The main legal point established in the judgment is the requirement for the detaining authority to apply its mind and consider compelling reasons supported by cogent material when issuing a detention order, especially in cases involving the detention of a person already in custody.

( 1 ) THROUGH this writ petition preferred under Article 226 of the constitution of India petitioner-detenu Desh raj Verma has impugned the order dated 30-5-2003, issued by Mr. C. P. Singh, deputy Secretary, Home and Confidential department, Govt. of U. P. , on behalf of Govt. 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, along with the grounds of detention, which are also dated 30-5-2003, was served on the petitioner-detenu on 7-6-2003 and their true copies have been annexed as Annexures 6 and 5 respectively to this writ petition.

( 2 ) THE prejudicial activities of the petitioner-detenu warranting the issuance of the impugned detention order against him are contained in the grounds of detention (Annexure-5 ). A perusal of the grounds of detention shows as under : On 15-1-2003, sometimes between 9. 00 a. M. and 10. 00 A. M. , when a police party of Police Station Zaidpur reached Gulriha tiraha it found a person coming from the side of Zaidpur. On seeing the police party the said person starting walking fast. The police party asked him to stop, but instead of stopping he tried to run away. At about 9. 55 A. M. the police party apprehended him and seized from his person 650 grams of morphine under a recovery memo. It sealed the morphine and took the said person in custody. On interrogation, he disclosed his name as Desh Raj Verma (the petitioner ). A perusal of the grounds of detention further shows that on the basis of the aforesaid prejudicial act the detaining authority concluded that in order to prevent the detenu from committing such prejudicial acts in future it was imperative to detain him vide the impugned order. A perusal of the grounds of detention also shows that the petitioner therein has been apprised of his right to make a representation to various authorities.

( 3 ) WE have heard learned counsel for the parties.

( 4 ) ALTHOUGH in this writ petition learned counsel for the petitioner has made a number of pleadings and taken a number of grounds but he has pressed before us the pleadings contained in paragraphs 9, 11, 12 and 13 of the petition and grounds (E), (F), (G) and (H) of paragraph 29 thereof. The substance of averments contained in the aforesaid paragraphs and grounds is that the detaining authority was prompted to pass the impugned detention order against the petitioner because it proceeded on the erroneous premise that the bail application of the petitioner-detenu dated 27-3-2003, Which was filed before the Special judge, NDPS Act, Barabanki, was still pending and there was likelihood of his being released on bail. It has been averred therein that in fact the bail application of the petitioner-detenu dated 27-3-2003 had been rejected by the learned Special Judge, NDPS act, Barabanki on 25-4-2003 and no bail application was preferred by the petitioner detenu thereafter and none was pending on the date on which the impugned detention order was passed. The short and long of the pleadings contained in the said paragraphs and grounds is that since the bail application of the petitioner-detenu had been rejected on 25-4-2003 the impugned detention order was vitiated on a dual count, namely: (a) by the vice of non-application of mind on the part of the detaining authority; and (b) there was no cogent material for the detaining authority to conclude that the petitioner-detenu was likely to be released from custody in near future.

( 5 ) THE averments contained in paragraphs 9, 11, 12 and 13 of the petition have been replied to in paragraphs 9 and 11 of the return of Mr. R. C. Uttam, Under Secretary, Home and Confidential Department, u. P. Lucknow. The aforesaid paragraphs read thus :

"9. That in reply to the contents of para 9 it is submitted that the detention order was passed by the State Government on the basis of the prejudicial act committed by the petitioner/detenu as 650 grams her