Preventive detention orders must consider the detenu's current custody and likelihood of bail; failure to do so invalidates the detention.

JUDGMENT

AMIT SHARMA, J.

1. The present petition under Article 226 of the Constitution of India seeks quashing of the preventive detention orders dated 31st August, 2023 and 29th November, 2023 bearing F. No. U-11011/29/2023-PITNDPS and bearing F. No. U-11012/19/2023-PITNDPS, issued by the Joint Secretary and the Deputy Secretary to the Government of India, Ministry of Finance, Department of Revenue (PITNDPS Unit) i.e., Respondent nos. 1 and 2 (the Detaining Authority) respectively, under the provisions of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as ‘PITNDPS Act’), thereby ordering the detention of the Petitioner for a period of one year from the date of his detention, i.e., 7th September, 2023.

2. The relevant facts for the purpose of adjudication of the present petition are as under:

i. The present Petitioner is alleged to have been involved in the following cases:

a.) FIR no. 631/2003 under Sections: 21/61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’), registered at PS: Kotwali, Delhi for the effected recovery of 08 grams of brown sugar. The Petitioner was acquitted vide order dated 3rd November, 2006, passed by the Learned Special Judge (NDPS), Tis Hazari Courts, Delhi.

b.) FIR no. 80/2009 under Section 21 of the NDPS Act, registered at PS: Narcotics Cell, Crime Branch (Delhi) for the effected recovery of 100 grams of brown sugar. The Petitioner was convicted for a period of 3 months and 15 days vide order dated 06th January, 2011, passed by the Learned Special Judge (NDPS), Karkardooma Courts, Delhi.

c.) FIR no. 200/2012 under Section 21 of the NDPS Act, registered at PS: Narcotics Cell, Crime Branch (Delhi) for the effected recovery of 275 grams of heroin. The Petitioner was convicted under Section 21(c) of the NDPS Act and sentenced to rigorous imprisonment for 15 years alongwith a fine of Rs. 1,50,000/- vide order dated 12th February, 2016 passed by the Learned Special Judge (NDPS), Tis Hazari Courts, Delhi. Vide order dated 31st July, 2020 in CRL. M (Bail) 7635/2020, the sentence of the Petitioner was suspended till the pendency of the appeal bearing no. CRL. A. 398/2016, pending before this Court.

d.) FIR no. 253/2021 under Sections 21/25/29 of the NDPS Act, registered at PS Narela for the effected recovery of 98 grams and 300 grams of heroin initially from one Mr. Salman and Ms. Heena Khattoon @ Heena Khatun, who on her disclosure statement alleged that she had procured 450 grams of heroin from the Petitioner about 3-4 days before her arrest on 16th June, 2021. Based on such disclosure statement, the Petitioner was arrested on 18th June, 2021 and a total of 260 grams of heroin was seized from the house of the Petitioner. The Petitioner is currently lodged in judicial custody in the aforementioned case FIR. The chargesheet and supplementary chargesheet stand filed in the aforementioned case.

ii. On the basis of the alleged involvement of the Petitioner in the aforesaid cases, Deputy Commissioner of Police, District-Outer North, Delhi, i.e., the Sponsoring Authority submitted a proposal dated 31st July, 2023 to Respondent nos. 1 and 2, which was forwarded to the Screening Committee on 8th August, 2023. The said proposal was considered by the Screening Committee on 28th August, 2023 and the same was held to be fit for preventive detention under the PITNDPS Act.

iii. Thereafter, the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue (PITNDPS Unit), i.e., the Detaining Authority (Respondent no. 1) on 31st August, 2023 issued the detention order bearing F. No. U-11011/29/2023-PITNDPS under Section 3(1) of the PITNDPS Act, which along with the ‘grounds of detention’ and Relied Upon Documents (‘RUDs’) were served upon the Petitioner in jail on 7th September, 2023 following the mandate of Section 3(3) of the PITNDPS Act.

iv. Thereafter, on 5th October, 2023, the Petitione