Judgment:
S.S. Parkar, J.
1. This petition has been filed by the uncle of the detenu by name Ajay Singh Maganlal Anjana challenging the order of detention passed under Section 3(1) of the PIT NDPS Act by the respondent No. 2.
2. The impugned order of detention was issued on 18-12-2001 by the respondent No. 2 and the same was executed and the detenu was taken into custody on the same day. The detenu was arrested under the provisions of the NDPS Act in Case No. 109 of 2001 on 14th June 2001 along with two other co-accused for being found in possession of 5 Kgs. of heroin. While he was in custody, the impugned order of detention was issued and the detenu was detained under the preventive detention from 18-12-2001.
3. The present petition has been filed challenging the order of detention on various grounds. However, the petition can be disposed of on the ground of non-application of mind as according to the petitioner, the Detaining Authority did not have any material before itself on the basis of which it could arrive at the subjective satisfaction that there was likelihood of the detenu being released on bail by the Court and on such release he was likely to engage himself in illicit traffic in narcotic drugs. The said ground has been taken in paragraph 4(v) of the petition which is sought to be met on behalf of the respondents in para 9 of the affidavit dated 9th September 2002 filed by B. R. Sharma, Under Secretary, Government of India, Ministry of Finance, Department of Revenue, PIT NDPS Cell, New Delhi. In para 9 of the reply affidavit it has been stated that launching of the prosecution is no bar for issuance of the order of detention for the object of prosecution is to penalise the offender for the offence committed, whereas the object of detention under the PIT NDPS Act is to prevent a person from acting in any prejudicial manner in future. It is further stated that what is important is that the Detaining Authority was fully conscious and alive to the fact that the detenu was yet in custody, however, in view of his past conduct and history showing his propensity and potentiality to indulge into prejudicial activities, the detaining authority was subjectively satisfied that issuance of the order of detention was necessary. It is further stated in the said paragraph that in the recent past the detenues whose detention orders were set aside by the Court on the ground that they were in custody and there was no likelihood of their release on bail, came out on bail after they were released on bail. Though reference is made to detention orders, i.e. more than one detention order, yet the illustration or example given in the reply is only in respect of one case.
4. Para 9 of the grounds of detention which records the subjective satisfaction of the detaining authority reads as follows:
'Even though prosecution proceedings under Narcotic Drugs and Psychotropic Substances Act, 1985 have been initiated against Ajay Singh Maganlal Anjana and even though he continues to be in judicial custody I am satisfied that there is every likelihood of his filing bail application, and also the likelihood of his being released on bail by the Court, and on such release, he is likely to engage himself in illicit traffic in narcotic drugs as is evident from material on record. I am, therefore, satisfied that there is compelling necessity to detain him under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing him from engaging in such activities.'
5. The counsel for the petitioner contended that under the NDPS Act because of the stringent conditions laid down for release of accused on bail under section 37 of the Act, the detenu who was arrested for being found in possession of 5 Kgs. of heroin is not likely to be released on bail. Secondly, it is contended that there is no material on record, either in the grounds of detention or in the affidavit filed on behalf of the respondents, much less cogent material, to arrive at the subjective satisfaction by the detaining authority that there was likelihood of the detenu being released on bail by the Court. Reliance is placed on the recent judgment of the Apex Court in the case of Amritlal v. Union Government reported in : 2001CriLJ474 . In that case, after considering its earlier judgments, the Supreme Court held that the concerned authority must satisfy itself of the likelihood of the detenu being released on bail and that satisfaction ought to be reached on cogent material. That was a case where the detenu was arrested in respect of the seizure of 132 Kgs. of opium and his application for bail was rejected by the Addl. District Judge. Subsequently the detenu was arrested under section 3(1) of the PIT NDPS Act. There were in all three accused persons out of whom two co-accused were already released on bail while the application for bail of the detenu was rejected at the level of the Addl. District Judge.
6. Reference may be also made to the decision of the Supreme Court in the case of Dharmendra Chelawat v. Union of India reported in : 1990CriLJ1232 which was decided by a Three Judge Bench of the Supreme Court. In para 21 of the said judgments the Apex Court drew its conclusions after referring to the earlier judgments of that Court and observed as follows:
'21. The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.'
7. From the above observations it is quite clear that for passing a valid order of detention in respect of a person already in custody, it is necessary that the grounds of detention must show that not only the detaining authority was aware of the fact that the detenu was already in custody, but there were compelling reasons justifying such detention despite the fact that the detenu was already in custody. The expression 'compelling reasons' was stated to mean that there must be cogent material before the detaining authority on the basis of which it may be satisfied that the detenu was likely to be released from custody in the near future and taking into account the nature of antecedent activities of the detenu it was likely that after his release from custody he would indulge in prejudicial activities.
