Taimoor Khan v. Union of India & Anr.

1. Petitioner has been detained so as to prevent him from engaging in illicit trafficking of Narcotic Drugs and Psychotropic Substances in future and a detention order has been passed by Joint Secretary to the Government of India on 03.02.2023 exercising powers under Section 3 (1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as said Act). Such order has, eventually, been confirmed vide order dated 21.04.2023 issued by the Deputy Secretary to the Government of India exercising power under Section 9 (f) of the said Act.

2. The above said detention order dated 03.02.2023 and confirmation order dated 21.04.2023 are under challenge before us.

3. We may, first, analyze the basis on which such detention order was passed.

4. According to such detention order dated 03.02.2023, the sponsoring authority i.e. DCP, Anti-Narcotics Task Force, Crime Branch, Delhi Police had brought to the attention of the Government of India that detenu, who was involved in ten cases, was actively indulged in trafficking of Narcotics Drugs and Psychotropic Substances on multiple occasions and that he was a habitual offender.

5. It will be worthwhile to refer to such ten cases in which detenu was involved at the time when detention order was passed. The brief details of these cases, as noted in the detention order, are as under:-

┌──────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┐
│                           S. No. FIR No.    PS               Under Section                   Remarks                 │
├──────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┤
│                           1      159/2021   Crime Branch     21/29 NDPS Act         Bail   was    granted    on      │
│                                                                                     16.01.2023                       │
│                           2      106/2018   Crime Branch     21/29 NDPS Act         Discharged on 31.10.2022         │
│                           W.P.(CRL) 1343/2023                                 Page 2 of 17                           │
│ Signature Not Verified                                                                                               │
│ Digitally Signed                                                                                                     │
│ By:SONIA THAPLIYAL                                                                                                   │
│ Signing Date:19.01.2024                                                                                              │
│ 16:05:16                                                                                                             │
│                           3      94/2018    Crime Branch          21/29 NDPS Act     Discharged by the trial court   │
│                                                                                      on 15.10.2022                   │
│                           4      45/2017    Special Cell         --                  Charges        have      been   │
│                                                                                      ascertained and prosecution     │
│                                                                                      evidence is being recorded.     │
│                                                                                      Accused is in JC.               │
│                           5      16/2013    Special Cell         21/29 NDPS Act      Supplementary charge-sheet      │
│                                                                                      has been filed                  │
│                           6      26/2012    Special Cell         21/29 NDPS Act      Charge-sheet has been filed.    │
│                                                                                      Status of bail not clear        │
│                           7      353/2008   Welcome, Delhi       21/61/85 NDPS Act   Acquitted by learned trial      │
│                                                                                      court on 29.09.2010             │
│                           8      300/2020   Farid Pur, Bareilly, 8/21/29/61 NDPS Act Status of bail not clear        │
│                                             UP                                                                       │
│                           9      304/2020   Farid Pur, Bareilly, 8/21/29/61 NDPS Act Status of bail not clear        │
│                                             UP                                                                       │
│                           10     327/2020   Farid Pur, Bareilly, 8/21/29/61 NDPS Act Status of bail not clear        │
│                                             UP                                                                       │
│                           6.     Reasons given in the impugned order are as under:-                                  │
│                                  “From the facts and circumstances in the cases mentioned above, it                  │
│                                  is clearly established that you i.e. Taimoor Khan @ Bhola @                         │
│                                  Tamoor are actively involved in trafficking of Narcotics Drugs and                  │
│                                  Psychotropic on multiple occasions and that you are a habitual                      │
│                                  offender.                                                                           │
│                                  I am aware that at present you i.e. Taimoor Khan @ Bhola @                          │
│                                  Tamoor are in judicial custody. However, considering your                           │
│                                  conscious involvement in illegal trafficking of drugs and                           │
│                                  psychotropic substances in a repeated manner to the detriment of                    │
│                                  the society, you have high propensity to be involved in the                         │
│                                  prejudicial activities in future on being released on bail.                         │
│                                  In view of the facts mentioned above, I have no hesitation in                       │
│                                  arriving at the conclusion that you i.e. Taimoor Khan @ Bhola @                     │
│                                  Tamoor through your above acts engaged yourself in prejudicial                      │
│                                  activities of illicit traffic of narcotics and psychotropic substances,             │
│                                  which poses serious threat to the health and welfare not only to the                │
│                                  citizens of this country but to every citizen in the world, besides                 │
│                                  deleterious effect on the national economy. The offences committed                  │
│                                  by you i.e. Taimoor Khan @ Bhola @ Tamoor are so interlinked                        │
│                                  and continuous in character and are of such nature that these affect                │
│                           W.P.(CRL) 1343/2023                                      Page 3 of 17                      │
└──────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┘

17. Here, as already noted above, the material, which was placed before the detaining authority, was perhaps portraying that detenu was in custody in six cases. Viewed thus, its unclear as to on what basis, such authority felt that he was likely to be released on bail in all such cases. Curiously and as already noted, sponsoring authority did not apprise the detaining authority that out of six cases, detenu had already been enlarged on bail in three cases. Be that as it may, if he was in custody in various cases, it was sine qua non on the part of detaining authority to record compelling reasons, particularly in light of the fact that such detenu was already languishing in jail for last around 15 months.

