JUDGMENT
G.L. Gupta, J.
1. The petitioner Kehar Singh is the father of Harjeet Singh who has been detained under the Prevention of Illicit Traffic in Narcotic-Drugs Psychotropic Substances Act, 1988 (hereinafter referred to as the ‘PIT NDPS Act’). An order was made by Shri A. K. Srivastava, Joint Secretary to the Government of India on 19th August, 1996 under Section 3(1) of the PIT NDPS Act for the detention of Harjeet Singh and grounds of detention were supplied to him. This order was subsequently confirmed by the Government of India vide order dated 20th November, 1996 and it was directed that Shri Harjeet Singh would be detained for a period of two years.
2. In the Habeas Corpus petition filed on 17-12-1996, the detention order was challenged on various grounds but Mr. Kalla confined his arguments to only Ground No. 3, and therefore the other grounds are not being mentioned in this order. Ground No. 3 is that detenu Harjeet Singh was already in jail when the order of detention was passed and there was no likelihood of his being released on bail and therefore, the order is contrary to the provisions of law and contrary to the rights given under the Constitution of India.
3. In the reply, the respondents justified the detention order. As regards Ground No. 3 it was submitted that the detaining authority while passing the detention order duly considered the fact of detenue being in judicial custody and alter taking into consideration the fact that there were chances of detenue’s releasing on bail, the detaining authority after due application of mind passed the detention order which cannot be said to be illegal and contrary to the rights of the detenu given under the Constitution.
4. In the rejoinder, the petitioner reiterated the averments made in the habeas corpus petition. It was further stated that there was neither any compelling reason nor any necessity of passing the detention order against the detenu and he had not moved bail application.
5. In the order dated 19th August, 1996 passed by Shri A. S. Srivastava, Joint Secretary to the Government of India, it was stated that the of the case with respect to the detenue that he was engaged in the possession, concealment and transportation of narcotic drugs and that it was necessary to detain him under PIT NDPS Act with a view to prevent him from engaging in the possession, concealment and transportation of narcotic drugs. It was further staled that the statements of Labh Singh, Arshad, Arvind Singh, Chamanlal and Nagesh Kumar were recorded and that the statement of detenue Harjeet Singh alias Papa was also recorded under Section 67 of the NDPS Act, 1985 and it was established that the detenue knew Arshad of Lahore in Pakistan who was engaged in smuggling of narcotics into India and he also knew one Sikh officer of BSF known as J AD who had helped Arshad in crossing the border, it was also stated that the detenue had helped Arshad in disposing of 51 kgs of heroine brought from Pathankot side to Amritsar and this heroin was transported in the truck of detenue No. PAT 9767 to Khandala near Bombay. It was further said that the detenue had also smuggled out acetic anhydride to Pakistan four times during last one and a half years. It was-then stated that the 52 packets of heroin recovered from truck bearing registration No. WMQ 3348 at Bikaner on 23rd May, 96 evening when Labh Singh was with the truck were given by the detenue to be taken to Bombay. In nutshell, it was stated that the detenue was engaged in possession, sale, purchase, concealment, transportation and import into India the narcotics which amounted to illicit traffic as defined in Section 2(e) of the PIT NDPS Act and to prevent him from continuing to indulge in illicit traffic of narcotic drugs and substances, the order was passed.
6. The contention of Mr. Kalla was that the detenue was already in custody because he was arrayed as an accused in the case under the NDPS Act and therefore, the detention order was unnecessasry. According to him, there was no compelling circumstance to make an order of detention when the detenue was already under detention. He relied on the cases of Dharmendra Suganchand v. Union of India AIR 1990 SC 1196 : 1990 Cri LJ 1232, N. Meera Rani v. Government of Tamil Nadu 1989 (4) SCC4I8 : 1989 Cri LJ 2190, Smt. Shalini Soni v. Union of India AIR 1981 SC 431 : 1980 Cri LJ 1487. Ajay Dixit v. Stale of U.P. AIR 1985 SC 18 : 1985 Cri LJ 487 and Smt. Shashi Agrawal v. State of U.P. AIR 1988 SC 596 : 1988 Cri LJ 839.
7. Mr. Joshi, on the other hand, tried to support the detention order. According to him, there is absolutely no bar to the grant of bail in the NDPS Act and therefore, the detaining authority was justified in passing the order keeping in view that after bail was granted to the detenue, he might indulge in the activity ‘of possession, concealment and transportation of narcotic drugs.
8. We have given the matter our anxious consideration.
9. The Hon’ble Apex Court in the case of Dharmendra Suganchand (supra) has considered all the previous rulings and has observed that where the detenue is already in custody, there should be compelling reasons for passing the order for the detention of the detenue. That was a case under the PIT NDPS Act. It was noticed that the detenue was remanded to judicial custody and the bail application of the detenu in the case under the NDPS Act was rejected. On these facts it was observed that it could not be said that there was a reasonable prospect of the detenue not being further remanded to custody and his being released from custody. The detention order was quashed by the Hon’ble Supreme Court.
10. A perusal of the detention order in the instant case shows that the detaining authority was aware of the fact that the detenue was in custody on the date of passing of the order of detention. In the order it has been stated that no bail application had been filed by the detenue till the date of the detention order. It is relevant to notice Section 37 of the NDPS Act which read as follows :
37. Offences to be cognizable and non-bailable – 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 a term of imprisonment of five years or more under this Act 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 offences 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 limitation under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.
11. It is evident that bail application of an accused of the offence under the NDPS Act cannot be accepted when opposed by the Public Prosecutor and further that accused in such a case can be released on bail only when the Court records that there are reasonable grounds to believe that the accused has not committed any offence and he was not likely to, commit such offence in future. Thus the provisions of bail under the NDPS Act are very stringent.
12. In the instant case, the detenue had not moved bail application till the order of detention was passed. Keeping in view, the evidence collected against the detenue, it is the remotest possibility that he may be granted bail. The grounds of detention disclose that the detenue is engaged in activities which arc offences punishable with imprisonment which may extend to 20 years and fine of Rs. 2 lacs, subject to minimum of 10 years and Rs. 1 lac fine under (he provisions of NDPS Act, 1985. It cannot, therefore, be said that there are chances of the detenue getting bail in that case. In these circumstances, it cannot be accepted that there were compelling reasons for passing the order for detention of the detenue. When the detenue is already in custody, it cannot rationally be postulated that if he is not detained under the PIT NDPS Act, he would engage himself in illicit traffic of narcotic drugs. The detenue is facing trial for the offence under the NDPS Act. Therefore, it cannot be said that the custody of the detenue is for a short duration. The ratio of the various cases cited before us is that where the detenue is already in custody, the detention order can be passed only when there are compelling reasons for doing so. If there are no chances of the release of the detenue on bail in a case in which he is in custody, the detention order cannot be allowed to stand. Following the ratio of the case of Dharmendra Suganchand (supra), we arc of the view that the detention order is liable to be quashed.
13. Consequently, we quash the order of detention dated 19th August, 1996 and confirmation order dated 20th November, 1996. It is clarified that in case the detenue is released from custody in the criminal case filed against him under the NDPS Act, the question of his preventive detention under the PIT NDPS Acton the material cited in the detention order may be reconsidered by the appropriate authority in accordance with law and this decision shall not be construed as an impediment for that purpose.