regard to the fact that in certain areas which are highly
vulnerable to the illicit traffic in narcotic drugs and psychotropic
substances, such activities of a considerable magnitude are
clandestinely organised and carried on, it is necessary for the
effective prevention of such activities to provide for detention of
persons concerned in any manner therewith."

9. It is further submitted that the contention of the Petitioner that the
CCTV footage was not placed before the Detaining Authority is unfounded
inasmuch as the same is not part of the judicial record. Attention of this
Court was drawn to an order dated 3rd March, 2023 passed by the Learned

Signature Not Verified

Digitally Signed By:BHASKAR

SINGH RAWAT

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Trial Court in FIR No. 157/2023 wherein, while disposing of the
application under
Section 91
of the Cr.P.C. moved by the Petitioner, it was
observed as under:

"Fresh reply regarding the verification of the CTV footage
containing in the CD placed on record on behalf of applicant/
accused and regarding the preserving of CDR are filed.
Heard. I have perused the record as well as the report.
In the present case, accused has submitted that the recording of CTV
footage of Park Hospital was collected by his family. However, in al
the reports / reply including CCTV footage contained in the CD filed
on record on behalf of applicant / accused, it is reported that the same
could not be verified as same was deleted. In view of the averments in
the application and in view of the reply, the applicant/ accused is at
liberty to keep the CD with him and may use in his defence at
appropriate stage as per law. The application
u/s 91
Cr.P.C for
preserving the CCTV Footage filed
u/s 91
Cr.P.C are disposed off
accordingly.

So far as the CDR of abovesid two mobiles numbers are concerned, it
is reported that the same is directed to be preserved. In view of the
same, the application filed to preserve the CDR is disposed off with
directions that IO will take necessary steps to get the CDR preserved
during the pendency of the present case.

Applications are disposed off accordingly.

Copy of this order be given dasti to the parties/IO
Applications be clubbed as and when the chargesheet filed in
the present case."

It is submitted that in view of the same it is clear that the CCTV
footage was not part of the Trial Court record; however, it was in the
possession of the Petitioner himself. Therefore, not placing the same would
not have any bearing on the detention order.

10. Learned counsel appearing on behalf of the Respondent nos. 1 and 2
sought to distinguish the judgments passed by this Court in Riyazuddin
(supra) and Amardeep Singh Narang (supra) to submit that the
documents discussed in those judgments were of material in nature and

Signature Not Verified

Digitally Signed By:BHASKAR

SINGH RAWAT

W.P.(CRL) 2114/2024 Page 14 of 27

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17:19:09

therefore non-consideration of the same by the Detaining Authority was
treated to be fatal to the detention order made therein. It is submitted that
in the present case, the CCTV footage relied upon by the Petitioner is not a
part of the Trial Court and therefore the said judgments would not be
applicable in the present case.
Similarly, in
Sushanta Kumar Banik

(supra), it is pointed out that delay in passing the detention order was after
the grant of bail to the Appellant therein and therefore the said case would
be distinct from the present one as the Petitioner had not been granted bail
in the present case.

ANALYSIS AND FINDINGS

11. Heard Learned Counsels for the parties and perused the record.

12. The following dates are relevant for deciding the present petition:

a) The Petitioner was arrested in case FIR No. 157/2023 registered at
P.S. Ranhola on 12th February, 2023.

b) The Petitioner filed a bail application which was dismissed vide
order dated 23rd September, 2023 by the Learned Special Judge
(NDPS), West Delhi.

c) The proposal for detention was forwarded by the Sponsoring
Authority to the Detaining Authority on 8th December, 2023. It is
pertinent to note that on the said date, there was no application
pending on behalf of the Petitioner seeking bail in the aforesaid FIR.

On a specific query made by this Court during the course of the
hearing, the Investigating Officer informed that the other two co-
accused persons were also in judicial custody and had not been
granted bail.

Signature Not Verified

Digitally Signed By:BHASKAR

SINGH RAWAT

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d) The detention order was passed on 21st February, 2024.

13. This Court is of the considered opinion that there was considerable
and unreasonable delay from the date of the arrest of the Petitioner and that
of sending the proposal for detention. It is also a matter of record, as pointed
out hereinabove, that the bail application of the Petitioner was dismissed
on 23rd September, 2023 and on the date when the proposal was moved,
i.e., on 8th December, 2023; no application seeking bail was pending. On
the examination of the proposal (annexed with the Status Report filed on
behalf of Respondent no. 3), it is observed that the Sponsoring Authority
has not given any explanation with regard to the reason for moving the
proposal in the circumstances where the bail of the Petitioner had already
been dismissed and no application was pending. There is no explanation by
the Sponsoring Authority as to reasonable grounds to believe that the
Petitioner being already in judicial custody and immobilised, would be
likely to be released on bail and commit prejudicial activities as alleged in
the grounds of detention.

