Point of Law : Application for bail - An application for bail is required to be filed and considered by the appropriate Court in terms of Section 439 of the Code of Criminal Procedure but in cases involving the provisions of the NDPS Act, the detaining authority was required to take into consideration the restrictions imposed on the power of the court to grant bail having regard to the provisions of Section 37

ORDER :

1. The detention order vide SB(1) No. 46/PD-3/HYD/2020 dated 12.02.2020 passed against Habeeb Ali Al Attas, S/o. Habeeb Salam Al Attas, by the 2nd respondent, Commissioner of Police, Hyderabad City, in exercise of powers conferred under sub-section (2) of Section 3 of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertilizer Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986 (Amendment Act No. 13 of 2018) (for short ‘the Act’) and as approved by the State vide G.O.Rt. No. 811, General Administration (SPL) Law and Order Department dated 22.04.2020, are challenged in this Writ of Habeas Corpus as being illegal and arbitrary.

2. Heard Mr. A. Prabhakar Rao, learned counsel for the petitioner and Mr. T. Srikanth Reddy, learned Government Pleader for the respondents.

3. Learned counsel for the petitioner submitted that the impugned detention order is passed arbitrarily based on a solitary offence in Crime No. 181 of 2019, Shalibanda Police Station, Hyderabad. The detention order is passed mechanically. The bail application of the detenu was dismissed and there is no bail petition pending. Thus, detention order suffers from non-application of mind and unsustainable.

4. Per contra, the learned Government Pleader submitted that the detenu has indulged in unlawful activities and committed an offence of peddling of Ganja, a narcotic drug, endangering the lives of youth, causing irreparable damage to their body organs including central nervous system, thereby, crippling the health of those, who are addicted to drugs. The activities of the detenu spread danger to public health and are detrimental to the public order in the limits of Hyderabad Commissionerate. The detention order was passed in larger public interest by following procedure duly established under law. Based on the confessional statement of the detenu, the Police seized 350 kgs. in 10 bags, each bag weighing about 35 kgs. procured from Chitrakonda village of Vishakhapatnam district and were transporting the same to Hingoli of Maharashtra state to sell the same to one Manoj Agnihothri and later, the detenu was remanded to judicial custody. Therefore, the detenu squarely answers the description of the ‘Drug-Offender’ as defined under Section 2(f) of the Act.

5. In the impugned detention order, the detaining authority has referred to a solitary criminal case, which forms the basis for passing the detention order i.e. Crime No. 181 of 2019 under Section 8(c) r/w. 20(b)(ii)(c) of NDPS Act, 1985 of Shah Ali Banda Police Station of Hyderabad Commissionerate. The detaining authority points that there will be possibility of detenu moving bail application and granting bail/conditional bail by Court since the associate of detenu Syed Shabuddin has moved second bail petition. Such subjective satisfaction is perverse. Mere pendency of bail petition of co-accused cannot be a circumstance to reach a conclusion that there is likelihood of detenu moving bail application and being granted bail. In order to come to a conclusion that there is a possibility of detenu moving bail application and being granted bail, the detaining authority should be satisfied that co-accused of the detenu, who is on the same footing, is granted bail. There is a difference between a situation where co-accused is granted a bail and where bail petition of co-accused is pending. If the analogy of grant of bail to the co-accused is extended to a situation where bail petition of co-accused is pending, then it would be too farfetched and an extreme proposition of law, and incomprehensible. There may be chances of bail petition of co-accused being dismissed. Even i