8. On behalf of the respondents it was argued that in Amritlal's case (supra) there was already rejection of bail application made by the detenu whereas in the instant case the application for bail was not made by the detenu and, therefore, the ratio of the decision of the Supreme Court in Amritlal's case will not be applicable in the present case. We are unable to agree with this contention because this Court is bound by the principle laid down by the Apex Court which held that the subjective satisfaction of the detaining authority that there was likelihood of the detenu being released on bail must be reached on cogent material which was also the view expressed earlier by a three Judge Bench of the Supreme Court in Dharmendra's case (supra) where it was observed that there must be cogent material before the detaining authority on the basis of which it had arrived at the subjective satisfaction and that satisfaction must be that the detenu was likely to be released from custody in the near future. No such material was relied on by the detaining authority nor any brought to our notice which existed at the time of passing of the impugned order. Moreover we cannot be oblivious to the fact that in Amritlal's case two co-accused were already released on bail and the application for bail of the detenu was rejected not at the level of the High Court but by the Addl. District Judge and, therefore, apart from the fact that the detenu could have applied for bail before the Addl. District Judge on other grounds, he could have certainly applied to the High Court for grant of bail on the same grounds on which it was rejected by the Addl. District Judge. Thus the attempt on the part of the counsel for respondents to distinguish the ratio of the decision of the Supreme Court in Amritlal's case on the ground that detenu's application for bail was rejected in that case is illusory.
9. Reference was made by the counsel for the respondents to para 9 of the reply affidavit, filed not by detaining authority, who was Joint Secretary to the Government of India, but by the Under Secretary to the Government of India who was lower in rank than the detaining authority, to demonstrate as to on what basis the subjective satisfaction was arrived at by the detaining authority. It is stated in the said paragraph that the detaining authority was fully conscious and alive to the fact that the detenu was in custody, however, in view of his past conduct and history there was propensity and potentiality for the detenu indulging into prejudicial activities after his release on bail. The counsel, however, could not point out that the detenu had indulged in similar activities in the past to justify reference to his past conduct and history as alleged. He however contends that by history and past conduct is meant his arrest under the provisions of the NDPS Act in June 2001 as a result of which the pregnant detention order was clamped on him. It is trite to say that when there is averment made in the affidavit by a responsible officer of the Government of India of the level of Under Secretary, surely he must be knowing that use of the term like 'history' means, there must be some other incidents or incident of dealing in the narcotic drugs or indulging in other criminal offences by the detenu, apart from his arrest in June 2001 because of which the impugned order had been issued against him. Mr. Tripathi has categorically asserted that there was no past record nor antecedents of the detenu having indulged in narcotic drugs except the present incident.
10. Secondly, it is strange that an Under Secretary, who was not the Detaining Authority, has filed the affidavit to solemnly affirm about the alleged subjective satisfaction of the detaining authority. It is elementary to know that the subjective satisfaction of one person cannot be vouch safed, much less can be affirmed solemnly on an affidavit by any other person. We do not expect the Under Secretary to know the working of the mind of the detaining authority who was holding a post of Joint Secretary in the Government of India. Reference may be made to the decisions of the Supreme Court in the case of Biru Mahato v. District Magistrate, Dhanbad reported in : 1982CriLJ2354 and in the case of Merugu Satyanarayana v. State of A. P. reported in : 1982CriLJ2357 . In Biru Mahato's case the affidavit was filed by another District Magistrate about the arrival of the subjective satisfaction of the Detaining Authority who was also a District Magistrate, but other than the deponent of the reply affidavit. The Apex Court in that context observed in para 11 of the judgment as follows :
'...He may be the holder of office of District Magistrate. But when the subjective satisfaction holder of office is put in issue the mere occupant of office cannot arrogate to substitute his subjective satisfaction. He may speak from the record but that is not the case here. Therefore, the affidavit of Mr. Brara has to be ignored and one must reach the conclusion that the averments made by the detenu have remained uncontroverted.'
In that case it appears that the affidavit was filed by the successor of the detaining authority who had issued the detention order, even then the Supreme Court disregarded such affidavit with regard to the subjective satisfaction of the detaining authority who issued the order. In the present case the affidavit is filed not even by the successor of the detaining authority but by an officer lower in rank than the detaining authority. This completely answers the argument advanced on behalf of the respondents that the detaining authority is required to file affidavit only when mala fides are alleged.
