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IN THE HIGH COURT OF ALLAHABAD
ARVIND SINGH SANGWAN, RAM MANOHAR NARAYAN MISHRA, JJ.
Faizan Khan Alias Raja Babu – Appellant
Versus
Addhikshak Janpadkendriya Karagar Bareilly And 3 Others – Respondents
Habeas Corpus Writ Petition No. 271 of 2024
Decided on : 14-05-2024
HABEAS CORPUS - PREVENTIVE DETENTION UNDER PIT NDPS ACT - PIT NDPS Act, Section 3(1), Cr.P.C. Sections 82/83, Article 22(5) - The court discussed the provisions of the PIT NDPS Act, particularly Section 3(1), which allows for preventive detention based on the opinion of the competent authority. The court emphasized the necessity of providing the detained individual with the grounds of detention and the material relied upon for such detention, as mandated by Article 22(5) of the Constitution. The court found that the petitioner was not given a fair opportunity to contest the detention order, leading to the conclusion that the detention was illegal and unjustified.
Fact of the Case:
The petitioner, Faizan Khan, was arrested under the NDPS Act and granted bail after being acquitted in one case. He was later implicated in another FIR without being named or arrested at the scene. The petitioner challenged a detention order under the PIT NDPS Act, claiming he was not provided the necessary materials to contest the order.
Finding of the Court:
The court found merit in the petition, noting that the petitioner had been acquitted in the first FIR and was not properly informed of the grounds for his detention. The court highlighted the lack of evidence against the petitioner in the second FIR and the failure to provide him with the material relied upon for the detention order.
Issues: Whether the detention order under the PIT NDPS Act was justified given the petitioner's acquittal in the first FIR and lack of evidence in the second FIR. Whether the petitioner was denied his right to make an effective representation against the detention order.
Ratio Decidendi: The court held that the failure to provide the petitioner with the grounds of detention and the material relied upon constituted a violation of his rights under Article 22(5) of the Constitution. The court emphasized that the detention order was based on insufficient grounds and was therefore illegal.
Final Decision: The court allowed the writ petition, set aside the impugned orders, and ordered the immediate release of the petitioner unless he was required in another case.
JUDGMENT :
Hon'ble Arvind Singh Sangwan, J.
1. Heard Shri Daya Shankar Mishra, learned Senior Counsel assisted by Shri Chandrakesh Mishra, learned counsel for the petitioner, Sri Alok Ranjan Mishra, learned counsel for the Union of India, learned A.G.A. for the State and perused the record.
2. In this petition is to issue a writ in the nature of Habeas Corpus for quashing the order dated 22.07.2022 under Provision 3 (1) of PIT NDPS Act and to release the petitioner from judicial custody.
3. Brief facts of this case are that the petitioner Faizan Khan @ Raja Babu was arrested in F.I.R. No. 65 of 2021 registered under Section 8/ 21 of NDPS Act, Police Station-Qila, District-Bareilly on 01.03.2021. The petitioner was granted bail on 04.06.2021 and was released from custody.
4. As per the first additional affidavit filed on behalf of the petitioner, vide judgement dated 09.06.2023 passed by the Special Judge, NDPS Act/ Additional Sessions, Court No.8, Bareilly after a full length trial, the petitioner was acquitted of the charge.
5. It is further stated that later on the petitioner was nominated as an accused in F.I.R. No. 1091 of 2021 registered on 27.11.2021, on the disclosure of a co-accused. The petitioner was neither named in the F.I.R. nor arrested at the spot and, therefore, no recovery of either Narcotic Drugs and Psychotropic Substances was affected from him. It is stated that the petitioner later on surrendered before the Court on 18.01.2022 and, thereafter, he was granted bail on 04.03.2022. It is further stated that the charge sheet has been submitted and case is pending trial and no adverse order has been passed against the petitioner.
6. It is further stated that the impugned order dated 22.07.2022 is passed invoking the provisions of PIT NDPS Act is based upon the aforesaid two FIRs Nos. 65 of 2021 and 1091 of 2021. It is submitted that copy of the order was never served upon the petitioner, who was released from the custody on 4.3.2022 in the second F.I.R., till 12.01.2024. It is submitted that intervening period against the petitioner neither any proceedings under Sections 82/ 83 of the Cr.P.C. was pending nor any such proceeding is pending before the trial court where the second F.I.R. is pending. It is also submitted that the petitioner, who was on bail in the first F.I.R. No. 65 of 2021, where he has already been acquitted vide judgment dated 09.06.2023, was regularly appearing and his statement under Section 313 Cr.P.C. was recorded, well within the knowledge of the prosecuting agency as per dates described in paragraph no.11 of the petition. The learned counsel for the petitioner submitted that it has been wrongly noticed in the impugned order that the petitioner was absconding though he was facing the trial and appearing before the court in the first F.I.R. It is submitted that while passing impugned order on 06.03.2024. It is stated that the order dated 22.07.2022 is served upon the petitioner on 12.01.2024 when he was arrested and lodged in the District Jail Bareilly on 12.01.2024 and, therefore, he will remain in preventive detention for one year w.e.f. 12.01.2024 till 11.01.2025. Learned counsel for the petitioner has assailed that both these orders by way of filing this writ petition.
7. Learned counsel for the petitioner submits that one of the ground taken is that the opinion formed by the counseling authority for sending the proposal to the screening committee; the report prepared by the screening committee and the material relied upon both the counseling authority and screening committee were never supplied to the petitioner and, therefore, he was denied his right for making an effective representation against the impugned orders.
8. Learned counsel for the petitioner submits that after a gap of two months vide order dated 12.03.2024, the representation filed by the petitioner stands rejected by the Deputy Secretary to Government of India, Department of Revenue PIT NDPS Division by passing a totally non spea
AI
The judgment establishes that a detention order under the PIT NDPS Act must be based on sufficient grounds and that the detained individual has the right to be informed of the material relied upon fo....
Detention under the PIT NDPS Act is invalid if based on acquittal in a prior FIR and lack of grounds for the subsequent detention, violating the right to effective representation.
Preventive detention requires cogent evidence and compliance with due process, including proper communication of grounds in a comprehensible language for the detenu.
Non furnishing of documents is not fatal and also to project that likelihood of release on bail may not be a consideration.
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