18. Moreover, there was nothing before the detaining authority which could have suggested that there was imminent possibility of his being released in near future and indulging in prejudicial activities. We may refer to the observations made by Hon’ble Supreme Court in Dharmendra Suganchand Chelawat and Another v. Union of India & Others (1990) Cri.L.J. 1232 which read as under:- In Binod Singh v. District Magistrate, Dhanbad [(1986) 4 SCC 416: 1986 SCC (Cri) 490] it has been laid down: “If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent.” In Smt Shashi Aggarwal v. State of U.P. [(1988) 1 SCC 436: 1988 SCC (Cri) 178] this Court while referring to the decision in Rasmesh Yadav v. District Magistrate, Etah [(1985) 4 SCC 232: 1985 SCC (Cri) 514] has observed: “What was stressed in the above case is that an apprehension of the detaining authority that the accused if enlarged on bail would again carry on his criminal activities is by itself not sufficient to detain a person under the National Security Act.” This Court has further observed: “Every citizen in this country has the right to have recourse to law. He has the right to move the court for bail when he is arrested under the ordinary law of the land. If the State thinks that he does not deserve bail the State could oppose the grant of bail. He cannot, however, be interdicted from moving the court for bail by clamping an order of detention. The possibility of the court granting bail may not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reasons apparent on the record that the detenu, if enlarged on bail, would act prejudicially to the interest of public order.” In Vijay Kumar v. Union of India [(1988) 2 SCC 57: 1988 SCC (Cri) 293] it has been held that two facts must appear from the grounds of detention, namely: (1) awareness of the detaining authority of the fact that the detenu is already in detention, and (2) there must be compelling reasons justifying such detention, despite fact that the detenu is already under detention. Shetty, J. in his concurring judgment, has posed the question: what should be the compelling reason justifying the preventive detention, if the person is already in jail and where should one find it? The learned Judge has rejected the contention that it can be found from material other than the grounds of detention and the connected facts therein and has held that apart from the grounds of detention and the connected facts therein, there cannot be any other material which can enter into the satisfaction of the detaining authority. The learned Judge has also observed that if the activities of the detenu are not isolated or casual and are continuous or part of the transaction or racket, then, there may be need to put the person under preventive detention, notwithstanding the fact that he is under custody in connection with a case. The learned Judge has quoted the following observations from the judgment of this Court in Suraj Pal Sahu v. State of Maharashtra [(1986) 4 SCC 378: 1986 SCC (Cri) 452]: “... but where the offences in respect of which the detenu is accused are so interlinked and continuous in character and are of such nature that these affect continuous maintenance of essential supplies and thereby jeopardize the security of the State, then subject to other conditions being fulfilled, a man being in detention would not detract from the order being passed for preventive detention.” In N. Meera Rani v. Government of Tamil Nadu [(1989) 4 SCC 418: 1989 SCC (Cri) 732] the legal position has been summed up as under: “We may summarise and reiterate the settled principle. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordinarily it is not needed when the detenu is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities the detention order can be validly made even in anticipation to operate on his release. This appears to us, to be the correct legal position.” In this case this Court has pointed out that there was no indication in the detention order read with its annexure that the detaining authority considered it likely that the detenu could be released on bail and that the contents of the order showed the satisfaction of the detaining authority that there was ample material to prove the detenu's complicity in the bank dacoity including sharing of the booty in spite of absence of his name in the FIR as one of the dacoits. The court held that the order for detention was invalid since it was made when the detenu was already in jail custody for the offence of bank dacoity with no prospect of his release. The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression “compelling reasons” in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.

19. As noticed above, detenu was already in custody for more than 15 months and, therefore, there was obvious time-lag between his alleged last offending act and the date of order of detention and, therefore also, it was incumbent on the part of detaining authority to have recorded its satisfaction that despite his being in incarceration for such considerable period, there were enough compelling reasons to pass detention order, while also elaborating such reasons.