14. The Hon'ble Supreme Court in
N. Meera Rani vs. State of Tamil
Nadu and Another
(1989) 4 SCC 418, after reviewing various decisions
on the subject, held as under:

"11. The contents of the detention order and its accompanying
annexure clearly show that the detaining authority was aware and
conscious of the fact that the detenu was already in custody in
connection with the Bank dacoity at the time of making the detention
order. The fact that the detenu's application for grant of bail in the
dacoity case had been rejected on 22-8-1988 and he was remanded to
custody for the offence of bank dacoity punishable under
Section 397

IPC is also evident from the record. The detention order came to be
made on 7-9-1988 on the above grounds in these circumstances. In
the detention order the detaining authority recorded its satisfaction
that the detenu's preventive detention was necessary to prevent him

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from indulging in activities prejudicial to maintenance of public order
in which he would indulge if he was allowed to remain at large. The
above quoted paras 18 and 19 of the Annexure to the detention order
clearly disclose the factual position. However, it may be pointed out
that the detention order read along with its annexure nowhere
indicates that the detaining authority apprehended the likelihood of
the detenu being released on bail in the dacoity case and, therefore,
considered the detention order necessary. On the contrary, its
contents, particularly those of the above quoted para 18 clearly
mention that the detenu had been remanded to custody for being
proceeded against in due course and even though his name was not
mentioned in the FIR as one of the dacoits who participated in the
commission of the armed Bank dacoity yet the documents clearly
revealed that the detenu was an active participant in the conspiracy
to loot the bank in furtherance of which the dacoity was committed;
and that considerable booty of that crime including weapons, bombs
and hand grenades were recovered from his possession pursuant to
the detenu's confession made after his arrest. These averments in the
detention order indicate the satisfaction of the detaining authority
that in its view there was ample material to prove the detenu's active
participation in the crime and sharing the booty for which offence
he had already been taken into custody. This view of the detaining
authority negatives the impression of likelihood of detenu being
released on bail.

*** *** ***

21. A review of the above decisions reaffirms the position which was
settled by the decision of a Constitution Bench in Rameshwar Shaw
case [AIR 1964 SC 334 : (1964) 4 SCR 921 : (1964) 1 Cri LJ 257] .
The conclusion about validity of the detention order in each case was
reached on the facts of the particular case and the observations made
in each of them have to be read in the context in which they were
made. None of the observations made in any subsequent case can be
construed at variance with the principle indicated in Rameshwar
Shaw case [AIR 1964 SC 334 : (1964) 4 SCR 921 : (1964) 1 Cri LJ
257] for the obvious reason that all subsequent decisions were by
Benches comprising of lesser number of Judges. We have dealt with
this matter at some length because an attempt has been made for some
time to construe some of the recent decisions as modifying the
principle enunciated by the Constitution Bench in Rameshwar Shaw
case [AIR 1964 SC 334 : (1964) 4 SCR 921 : (1964) 1 Cri LJ 257] .

22. We may summarise and reiterate the settled principle. Subsisting

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custody of the detenu by itself does not invalidate an order of his
preventive detention and the decision 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 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; but, even so, if the detaining authority is reasonably satisfied
on cogent material 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 even
in anticipation to operate on his release. This appears to us, to be the
correct legal position.

23. Applying the above settled principle to the facts of the present case
we have no doubt that the detention order, in the present case, must
be quashed for this reason alone. The detention order read with its
annexure indicates the detaining authority's awareness of the fact
of detenu's jail custody at the time of the making of the detention
order. However, there is no indication therein that the detaining
authority considered it likely that the detenu could be released on
bail. In fact, the contents of the order, particularly, the above quoted
para 18 show the satisfaction of the detaining authority that there
was ample material to prove the detenu's complicity in the Bank
dacoity including sharing of the booty in spite of absence of his
name in the FIR as one of the dacoits. On these facts, the order of
detention passed in the present case on 7-9-1988 and its
confirmation by the State Government on 25-10-1988 is clearly
invalid since the same was made when the detenu was already in jail
custody for the offence of bank dacoity with no prospect of his
release. It does not satisfy the test indicated by the Constitution
Bench in Rameshwar Shaw case [AIR 1964 SC 334 : (1964) 4 SCR
921 : (1964) 1 Cri LJ 257] . We hold the detention order to be invalid
for this reason alone and express no opinion on merits about the
grounds of detention." (emphasis supplied)

15. At this stage, it will be apposite to refer to a judgement of the Hon'ble
Supreme Court in
Rajinder Arora vs. Union of India and Others
(2006) 4
SCC 796. In the said case, the petitioner therein was arrested on 28th May,

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2004 and order of detention was issued on 31 st March, 2005. The Hon'ble
Supreme Court while taking note of the same, observed and held as under:

"20. Furthermore no explanation whatsoever has been offered by the
respondent as to why the order of detention has been issued after such
a long time. The said question has also not been examined by the
Authorities before issuing the order of detention.

