# Faizan Khan v. Adhikshak Janpad/Kendriya Karagar, Bareilly & Ors

- **Citation:** (2024) 5 ILRA 2517
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-14
- **Case number:** Habeas Corpus Writ Petition No. 271 of 2024
- **Bench:** Arvind Singh Sangwan, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/faizan-khan-v-adhikshak-janpad-kendriya-karagar-bareilly-ors-52086
- **Pages:** 7

## Headnote

A. Criminal Law - Detention - The
Prevention of Illicit Traffic in Narcotic
Drugs and Psychotropic Substances Act,
1988 - Section 3(1) - The competent
authority under COFEPOSA and PIT NDPS
Act
is
required
to
consider
the
representation submitted by the detenue
which is an additional right to his right to
make
representation
to
the
State
Government and Central Government.
(Para 15)

The detention of the petitioner is based on two
F.I.Rs. i.e. C.C. No. 65 of 2021 and 1091 of

## Text

5 All. Faizan Khan Vs. Adhikshak Janpad/Kendriya Karagar, Bareilly & Ors.
2517
27. It is made clear that in case of
any dispute with regard to guardianship or
custody, or any claim with regard to
visitation rights, it would be open to the
parties concerned to take recourse to
appropriate statutory remedy.

28. The petition stands disposed
of.
----------
(2024) 5 ILRA 2517
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.05.2024 &
20.05.2024

BEFORE

THE HON'BLE ARVIND SINGH SANGWAN, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Habeas Corpus Writ Petition No. 271 of 2024

Faizan Khan ...Petitioner
Versus
Adhikshak
Janpad/Kendriya
Karagar,
Bareilly & Ors. ...Respondents

Counsel for the Petitioner:
Sri Chandrakesh Mishra, Sri Daya Shankar
Mishra (Sr. Advocate)

Counsel for the Respondent:
A.S.G.I., Sri Alok Ranjan Mishra, G.A.

A. Criminal Law - Detention - The
Prevention of Illicit Traffic in Narcotic
Drugs and Psychotropic Substances Act,
1988 - Section 3(1) - The competent
authority under COFEPOSA and PIT NDPS
Act
is
required
to
consider
the
representation submitted by the detenue
which is an additional right to his right to
make
representation
to
the
State
Government and Central Government.
(Para 15)

The detention of the petitioner is based on two
F.I.Rs. i.e. C.C. No. 65 of 2021 and 1091 of
2021. Admittedly, the petitioner after facing full
length trial stand acquitted in first F.I.R. i.e. C.C.
No. 65 of 2021 vide judgment dated 09.06.2023
passed by Special Judge (NDPS Act)/Additional
Sessions Judge, Bareilly and, therefore, this very
base of this F.I.R. in both impugned orders
stand vitiated. (Para 17A)

(1) In the impugned rejection order dated
12.3.2024, no reasons has been assigned for
dealing with the judgment of acquittal of
petitioner. On the face of it, this order is totally
non speaking order as in one line it has been
stated that the representation of the petitioner
stand rejected. Even nothing has been stated in
this order that any opportunity of hearing was
granted to the petitioner before passing of this
order.

(2) With regard to second F.I.R. i.e. Case Crime
No. 1091 of 2021, it is admitted case of the
prosecution that the petitioner was not named
in the F.I.R. and his name surfaced on the
disclosure of an accused who was arrested at
the spot. Therefore, the petitioner was neither
arrested at the spot by the police nor any
recovery of narcotic drugs and psychotropic
substances was effected from him. In the
absence of the Court verdict holding him guilty
of offence, impugned order of detention is very
harsh.

B. Where the ground of detention were
vague or based on stale event or there is
delay in decision on the representation,
the detention order can be set aside. (Para
16)

Fact which needs consideration is that Case
Crime No. 65/2021 where the petitioner stands
acquitted relates to 2021 and second and third
F.I.R. also pertains to same year within short
span of time. The petitioner surrendered on
12.1.2022 in F.I.R. No. 1091 of 2021 and in the
intervening period he has not committed any
new offence under the NDPS Act. Even the third
F.I.R. i.e. Case Crime No. 28 of 2021 26.01.2021
which though not relied upon in the impugned
orders is also of same District i.e. Bareilly.
Therefore, from 2021 till 12th January 2024
when the detention period of the petitioner
started, despite gap of three years, there was no
fresh F.I.R. registered against the petitioners
and this fact was not recorded in the rejection
2518 INDIAN LAW REPORTS ALLAHABAD SERIES
order though a detailed representation was
given by the petitioner. (Para 17B)

