@JUDGMENTTAG-ORDER
P.K. Jain, J.@mdashThis petition has been filed under Articles 226 and 227 of the Constitution of India for quashing the detention order No. 5-8-
95-2HIII (PII NDPS)/802 dated 15-5-1995 (Annexure P. 1), passed u/s 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988 (hereinafter called ''the Act'').
2. The facts, as can be gathered from the grounds of detention (Annexure P. 2), are that on 30-10-1994, a police party headed by Shri
Narinderpal Singh, Superintendent of Police, Moga, was on patrolling duty. Near the bridge of Sernnala in the revenue limits of village Chur-Chak,
an Ambassador car bearing No. PB-29-7264 was sighted coming from the opposite direction. On asignal, the car was stopped. One Bhanwar
Singh alias Bhawani Parshad Singh was on the steering wheel. The petitioner was sitting by the side of the said driver in his cabin. The
Superintendent of Police, after obtaining no objection from the petitioner and his associate, searched the car. As a result thereof, two packets
containing opium wrapped in glazed paper were recovered from the backside of the front seat of the said car. Each packet weighed 10 Kgs. 50
Gms. of the contents were taken out from each of the two packets by way of sample. The samples and the remaining opium were converted into
separate sealed parcels and the same were taken into possession by preparing a seizure memo. As no permit or licence could be produced, FIR
No. 73 dated 30-10-1994, was registered against the pe-titionerand his associate, at Police Station, Mehna, for an offence u/s 18 of the Narcotic
Drugs and Psychotropic Substances Act, 1988 (for short called ''the ND and PS Act'').
3. The State Government, after having been satisfied that the petitioner has been engaging in possession, sale and importing inter-state narcotic
drugs, passed the impugned order of detention with a view to preventing the petitioner from indulging in the said prejudicial activity in future.
4. The detention order and the grounds of detention have been assailed on the grounds that the petitioner was arrested in the aforesaid case and his
bail application was rejected by the Sessions Judge on 18-4-1995 and thereafter by the Punjab and Haryana High Court, that after the rejection of
the bail application, there was no chance of the petitioner being released on bail during the trial but in spite of this fact, respondent No. 1 passed
the impugned detention order dated 15-5-1995 (Annexure P. 1), that there is a delay of more than 6� months in passing the impugned detention
order from the date of the alleged prejudicial activities, that the detention order was served upon the petitioner on 25-5-1995 and there is no
explanation for delay in serving when the petitioner was in custody since 19-10-1995, that there was no material with the detaining authority to
believe that the petitioner would'' be released on bail and the detention order has been passed only to supplant the criminal proceedings. It has
been further stated that the petitioner made representation to the Slate Government, Advisory Board and the Central Government on 8-8-1995,
which has not been decided till today, nor there is any explanation for the delay in deciding and communicating the result thereof to the petitioner. It
has been further stated that the petitioner has not been supplied the material documents nor he was produced before the Advisory Board within the
stipulated period.
5. In reply the respondents have stated that the detention order has been passed by the Competent Authority after having been satisfied regarding
the prejudicial activities on the part of the petitioner and due to the compelling reasons so as to prevent the petitioner in indulging in the same
activities after he was released. It has been further stated that there is no delay either in the passing of the detention order or in serving the same
upon the petitioner as the time had been taken in processing the case by the various branches of the department concerned. It has been further
stated that the petitioner was produced before the Advisory Board within the stipulated period and his representation was examined and rejected
on 8-9-1995 by the competent authority. It is, thus, stated that the detention order was passed after taking into consideration all the facts and
circumstances along with the relevant documents and after proper application of the mind.
6. I have heard the learned counsel for the parties and have perused the record.
7. Mrs. H.K. Dhillon, Advocate, learned counsel for the petitioner, has assailed the detention order (Annexure P. 1) and the grounds of detention
(Annexure P. 2) mainly on the ground that the detention order was passed when the petitioner was already in judicial custody; the detaining
authority had no material before it to come to the conclusion that the petitioner, if released on bail, would again indulge in prejudicial activities; non-
showing of compelling reasons has vitiated the detention order.
8. Counsel for the petitioner urged that the detention under the Act is preventive arid not punitive and is meant to check prejudicial or
objectionable activities of the detenu. The purpose of detention is to prevent the petitioner from indulging in illicit traffic in narcotic drugs, sale and
importing narcotic drugs. She contended that this could be done only if the petitioner is released from his earlier detention but when the petitioner
was already in custody and his bail application had been rejected, there was no ground to order his detention.
9. In answer to these submissions, Shri Ramanjit Singh, Assistant A. G., Punjab, has contended that the detaining authority has passed the
detention order on the basis of the material on record after due application of mind. He has submitted that the detaining authority was aware of the
fact that the petitioner was in judicial custody but it apprehended that the petitioner was likely to indulge in prejudicial activities in case he was
released on bail and that, therefore the detaining authority deemed it proper to pass the detention order.
10. After hearing the learned counsel for the parties, I am of the view that the impugned detention order (Annexure P. 1) along with the grounds of
detention (Annexure P. 2) is liable to be quashed on the aforesaid grounds.
11. In Dharmendra Suganchand Chelawat and another Vs. Union of India and others, , a case of preventive detention under the Prevention of
Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, it was held by the apex Court 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 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.
12. The facts of the present case, if examined in the light of the aforesaid principle, it can be said that the first condition is satisfied inasmuch as the
grounds of detention show that the detaining authority was aware of the fact that the petitioner was in custody on the date of passing of the
detention order. The petitioner was arrested on 30-10-1994 and was produced before the Court on 31-10-1994. His bail application was
rejected by the Sessions Judge, Faridkot, on 18-4-1995. The impugned detention order was passed on 15-5-1995 while the petitioner was in
custody. It may be stated that the petitioner had applied for bail to this Court which, was also rejected before the passing of the impugned order.
13. The question which remains to be decided is whether there were compelling reasons for the detention of the petitioner although he was in
custody. In the grounds of detention (Annexure P. 2), the detaining authority has mentioned that there is likelihood that the petitioner may get
himself released on bail in the near future but no material has been disclosed therein which may lead to the conclusion that the. petitioner was likely
to be released on bail. The petitioner''s application for bail had been rejected just one month before the passing of the impugned detention order.
The grounds of detention disclose that the petitioner previously too was engaged in prejudicial activities which is an offence punishable under the
NDPS Act, and as such, in view of the provisions of Section 37 thereof, there was no possibility of his being released on bail. However, no
material worth the name has been placed on record in support of the statement made in the grounds of detention that the petitioner might have got
himself released on bail and in that event he could have again indulged in the same prejudicial, activities. Rather, it has come on record that the High
Court too had dismissed the bail application of the petitioner. In this view of the matter, the order of detention cannot be sustained.
14. For the reasons recorded above, this petition is allowed and the order of detention (Annexure P. 1) is hereby set aside. It is, however, clarified
that in case the petitioner is released from custody in criminal proceedings in FIR No. 73, dated 30-10-1994, registered at Police Station Mehna,
for the offence u/s 18 of the ND and PS Act, 1985, the question of his preventive detention under the Act may be re-considered by the
appropriate authority in accordance with law, and this decision would not construe as an impediment for that purpose.
