Mohd. Kareem vs State of U.P.and Others

On 30121999 the impugned order of detention against the petitioner under Section 3 (1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, was passed by the State Government.

The ground of detention indicates that at relevant time the bail application of the petitioner was pending before the Hon''ble High Court. The petitioner had asserted in the writ petition that on 1591999 Hon''ble High Court, rejected the bail application of the petitioner and no bail application preferred by him was pending at the time the order of detention was passed. The main intention or object of the detention without trial is to prevent a person from indulging into prejudicial activities. But certainly in a situation, where a person is likely to be released from detention, an order of detention can be passed. But if a person is incapacitated due to his detention and is already in jail, how he would indulge into prejudicial activities.

The counteraffidavit filed by the State is silent on that question. The Central Government has not even cared to file counteraffidavit. The request has been made by the Standing Counsel appearing on behalf of the Union of India to grant him further time to file a response.

We would not have refused such a request, which we generally concede. But in the present case we cannot accede that request because the question of liberty of citizen detained without trial is involved. The Union of India was given opportunity to file a counteraffidavit which was not filed hence, we have no alternative to decide the matter on the basis of averments made by the petitioner in the writ petition and the counteraffidavit filed on behalf of the State. No material has been placed before the Court to indicate that when the order of detention was passed bail application was pending and the petitioner was likely to be released.

In view of the aforesaid situation we are of the view that the detention of the petitioner is bad for the reason the State Government did not apply its mind over the fact that the petitioner was already under detent''on and could not have been released on bail and indulge into any prejudicial activities.

In view of what has been indicated hereinabove the writ petition is allowed, order of detention dated 30121999 passed by the State Government under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, cannot be sustained and accordingly is quashed. The petitioner shall be released forthwith, if not wanted in any other case. Petition allowed.