11. In the case of M. Satyanarayana (supra) the reply affidavit was filed by Sub Inspector of Police about the alleged subjective satisfaction of the District Magistrate on whom the power was conferred by the Act to issue detention order. The Apex Court held that the Police Inspector cannot arrogate to himself the knowledge about the subjective satisfaction of the District Magistrate who issued the order.
12. Reliance is placed on behalf of the respondents on the judgment of the Division Bench of this Court delivered on 11th June 1996 in the case of Anjum Abdulla Muthalim v. State of Maharashtra reported in 1997 ALL MR 1789 The Division Bench in that case, after considering the earlier-judgments of the Apex Court and this Court, held that if the detaining authority shows its awareness that the detenu was in custody and if it 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, the order of detention can be validly passed. As stated earlier, in the instant case neither such material nor the antecedents of the detenu are brought to the fore or to our notice.
13. The Judgment of the Apex Court in Amritlal's case, which is referred to hereinabove, interpreted the earlier judgments of the Apex Court and we are bound by the view expressed in the said decision of the Supreme Court as regards the point in question. The judgment of the Apex Court in Amritlal's case was considered by the earlier Division Bench of this Court (D, G. Deshpande and S. K. Shah, JJ.) recently in Criminal Writ Petition No. 1615 of 2001 Haji Anwar Abdul Sattar v. The Union of India and ors. decided on 24th April 2002 and set aside order of detention in more or less identical facts. It was sought to be argued that that was a case where application for bail of the detenu was rejected. However, on perusal of the facts it is clear that the detenu in that case had applied for bail on medical grounds and not on merits which reserved his right to make an application on merits in the same way as it is open for the detenu in the present case to apply for bail. The fact that the detenu came to be released by this Court on bail subsequently, not on merits of the case but under Article 20(3) of the Constitution, is not relevant for our consideration. It is different thing that that point is under consideration before the larger Bench of this Court on a reference subsequently made on that point.
14. Apart from the above judgments reliance is also placed by Mr. Tripathi on the judgment of the Division Bench of Delhi High Court in the case of Sanjay Rajendra Sharma v. Union of India reported in : 88(2000)DLT458 in which the order of detention under the aforesaid preventive law was quashed on the ground that no material was placed on record to show that there was likelihood of the detenu getting released on bail and thereafter he was likely to indulge in illicit traffic of narcotic drugs. In that case Delhi High Court had considered the stringent provisions of Section 37 of the NDPS Act under which bail is not easily granted and, therefore, it was of the view that the order of detention amounted to double detention and as such was liable to be quashed. Delhi High Court had relied on the judgment of the Apex Court in Dharmendra's case (supra).
15. Under Section 37 of the NDPS Act a person cannot be released on bail unless and until the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and further that he is not likely to commit any offence while on bail. Apart from the fact that the latter portion of the said clause takes care of the intention, objective and the intendment of the preventive detention, if the' person is released on bail on the ground that there is reason to believe that he is not guilty of such offence, surely the basis for clamping down the order of preventive detention itself falls to the ground. The rigor of Section 37 of the NDPS Act can be illustrated by citing the order of the Apex Court in the case of Union of India v. Merajuddin reported in : 1999(66)ECC60 . That was a case where bail was granted by the High Court to an accused arrested under the provisions of the NDPS Act. The Supreme Court while seating aside the order granting bail observed that the High Court appeared to have completely ignored the mandate of Section 37 of the NDPS Act while granting bail by overlooking the prescribed procedure and, therefore, was improper. Allowing the appeal filed by the prosecution, the bail was cancelled. Moreover, in our view, nothing would prevent or debar the authority under the preventive law to issue the orders of detention in case the accused is released on bail.
16. In the aforesaid circumstances, we are satisfied that the impugned order of detention is issued without application of mind as there was no material for the detaining authority to arrive at the subjective satisfaction that there was likelihood of the detenu being released on bail by the Court and on such release he was likely to engage himself in illicit traffic in narcotic drugs as stated in para 9 of the grounds of detention. The alleged subjective satisfaction of the detaining authority appears to be illusory and without any material on record and consequently the impugned order of detention is liable to be quashed and set aside.
17. In the result, this petition is allowed and the rule is made absolute in terms of prayer Clause 8 (a) of the petition. The detenu Ajay Singh Maganlal Anjana shall be set at liberty forthwith unless required in any other case.
Issuance of certified copy is expedited.