21. The question as regards delay in issuing the order of detention has
been held to be a valid ground for quashing an order of detention by
this Court in
T.A. Abdul Rahman v. State of Kerala
[(1989) 4 SCC
741 : 1990 SCC (Cri) 76 : AIR 1990 SC 225] stating: (SCC pp. 748-
49, paras 10-11)
"10. The conspectus of the above decisions can be
summarised thus: The question whether the prejudicial
activities of a person necessitating to pass an order of
detention is proximate to the time when the order is
made or the live-link between the prejudicial activities
and the purpose of detention is snapped depends on the
facts and circumstances of each case. No hard-and-fast
rule can be precisely formulated that would be
applicable under all circumstances and no exhaustive
guidelines can be
laid down in
that behalf. It follows
that the test of proximity is not a rigid or mechanical
test by merely counting number of months between the
offending acts and the order of detention. However,
when there is undue and long delay between the
prejudicial activities and the passing of detention order,
the court has to scrutinise whether the detaining
authority has satisfactorily examined such a delay and
afforded a tenable and reasonable explanation as to
why such a delay has occasioned, when called upon to
answer and further the court has to investigate whether
the causal connection has been broken in the
circumstances of each case.

11. Similarly when there is unsatisfactory and
unexplained delay between the date of order of
detention and the date of securing the arrest of the
detenu, such a delay would throw considerable doubt
on the genuineness of the subjective satisfaction of the
detaining authority leading to a legitimate inference
that the detaining authority was not really and

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genuinely satisfied as regards the necessity for
detaining the detenu with a view to preventing him from
acting in a prejudicial manner."

22. The delay caused in this case in issuing the order of detention has
not been explained. In fact, no reason in that behalf whatsoever has
been assigned at all."

16. Learned Division Bench of this Court in
Gurminder Singh @ Lalli
vs. Union of India and Others
1999 SCC OnLine Del 85 in a similar
situation held as under:

"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
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 Drugs and Psychotropic
Substances Act.

7.
In
Kamarunnissa v. Union of India and another
, (1991) 1 S.C.C.
128, 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
possibility 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 v. State of Maharashtra and others
, (1986) 4 S.C.C. 378;
Smt.

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Shashi Aggarwal v. State of U.P. and Others
, (1988) 1 S.C.C. 436;
N.
Meera Rani v. Government of Tamil Nadu and Another
, (1989) 4
S.C.C. 418; and
Anand Prakash v. State of U.P. and Others
, (1990) 1
S.C.C. 291.

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."

(emphasis supplied)

17. It is the case of the Sponsoring Authority itself that the present
Petitioner is a previous convict under the
NDPS Act
and keeping in mind
the rigours of
Section 37
of the NDPS Act, it was incumbent upon the
Sponsoring Authority as well as the Detaining Authority to apply its mind
on this aspect. The order of detention simply records the fact that the
Petitioner is in judicial custody and is likely to indulge in prejudicial
activities if released on bail; however, there is no satisfaction shown in the
order of detention as to the likelihood of the Petitioner being released on
bail in these circumstances. In fact, other co-accused persons had not been
granted bail and were in judicial custody.

18. The submissions on behalf of Respondent nos. 1 and 2 with respect to
the object of the
PITNDPS Act
, is not in dispute. However, the detention order
should be in compliance with the procedural safeguards provided in law. The
subjective satisfaction of the Detaining Authority is open to judicial review
by the Constitutional Court.

19. The Courts would normally hesitate to substitute the "subjective
satisfaction" with its own opinion and interfere with the order of detention;
however, such satisfaction should be after proper application of mind. In case,
the Court finds the same being passed on account of non-application of mind,

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then the same can be set aside by this Court while exercising its power under

Article 226
of the Constitution of India.

