LexSAYED ABUL ALA versus UNION OF INDIA AND ORS.
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SAYED ABUL ALA A ~- v. UNION OF INDIA AND ORS. SEPTEMBER 26, 2007 [S.B. SINHA AND H.S. BEDI, JJ.] B d Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988-Detention under-For possessing contraband articles though accused under judicial custody and proceedings under c NDPS Act initiated against him-Detention order confirmed by Advisory Board-Representations for revoking detention order rejected-Dismissal of Writ Petition-On appeal held: Detenu was not deprived of opportunity of being represented before Advisory Board- Delay in considering the representation not fatal-Thus, only further D detention of detenu became illegal and the original detention order not vitiated-Detaining Authority took into consideration antecedent of detenu; that he retracted from his earlier confession; and that he had filed application for bail-Co-accused of detenu not released on bail and thus, detaining authority was to apply his mind on the material E on record to arrive at his subjective satisfaction-Thus, on facts and circumstances of the case, detention order not sustainable and set aside-Narcotic Drugs and Psychotropic Substances Act, 1985. ->l Contraband articles were allegedly recovered from the F possession of the appellant. The appellant was arrested and was remanded to Narcotic Control Bureau custody till 8.12.1999, whereafter he was remanded to judicial custody. Though prosecution proceedings under the Narcotic Drugs and Psychotropic Substances Act, 1985 were initiated against the appellant and he continued to be in judicial custody, by order dated 15.2.2000 appellant was G ~. detained under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. It was held that there was every likelihood of his being released on bail by the Court, whereupon he was likely to engage himself in illicit traffic in Narcotic drugs 631 H I -r 632 SUPREME COURT REPORTS [2007] 10 S.C.R. A therefore, there was compelling necessity to detain him under the 1988 Act. Appellant filed application not to transfer him to Delhi but the same was rejected. Thereafter, on 22.4.2000 meeting of the Advisory Board was held and the detention order was confirmed on 12.5.2000. Appellant's first representation for B revocation of the detention order was rejected. He then filed another representation to the detaining authority for reconstitution of Advisory Board as he was deprived of his right to appear before it on 22.4.2000 but the same was also rejected. ~' Aggrieved, appellant filed writ petition on the ground that he was c deprived of opportunity to appear before the Advisory Board; that the letter issued by the appropriate Government to him was ante- dated and his advocate received the same after the Advisory Board held its meeting, the same was illegal and thus it was obligatory on the part of the appropriate Government to D reconstitute the Advisory Board; that his second representation was based on fresh facts and new grounds, there was undue delay in disposal of his representation and that the detaining authority ·y had mechanically passed the detention order without taking intu consideration the relevant fact that he was alleged to have E committed serious offences under the Act and in view of section 37 it was unlikely that he would have been released on bail. High Court rejected the grounds. Hence the present appeal. Allowing the appeal, the Court HELD: 1.1. An application for bail is required to be filed and ;..~ F considered by the appropriate Court in terms of Section 439 of Cr.P.C. but in cases involving the provisions ofNDPS Act, the detaining authority was required to take into consideration the restrictions imposed on the power of the court to grant bail having G regard to the provisions of section 37 thereof. Thus, the statute, puts limitation on the jurisdiction of the court in the matter of grant ~ of bail. They cannot be ignored by any Court of Law. Therefore, proper application of mind on the part of the detaining authority "• must, be borne out from the order of detention. H [Paras 19, 20 and 21] [641-D; 642-B-C) SAYED ABUL ALA v. UNION OF INDIA 633 1.2. In cases where the detenu is in custody, the detaining A 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
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