AMRITLAL AND ORS.versusUNION GOVERNMENT THROUGH SECRETARY, MINISTRY OF FINANCE AND ORS.

A                             AMRITLAL AND ORS.
                                          v.
          UNION GOVERNMENT THROUGH SECRETARY, MINISTRY OF
                        FINANCE AND ORS.


B
                               NOVEMBER 7, 2000                                      -
            [UMESH C. BANERJEE AND K.G. BALAKRISHNAN, JJ.)


           P_revention of Illicit Traffic in Narcotic Drugs and Psychotropic
C    Substances Act, 1988 : Section 3(1).

          Narcotic Drugs and Psychotropic Substances Act, 1985 : Sections 8
     and 18.

         Preventive Detention-Detention order against a person already in
D   custody-Necessary conditions for validity of such an order.

           Preventive detention-Seizure of opium from appellant-Charge under
    Sections 8 and 18 of the N.D.P.S. Act-Rejection of bail application filed by
    appellant-Subsequently appellant detained under P.I. TN.D.P.S. Act, 1988-
    0rder passed on the ground that there was likelihood of the appellant
E   moving the bail application-Writ challenging detention order-Rejection
    on the ground that the detaining authority had shown awareness of the
    petitioner being in custody and had also provided compelling reasons-
    Appea/ before Supreme Court-Held, for validity of an order passed against
    a person in custody the necessary requirement is that there must be likelihood
    of the petitioners being released on bail-Jn the instant case the reasoning
F   available is the 'likelihood of appellant moving an application for bail'
    which is different from 'likelihood to be released on bail'-This reasoning,
    is not sufficient compliance with the requirements laid down-Detention
    order held not valid
                                                                                     -
G          Rivadeneyta Ricardo Augustine v. Govt. of the National Capital
    Territory ofDelhi & Ors., 119941 Supp. I SCC 597 and Kumarunnissav. Union
    of India, 1199111SCC128, referred to.

          Binod Singh v. District Magistrate, Dhanbad, 1198614 SCC 416, relied
    on.
H
                                        450
     AMRITLAL 1·. UNION GOVT. THROUGH SECRETARY, MINISTRY OF FINANCE 45 J


    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 838-                       A
841of1999.

     From the Judgment and Order dated 5.8.98 of the Madhya Pradesh High
Court in W.P. Nos. 1858, 1860, 1862 and 1859of1997.

      Pallav Shishodia and Abhijat P. Medh for the Appellants.
                                                                                      B
      A.S. Rawat for D.S. Mehra for the Respondents.

      The following Order of the Court was delivered :

      In these appeals the validity of the order of detention passed by the
Joint Secretary to the Government of India stands challenged.                         C
       The contextual facts depict that the appellants were arrested pursuant
 to the raid conducted by the officers of the Central Bureau of Narcotics
 leading to the seizure of 132 Kgs. of opium and crime No. 22/96 was registered
against them under sections 8/18 of the Narcotics Drugs and Psychotropic              D
Substances Act, 1985 (for short 'the Act'). The appellants prayed for being
 released on bail, but the Addi. District Judge, Neemuch, rejected the application.
 Subsequently however they were detained under section 3( I) of the Prevention
of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for
short 'the PITNDPS Act') by order dated 5.6.1997. The record depicts that the
grounds of detention were communicated to the appellants within the stipulated        E
time and subsequently by order dated 17.8.1997 their detention has been
confinned. The appellants moved the High Court on the ground that it was
illegal and invalid as the detaining authority passed the order mechanically
and without application of mind and that facts do not justify their detention.
 In any event the detention was further challenged on the ground of the same          F
being punitive in nature. The Division Bench of the High Court however
dismissed the petitions on the ground that the detaining authority had shown
awareness of the petitioners being in the custody and had also communicated
the compelling reasons 'by hinting at the likelihood of their enlarging on bail'.
The Division Bench of the High Court while dealing with the matter did take
into consideration the factum of the two other persons connected with the             G
occurrence being released on bail and, as such, the detaining authority was
not oblivious of the petitioners' custody and had also provided compelling
reasons under section 3( 1) of the Act.

      Learned advocate appearing in support of the appeals during the course
of hearing informed this Court that while it is true that by reason of efflux of      H
     452                    SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.

A    time the period of detention has otherwise expired but continued to press the
     appeal with some emphasis by reason of the consequences as provided in the
     statute to wit: the forfeiture of the property of the detenue and it is in this
     context strong reliance has been placed on the decision of this Court in
     Rivadeneyta Ricardo Augustin v. Govt. of the National Capital Territory of
B    Delhi & Ors., (1994] Supp. 1 SCC 597. This Court while dealing with the matter
     and relying upon the decision of this Court in Kamarunnissa v. Union of
     India, [ 1991] I SCC 128 came to the conclusion that the order of detention
     cannot but be quashed. In Kamarunnissa 's case (supra) this Court was
     pleased to observe thus :-

c                "The decisions of this Court to which our attention was drawn by
            the learned counsel for the petitioners lay down in no uncertain terms
            that detention orders can validly be passed against detenus who are
            in jail, provided the officer passing the order is alive to the fact of the
            detenus being in custody and there is material on record to justify his
            conclusion that they would indulge in similar activity if set at liberty."
D
           In Augustin's decision (supra) this Court also placed strong reliance on
    an earlier but oft-cited decision of this Court in Binod Singh v. District
    Magistrate, Dhanbad, [ 1986] 4 SCC 416 wherein it was held that if a person
    is in custody and there is no imminent possibility of his being released
    therefrom, the power of detention should not ordinarily be exercised. This
E   Court held that there must be cogent materials before the officer passing the
    detention order tha.t the detenue is likely to be released on bail. The inference
    must be drawn from the available material on record and must not be the ipsi
    dixit of the. officer passing the order of detention. It is in this perspective as
    above, that the recording of the concerned officer in the matter under reference
F   ought to be noticed and the same reads as below :-

                "Even though prosecution proceedings under Narcotic Drugs and
            Psychotropic Substances Act, 1985 have been initiated against Shri
            Amritlal I am satisfied that there is compelling necessity in view of the
            likelihood of his moving an application for bail and in the event of his
G           being granted bail, the likelihood of his indulging in illicit traffic in
            narcotic drugs as is evident from the trend of his activities, to detain
            him under the Prevention of Illicit Traffic in Narcotic Drugs a!ld
            Psychotropic Substances Act, 1988."

         It is this reasoning which the learned advocate contended that the High
H   Court should have held to be completely erroneous in the matter of being the
    AMRITLAL v. UNION GOVT. THROUGH SECRETARY, MINISTRY OF FINANCE 453

basis of an order of detention.                                                    A
      The requirement as noticed above in Binod Singh 's case, (supra) that
there is 'likelihood of the petitioners being released.on bail' that however is
not available in the reasonings as provided by the concerned offic~r.:~The
reasoning available is the 'likelihood of his mo'"Ving an application for bail'
which is different from 'likelihood to be released on bail'. This reasoning, in    B
our view, is not ~ufficient compliance wlth,the requirements as laid down.

       The emphasis however, in Binod Singh 's case (supra) that before passing
the detention order the co11cerned authority must satisfy himself of the
likelihood of the petitioner being released on bail and that satisfaction ought    C
to be reached on cogent material. Available cogent ma.terial is the likelihood
of having a bail application moved in the matter but not obtaining a bail order.

     On the wake of the aforesaid, we do not feel inclined to record our
concurrence with the order of detention passed in the matter. As such the
same is quashed. The appeals are disposed of accordingly.                          D .
T.N.A.                                                   Appeals disposed of: