The main legal point established is that for detaining a person already in custody, there must be compelling reasons justifying the detention, and the detaining authority must demonstrate awareness of the person's custody status and the likelihood of their release, as per the decision in Dharmendra Suganchand Chelawat v. Union of India, 1990.

( 1 ) THROUGH this writ petition preferred under Article 226 of the Constitution of India, the petitioner-detenu Mohd. Tafseer has impugned the order 10th July, 2002 passed by Mr. J. P. Sharma, Deputy Secretary, Home and Confidential, Government of U. P. , detaining him under section 3 (1) of The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances act, 1988. The detention order, alongwith the grounds of detention, which are also dated 10,7. 2002, was served on the petitioner-detenu on 25. 7. 2002 and their true copies have been collectively annexed as Annexure-1 to the petition.

( 2 ) THE prejudicial activities of the petitioner-detenu impelling the detaining authority to issue the impugned detention order against him are contained in the grounds of detention. In short their perusal would show as under: on 28. 7. 2001 on prior information received through an informer by Central Narcotics Bureau (CNB) a party of the said Bureau at 3. 00 p. m. reached the culvert on Nanmau canal on barabanki-Harakh road. At about 4. 00 p. m. , they saw a Vikram Tempo coming. The same was stopped by the CNB party. On the pointing out of the informer two persons, namely, Mohd. Tafseer (petitioner-detenu) and Rakesh Kumar Verma were stopped. Thereafter the CNB party disclosed to them that it wanted to search them and proceeded to search them. From both petitioner-detenu Mohd. Tafseer and Rakesh Kumar Verma heroin was recovered; 800 grams from the former and 300 grams from the latter. Thereafter the petitioner-detenu and Rakesh kumar Verma were arrested and a case under Section 8/21 NDPS Act was registered against them. On 10. 7-2002 the impugned detention order was issued against the petitioner-detenu.

( 3 ) WE have heard learned counsel for the parties. In our judgment, in view of the averments contained in paragraph-11 of the petition and ground F of paragraph-20 thereof, this writ petition deserves to succeed. The substance of pleadings contained therein is that pursuant to the petitioner-detenu being arrested in the case under Section 8/21, NDPS Act and prior to his being detained vide the impugned order he did not prefer any application for bail in any Court and the detaining authority erred in clamping the impugned detention order against him on the fallacious premise that he had preferred an application for bail which had been rejected. Mr. A. P. Mishra, learned counsel for the petitioner-detenu, strenuously urged that since there was no cogent material before the detaining authority that the detenu was likely to be released from custody in near future the impugned detention order is bad in law, in view of the ratio laid down by the Apex Court in paragraph-19 of the decision rendered by it in Dharmendra suganchand Chelawat v. Union of India, 1990 (28) ECC 12 (SC) : AIR 1990 SC 1196.

( 4 ) THE averments contained in paragraph 11 of the petition and ground F of paragraph-20 thereof have been replied to in paragraphs 7 and 9 of the return of Mr. C. P. Singh, Deputy Secretary, home and confidential, Govt. of U. P. , Lucknow. In paragraph-7 it has been averred that the bail application preferred by the petitioner-detenu had been rejected by the Special Judge, NDPS Act, barabanki. In paragraph-9 it has been stated that the petitioner-detenu had not preferred any application for bail [but he] had preferred an application before the Special Judge. NDPS Act, barabanki, which was rejected by him on 19. 9. 2002, wherein the prayer was that he should be dealt under the Juvenile Justice Act. Mr. S. K. Singh, learned counsel for opposite parties Nos. 2 and 3 frankly admitted that the petitioner-detenu did not prefer any application for bail.

( 5 ) WE have perused the averments contained in the rival returns. In our view, the impugned detention order warrants to be quashed on account of two infirmities, namely - (a) There has been a total non-application of mind on the part of the detaining authority inasmuch as in