20.
In
Ameena Begum vs. State of Telangana and Others
(2023) 9 SCC
587, the Hon'ble Supreme Court while referring to various judgments with
respect to judicial reviewability of a detention order, observed and held as
under:

"15.
In
Rameshwar Shaw v. District Magistrate
,

Burdwan [Rameshwar Shaw v. District Magistrate, Burdwan
, 1963
SCC OnLine SC 33 : AIR 1964 SC 334] , a Constitution Bench
speaking through Hon'ble P.B. Gajendragadkar, J. (as the Chief
Justice then was) in course of interdicting an order of detention
passed under
Section 3
of the Detention Act held as follows : (AIR p.
337, paras 7-8)
"7. There is also no doubt that if any of the grounds
furnished to the detenu are found to be irrelevant while
considering the application of clauses (i) to (iii) of

Section 3(1)(a)
and in that sense are foreign to the Act,
the satisfaction of the detaining authority on which the
order of detention is based is open to challenge and the
detention order liable to be quashed. Similarly, if some
of the ground supplied to the detenu are so vague that
they would virtually deprive the detenu of his statutory
right of making a representation, that again may
introduce a serious infirmity in the order of his
detention. If, however, the grounds on which the order
of detention proceeds are relevant and germane to the
matters which fall to be considered under
Section
3(1)(a)
, it would not be open to the detenu to challenge
the order of detention by arguing that the satisfaction of
the detaining authority is not reasonably based on any
of the said grounds.

8. It is, however, necessary to emphasise in this
connection that though the satisfaction of the
detaining authority contemplated by
Section 3(1)(a)
is
the subjective satisfaction of the said authority, cases
may arise where the detenu may challenge the validity
of his detention on the ground of mala fides and in
support of the said plea urge that along with other

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facts which show mala fides, the Court may also
consider his grievance that the grounds served on him
cannot possibly or rationally support the conclusion
drawn against him by the detaining authority. It is
only in this incidental manner and in support of the
plea of mala fides that this question can become
justiciable; otherwise the reasonableness or propriety
of the said satisfaction contemplated by
Section 3(1)(a)

cannot be questioned before the Courts."

*** *** ***

17. In Icchu Devi Choraria v. Union of India [Icchu Devi
Choraria v. Union of India, (1980) 4 SCC 531 : 1981 SCC (Cri) 25] ,
the judicial commitment to strike down illegal detention, even when
the petition on which rule was issued did not have the requisite
pleadings, was highlighted in the following words : (SCC p. 538, para

5)
"5. ... Where large masses of people are poor, illiterate
and ignorant and access to the courts is not easy on
account of lack of financial resources, it would be most
unreasonable to insist that the petitioner should set out
clearly and specifically the grounds on which he
challenges the order of detention and make out a prima
facie case in support of those grounds before a rule is
issued or to hold that the detaining authority should not
be liable to do any thing more than just meet the specific
grounds of challenge put forward by the petitioner in the
petition. The burden of showing that the detention is in
accordance with the procedure established by law has
always been placed by this Court on the detaining
authority because
Article 21
of the Constitution provides
in clear and explicit terms that no one shall be deprived
of his life or personal liberty except in accordance with
procedure established by law. This constitutional right
of life and personal liberty is placed on such a high
pedestal by this Court that it has always insisted that
whenever there is any deprivation of life or personal
liberty, the authority responsible for such deprivation
must satisfy the court that it has acted in accordance with
the law. This is an area where the court has been most
strict and scrupulous in ensuring observance with the

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requirements of the law, and even where a requirement
of the law is breached in the slightest measure, the court
has not hesitated to strike down the order of detention or
to direct the release of the detenu even though the
detention may have been valid till the breach occurred.

The court has always regarded personal liberty as the
most precious possession of mankind and refused to
tolerate illegal detention, regardless of the social cost
involved in the release of a possible renegade."

(emphasis supplied)

*** *** ***

22. On a conspectus of the decisions referred to above and other
decisions on preventive detention, we may observe here that the
argument commonly advanced on behalf of detaining authorities in
the early days of the Constitution was that the Court's enquiry ought
to be confined to whether there is an order of detention or not and the
moment such an order, good on its face, is produced, all enquiry into
good faith, sufficiency of the reasons or the legality or illegality of the
action comes to an end. However, with passage of time, and expansion
and development of law, it is no longer the law that a preventive
detention action, howsoever lawful it might appear on its face, cannot
be invalidated by the constitutional courts. This is so, as at present,
there is no administrative order affecting rights of the subjects that
can legitimately claim to be impregnably guarded by a protective
shield, which judicial scrutiny cannot penetrate.

23. Apart from the aforesaid decisions, multiple decisions have been
rendered by this Court over the years which provide suitable guidance
to us to complete the present exercise; however, we wish to conclude
this discussion by referring to one decision of this Court delivered
[Rekha v. State of T.N., (2011) 5 SCC 244 : (2011) 2 SCC (Cri) 596]
little in excess of a decade back by a Bench of 3 Judges.

