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.

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 judgement 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 2 of 8 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 speaking order and without assig