20. We may also refer to observations made by Hon’ble Supreme Court in T.A. Abdul Rahaman v. State of Kerala (2018) 12 SCC 150 which read as under:- “There is no denying the fact that the impugned order has been passed after lapse of 11 months from the date of seizure of the eleven gold biscuits from the back courtyard of the house of the detenu. As repeatedly pointed out by this Court that there is no hard and fast rule that merely because there is a time lag between the offending acts and the date of order of detention, the causal link must be taken to be snapped and the satisfaction reached by the detaining authority should be regarded as unreal, but it all depends upon the facts and circumstances of each case and the nature of the explanation offered by the detaining authority for the delay that had occurred in passing the order. There is a catena of decisions on this point, but we feel that it is not necessary to recapitulate all those decisions except a salient few. This Court in Gora v. State of W.B. [(1975) 2 SCC 14: 1975 SCC (Cri) 391: (1975) 2 SCR 996] wherein there was a time lag of six months between the incident and the date of order of detention while answering a similar contention relied on the following passage from Golam Hussain v. Commissioner of Police, Calcutta [(1974) 4 SCC 530, 534 “No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because long ago the detenu had done something evil. To rule otherwise is to sanction a simulacrum of a statutory requirement. But no mechanical test by counting the months of the interval is sound. It all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. We have to investigate whether the causal connection has been broken in the circumstances of each case.” and laid down the ratio of proximity as follows: “There is, therefore, no hard and fast rule that merely because there is a time lag of about six months between the „offending acts‟ and the date of the order of detention, the causal link must be taken to be broken and the satisfaction claimed to have been arrived at by the District Magistrate must be regarded as sham or unreal. Whether the acts of the detenu forming the basis for arriving at a subjective satisfaction are too remote in point of time to induce any reasonable person to reach such subjective satisfaction must depend on the facts and circumstances of each case. The test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the „offending acts‟ and the order of detention. It is a subsidiary test evolved by the court for the purpose of determining the main question whether the past activities of the detenu is such that from it a reasonable prognosis can be made as to the future conduct of the detenu and its utility, therefore, lies only insofar as it subserves that purpose and it cannot be allowed to dominate or drown it. The prejudicial act of the detenu may in a given case be of such a character as to suggest that it is a part of an organised operation of a complex of agencies collaborating to clandestinely and secretly carry on such activities and in such a case the detaining authority may reasonably feel satisfied that the prejudicial act of the detenu which has come to light cannot be a solitary or isolated act, but must be part of a course of conduct of such or similar activities clandestinely or secretly carried on by the detenu and it is, therefore, necessary to detain him with a view to preventing him from indulging in such activities in the future.” In Hemlata Kantilal Shah v. State of Maharashtra [(1981) 4 SCC 647: 1982 SCC (Cri) 16] this Court held: “Delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, for, in certain cases delay may be unavoidable and reasonable. What is required by law is that the delay must be satisfactorily examined by the detaining authority.” See also Sk. Serajul v. State of W.B. [(1975) 2 SCC 78: 1975 SCC (Cri) 425], Rekhaben Virendra Kapadia v. State of Gujarat [(1979) 2 SCC 566: 1979 SCC (Cri) 543: (1979) 2 SCR 257], Harnek Singh v. State of Punjab [(1982) 1 SCC 116: 1982 SCC (Cri) 121], Shiv Ratan Makim v. Union of India [(1986) 1 SCC 404: 1986 SCC (Cri) 74], K. Aruna Kumari v. Government of Andhra Pradesh [(1988) 1 SCC 296: 1988 SCC (Cri) 116] and Rajendrakumar Natvarlal Shah v. State of Gujarat [(1988) 3 SCC 153: 1988 SCC (Cri) 575]. In a recent decision in Yogendra Murari v. State of U.P [(1988) 4 SCC 559: 1988 SCC (Cri) 992], this Court has reiterated the earlier view consistently taken by this Court observing: “... it is not right to assume that an order of detention has to be mechanically struck down if passed after some delay.... It is necessary to consider the circumstances in each individual case to find out whether the delay has been satisfactorily explained or not.” The conspectus of the above decisions can be summarised thus: The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case.

21. In Sama Aruna v. State of Telangana (2018) 12 SCC 150, it is observed that only those activities so far back in the past which lead to conclusion that such person was likely to engage in such activities again in the immediate future could be taken into account. Undoubtedly, there cannot be any hard and fast rule or rigid formula or mechanical test but detaining authority must accord its subjective satisfaction after due consideration.

22. In the case in hand, we have no hesitation in holding that livelink got severed as the detenu was already in custody for more than 15 months. The exact facts were not placed before the detaining authority. Thus, the detaining authority was neither in a position to hold that he was likely to be released in near future nor had any compelling reason to observe that if released, he would indulge in prejudicial activities. We may hasten to add that though we, normally, do not interfere with subjective satisfaction of detaining authority but, in the case in hand, there was no material to have returned such satisfaction.

23. In view of our foregoing discussion, we hereby allow the petition and the detenu is directed to be released from the detention centre forthwith unless required in any other case.

24. This order be also uploaded.

25. The petition stands disposed of in aforesaid terms.