JUDGMENT - PARKAR S.S., J.:---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 P.I.T.N.D.P.S. 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 N.D.P.S. 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 form 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 N.D.P.S. 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 N.D.P.S. 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 N.D.P.S. 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 t

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