IMPORTANT POINT
When a detenue has been arrested already and in custody under NDPS Act, mere likelihood of his moving application cannot be ground to pass detention order under Section 3(1) of PITNDPS Act, for likelihood of moving an application for bail cannot be equated with likelihood to be released .

ORDER

In these appeals the validity of the order of detention passed by the Joint Secretary to the Government of India stands challenged.

2. 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 Substances Act, 1985 (for short the Act ). The appellants prayed for being released on bail, but the Addl. District Judge, Neemuch, rejected the application. Subsequently however they were detained under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short the PITNDPS Act ) by order dated 5.6.1977. The record depicts that the grounds of detention were communicated to the appellants within the stipulated time and subsequently by order dated 17.8.1997 their detention has been confirmed. 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 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 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.

3. 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 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 Agustin v. Govt. of the National Capital Territory of Delhi and Ors.1. This Court while dealing with the matter and relying upon the decision of this Court in Kamarunnissa v. Union of India2 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:

"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 is set at liberty."

4. In Agustin 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, Dhanbad3 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 Court held that there must be cogent materials before the officer passing the detention order that the detenu 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 ought to be noticed and the same reads as below :

"Even though prosecut