24.
In
Rekha v. State of T.N. [Rekha
v. State of T.N., (2011) 5 SCC
244 : (2011) 2 SCC (Cri) 596] , this Court observed that : (SCC pp.
253-55, paras 21 & 29)
"21. It is all very well to say that preventive detention is
preventive not punitive. The truth of the matter, though,
is that in substance a detention order of one year (or any
other period) is a punishment of one year's
imprisonment. What difference is it to the detenu whether
his imprisonment is called preventive or punitive?

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* * *

29. Preventive detention is, by nature, repugnant to
democratic ideas and an anathema to the Rule of law.
No such law exists in the USA and in England (except
during war time). Since, however,
Article 22(3)(b)
of the
Constitution of India permits preventive detention, we
cannot hold it illegal but we must confine the power of
preventive detention within very narrow limits,
otherwise we will be taking away the great right to
liberty guaranteed by
Article 21
of the Constitution of
India which was won after long, arduous and historic
struggles. It follows, therefore, that if the ordinary law
of the land (the Penal Code and other penal statutes) can
deal with a situation, recourse to a preventive detention
law will be illegal." [Ed. : It would appear that this
entire extract from paras 21 and 29 of Rekha, (2011) 5
SCC 244 : (2011) 2 SCC (Cri) 596, and in particular the
observation in para 29, that preventive detention is not
permissible when the ordinary law of the land can deal
with the situation, is per incuriam paras 19 and 32 to 34
of the Constitution Bench in
Haradhan Saha v. State of
W.B.
, (1975) 3 SCC 198 : 1974 SCC (Cri) 816, as held
para 26 of the present judgment hereinbelow. Paras 19
and 32 to 34 of Haradhan Saha have been set out in the
Headnote at SCC pp. 589-

90.] (emphasis in original)

25. There could be little doubt with the thought process that
although the executive would pass an order under the preventive
detention laws as a preventive or a precautionary measure, its effect
viewed strictly from the standpoint of the detenu is simply and
plainly punitive. Significantly, an order of detention is not relatable
to an alleged commission of offence which a court is seized of and,
thus, the conduct of the accused complained of, is yet to be found
blameworthy; on the contrary, since it relates to an anticipated
offence based on past conduct, the detenu could well feel that he is at
the receiving end of a subjective satisfaction of the executive despite
he not being proved to be on the wrong side of the law on any previous
occasion. If someone loses his liberty and lands up in prison not
having a semblance of a chance to resist or protest, the very
circumstance of being put behind bars for such period as specified

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in the order of detention based on an anticipation that an offence is
likely to be committed by him seems to be an aspect which does not
sync with the norms and ethos of our very own Constitution and the
decisions of this Court in which the concept of "life" has been
explained in such a manner that "life" has been infused in the
letters of
Article 21 (see Common Cause v. Union of India [Common
Cause v. Union of India
, (1999) 6 SCC 667 : 1999 SCC (Cri) 1196] ).
Nonetheless, so long clause (3) of
Article 22
of the Constitution itself
authorises detention as a preventive measure, there can be no two
opinions that none can take exception to such a measure being
adopted and it is only a limited judicial review by the constitutional
courts that can be urged by an aggrieved detenu wherefor too, in
examining challenges to orders of preventive detention, the Courts
would be loath to interfere with or substitute their own reasoning for
the subjective satisfaction arrived at by the detaining authority. Since
the object of a preventive detention law is not punitive but preventive
and precautionary, ordinarily it is best left to the discretion of the
detaining authority."

(emphasis supplied)
[paragraph in bold and underline: emphasis supplied
by this Court and paragraph underlined: emphasis in the original
judgement]

21. In the present circumstances, this Court is of the considered opinion
that there is no live or proximate link between the alleged prejudicial activities
of the Petitioner and that of passing of the detention order. Further considering
the fact that the bail of the Petitioner was rejected and he was already
immobilised, the propensity to further indulge in any unlawful activity also
did not exist at the time when the impugned order of detention was passed.

22. In view thereof, the order dated 21st February, 2024 is hereby set aside.

23. The present petition is allowed and disposed of accordingly.

24. Pending application(s), if any, also stands disposed of.

25. It is made clear that observation(s) made are with respect to the present
petition only and not with respect to any cases pending trial against the
Petitioner.

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26. Judgment be uploaded on the website of this Court forthwith.

AMIT SHARMA
(JUDGE)

PRATHIBA M. SINGH
(JUDGE)
NOVEMBER 14, 2024/bsr

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