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Habeeb Tayyab v/s The State of Telangana, Rep. by its Principal Secretary to Government, General Administration (Poll), Secretariat, Hyderabad & Others

    Writ Petition No. 7072 of 2020

    Decided On, 06 August 2020

    At, High Court of for the State of Telangana


    For the Petitioner: M/s. A.Prabhakar Rao, Advocate. For the Respondents: T. Srikanth Reddy GP for Home.

Judgment Text

B. Vijaysen Reddy, J.

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 & 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 Vishakapatnam 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 if bail is granted to co-accused, it may be because charges against him are not so serious as compared to the detenu and such co-accused may stand on a different footing. Thus, assuming that there is a possibility of detenu moving bail application and being granted bail for the reason bail application of the co-accused is pending is unwarranted, arbitrary, and perverse and suffers from non application of mind.

6. It would be beneficial to refer the judgment of the Hon’ble Apex Court rendered in HUIDROM KONUNGJAO SIGH Vs. STATE OF MANIPUR AND OTHERS (2012) 7 Supreme Court Cases 181), wherein various judgments with regard to “possibility of detenu being released on bail” have been analyzed succinctly. In the said judgment, the Hon’ble Apex Court, while relying on the judgment in REKHA Vs. TAMIL NADU [(2011) 5 SCC 244] made the following observations:

12. In Rekha v. State of Tamil Nadu through Secretary to Govt. & Anr., (2011) 5 SCC 244, this Court while dealing with the issue held :

“7. A perusal of the above statement in Para 4 of the grounds of detention shows that no details have been given about the alleged similar cases in which bail was allegedly granted by the court concerned. Neither the date of the alleged bail orders has been mentioned therein, nor the bail application number, nor whether the bail orders were passed in respect of the co-accused on the same case, nor whether the bail orders were passed in respect of other co-accused in cases on the same footing as the case of the accused……

10. In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the bail application number, whether the bail order was passed in respect of the co-accused in the same case, and whether the case of the coaccused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail……. A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored……

27. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground.”

(Emphasis added).

15….Thus, as the detenu in the instance case has not moved the bail application and no other co-accused, if any had been enlarged on bail, resorting to the provisions of the Act was not permissible.

7. Further, grant of bail for the offences under NDPS Act is governed under the provisions of NDPS Act. Under Section 37 of the NDPS Act, strict mechanism is provided and unless the concerned Court is satisfied that the accused is not involved in commission of offence, bail, ordinarily, would not be granted. As found from the impugned order, the I Additional Metropolitan Sessions Judge, Hyderabad dismissed the bail petition moved by the detenu vide Crl.M.P.No.118 of 2020 on 18.01.2020. There is no bail application of detenu pending on the date of detention order. In such circumstances, when ordinary law is capable of dealing with the activities of the detenu, having resort to provisions of preventive detention law is totally unwarranted. The detaining authority, without adverting to such relevant facts, passed the impugned detention order by vaguely holding that there is every possibility of his moving bail petition again and upon granting of bail/conditional bail to him and his release from jail, there is imminent possibility of the detenu indulging in similar offences.

8. As compared to Section 439 Cr.P.C. whereunder there is no strict mechanism as to the specific grounds on which the bail has to be granted, under Section 37 of the NDPS Act, in ordinary circumstances, bail would not be granted by the Court, as the Court has to record a finding that the accused is not guilty of the offence and he is not likely to commit any offence when he is on bail. The right to oppose a bail is given to the Public Prosecutor and it is needless to state that the Public Prosecutor would place all relevant material/CD file before the concerned Court and also apprise the Court of relevant circumstances under which the detenu was arrested, the gravity of the offence, the quantity of contraband/drug seized etc. All these facts weigh with the concerned Court while granting bail. It is obvious from the record that the concerned Court dismissed the bail application by considering the gravity of offence. In SAYED ABUL ALA v. UNION OF INDIA (2007) 15 SCC 208)the Supreme Court held as under:

“19. 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 thereof.

20. Section 37 reads as under:

“37. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974) –

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for [offences under Section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless –

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.”

The statute, thus, puts limitation on the jurisdiction of the court in the matter of grant of bail. They cannot be ignored by any Court of Law. Several decisions of this Court and of High Court operate in the field.

21. Proper application of mind on the part of the detaining authority must, therefore, be borne out from the order of detention. In cases where the detenu is in custody, the detaining authority not only should be aware of the said fact but there should be some material on record to justify that he may be released on bail having regard to the restriction imposed on the power of the Court as it may not arrive at the conclusion that there existed reasonable grounds for believing that he was not guilty of such offence and that the detenu could not indulge in similar activity, if set at liberty.

22. The detaining authority furthermore is required to borne in mind that there exists a distinction between the “likelihood of his moving an application for bail” and “likelihood to be released on bail”. While arriving at his subjective satisfaction that there is likelihood of the detenu being released on bail, recording of the satisfaction on the part of the detaining authority that merely because an application for grant of bail had been filed, would not be enough. It w

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ould also not be sufficient compliance of the legal obligation that the detaining authority had informed himself that the detenu has retracted from his earlier confession.” 9. Thus, by summarizing the above observations, this Court holds that the impugned detention order is arbitrary and suffers from non application of mind for the following reasons: a) For non-consideration of restrictions for grant of bail under Section 37 of the NDPS Act, b) there is no bail petition of detenu pending and c) mere bail petition of co-accused pending cannot be a circumstance to arrive at a conclusion that there is a possibility of detenu moving bail petition and being granted bail. In the result, the Writ Petition is allowed. The impugned detention order dated 12.02.2020 passed by the respondent No.2, and the consequential confirmation order vide G.O.Rt. No.811, dated 22.04.2020 passed by the respondent No.1 are, hereby, set aside. The respondents are directed to set the detenu, namely Habeeb Ali Al Attas S/o. Habeeb Salam Al Attas, at liberty forthwith, in case he is no longer detained in the criminal cases, which have been registered so far against him. As a sequel, the miscellaneous petitions, pending if any, shall stand closed. There shall be no order as to costs.