Preventive Detention Of Person Already In Jail Vitiated If Detaining Authority Doesn't Know Case In Which He Is Incarcerated: Allahabad High Court

The Allahabad High Court has held that an order of preventive detention passed under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 against a person already in jail is vitiated by non-application of mind, where the Detaining Authority does not know, or wrongly knows, the case in which the detenu is in custody. It held that without knowing the case, the Detaining Authority cannot form an opinion, based on objective material, that the detenu is likely to be released on bail, which is an essential precondition for preventively detaining a person already in judicial custody.The bench of Justice J.J. Munir and Justice Vinai Kumar Dwivedi held,“If, therefore, the Detaining Authority, while being rightly aware that the detenue is already in jail, does not know in connection with what case he is in jail or wrongly knows the case that is keeping him behind bars, he can never exercise his subjective satisfaction to form an opinion that there is likelihood of the detenue being released on bail in the near future. This part of the satisfaction is a sine qua non for the exercise of power of preventive detention by the Detaining Authority in case of a person already in jail.”In 2023, petitioner was booked in three cases under the Narcotic Drugs and Psychotropic Substances Act, 1985 in connection with an alleged racket of manufacture of spurious drugs, and was granted bail in all three. In October 2024, he was arrested in a fourth case, Crime No. 691 of 2024, under the NDPS Act read with provisions of the BNS and the Drugs and Cosmetics Act, 1940. While he was in jail in this case, a gang chart was opened including the three earlier cases, and Case Crime No. 156 of 2025 under Section 2/3 of the U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 was registered against him. He was granted bail in Crime No. 691 of 2024 by the High Court on 11.07.2025.On 01.08.2025, the Secretary, Department of Home, Government of Uttar Pradesh, acting as the Detaining Authority, passed an order of detention against the petitioner under Section 3(1) of the NDPS Act. The grounds of detention described the petitioner as the leader of a gang running illegal factories in residential areas of Agra manufacturing spurious drugs, from which machinery, raw material, packaging equipment and large quantities of narcotic drugs and psychotropic substances were recovered. The petitioner's representation against the detention was rejected on 14.10.2025, and on 17.10.2025, upon the report of the Advisory Board, the detention was confirmed for a period of one year. Aggrieved, the petitioner filed a habeas corpus writ petition.Counsel for the petitioner argued that the grounds of detention showed the petitioner to be in jail in Crime No. 691 of 2024, though he had already been granted bail in that case around twenty days before the order was passed, disclosing non-application of mind. He argued that the gap of nine months and nine days between the last FIR against the petitioner, lodged on 23.10.2024, and the detention order “snapped the live and proximate link” between the alleged prejudicial activity and the detention. It was also argued that the petitioner, who had not been convicted in any case, could not be classified a habitual offender.The Court observed that preventive detention of a person already in judicial custody requires the Detaining Authority to be aware, firstly, that the person is in jail, and secondly, of the crime in connection with which he is in jail. It held that to assess whether there is a likelihood of the detenu being released on bail, the Detaining Authority must know what the crime is, the facts, the evidence appearing against the detenu and the bail orders passed in relation to similarly circumstanced co-accused. The Court relied on the decision of the Supreme Court in Mortuza Hussain Choudhary v. State of Nagaland, where detention orders were set aside as there was no material before the Detaining Authority to conclude that the detenus, who had not even applied for bail, were likely to be released.The Court noted that the grounds of detention recorded that the petitioner was in jail in Crime No. 691 of 2024, whereas he had already been granted bail in that case and was actually in custody in the case under the U.P. Gangsters Act. Holding that the subjective satisfaction of the Detaining Authority stood vitiated, the Court observed,“He could not form an opinion about the likelihood of bail being granted to the petitioner, in connection with a case he did not know about. The subjective satisfaction of the Detaining Authority in this case is, therefore, clearly vitiated due to non-application of mind.”Since the detention stood vitiated on this ground alone, the Court did not examine the remaining contentions raised by the parties. Accordingly, allowing the petition and making the rule nisi absolute, the Court declared the continued detention of the petitioner...

Preventive Detention Of Person Already In Jail Vitiated If Detaining Authority Doesn't Know Case In Which He Is Incarcerated: Allahabad High Court

Upasna Agrawal

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Preventive Detention Of Person Already In Jail Vitiated If Detaining Authority Doesn't Know Case In Which He Is Incarcerated: Allahabad High Court

Upasna Agrawal

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