Grounds taken in the impugned orders
that petitioner was hiding himself is
apparently incorrect and this aspect is not
at all considered while passing both the
impugned orders as it is apparent that
when his name surfaced in second F.I.R.
i.e. Case Crime No. 1091 of 2021, the
petitioner surrendered before the Special
Judge, NDPS Act on 12.01.2022 and was
again granted bail. (Para 17C)

When the petitioner was facing trial of Case
Crime No. 65 of 2021 and on various dates, he
regularly appeared before the Special Judge,
NDPS Act, Bareilly where the prosecution
evidence was recorded and then his statement
u/s 313 Cr.P.C. was recorded and in between at
least 13-14 dates were given. Therefore, (Para
17C)

C. When vital material or vital facts are
withheld and not placed by the Sponsoring
Authority before the Detaining Authority,
it vitiate the procedure. Petitioner submits
that admittedly in the instant case, till date the
vital material relied upon by the Sponsoring
Authority or by the Screening Authority had not
been disclosed to the petitioner and, therefore,
detention of the petitioner under PIT NDPS Act
is illegal. (Para 14)

D. Right provided u/Article 22 (5) of the
Constitution of India is a substantive right
and, if there is violation of the same, the
detention order is liable to be quashed.
(Para 13)

Thus, it is apparent that the material forming basis
of the opinion of the competent authority i.e.
proposal of the Sponsoring Authority and
recommendation of the Screening Authority, to
pass impugned orders were never supplied to the
petitioner and he has not been afforded proper
opportunity of hearing and the impugned order of
rejection is totally non speaking order w.r.t. the
pleas raised by the petitioner. (Para 18)

E. It will be matter of trial whether
confession recorded by the police of a co-
accused while in police custody will be
admissible against the co-accused i.e.
petitioner when after his arrest, no recovery of
narcotic drugs and psychotropic substances is
effected. (Para 17A)

Accordingly, the impugned orders are set aside.
The petitioner be released forthwith if he is not
required in any other case on furnishing surety
bond and personal bond. (Para 19)

Petition allowed. (E-4)

Precedent followed:

1. Smt. Icchu Devi Choraria Vs U.O.I.& ors.,
1980 0 AIR (SC) 1983 (Para 13)

2. Mohinuddin Vs D.M., Beed & ors., 1987 0 AIR
(SC) 1977 (Para 13)

3. Smt. Shalini Soni Vs U.O.I.& ors., 1981 0 AIR
(SC) 431 (Para 13)

4. S. Gurdip Singh Vs U.O.I.& ors., 1981 0 AIR
(SC) 362 (Para 13)

5. Sushanta Kumar Banik Vs St. of Tripura &
ors., 2022 0 AIR (SC) 4715 (Para 14)

6. Kamleshkumar Ishwardas Patel Vs U.O.I.&
ors., 1995 0 Supreme (SC) 538 (Para 15)

7. Kamalveer Singh Vs Adhikshak Janpad
Karagar & ors., 2024 0 Supreme (All) 466 (Para
16)

8. Tofan Singh Vs St. of T. N., (2013) 16 SCC 31
(Para 17(A))

Present petition is to issue a writ in the
nature of Habeas Corpus for quashing the
order dated 22.07.2022 u/s 3 (1) of PIT
NDPS Act and to release the petitioner
from judicial custody.

(Delivered by Hon'ble Arvind Singh
Sangwan, J.)

1. Heard Shri Daya Shankar
Mishra, learned Senior Counsel assisted by
Shri Chandrakesh Mishra, learned counsel
5 All. Faizan Khan Vs. Adhikshak Janpad/Kendriya Karagar, Bareilly & Ors.
2519
for the petitioner, Sri Alok Ranjan Mishra,
learned counsel for the Union of India,
learned A.G.A. for the State and perused
the record.

2. In this petition is to issue a writ
in the nature of Habeas Corpus for quashing
the order dated 22.07.2022 under Provision
3 (1) of PIT NDPS Act and to release the
petitioner from judicial custody.

3. Brief facts of this case are that
the petitioner Faizan Khan @ Raja Babu
was arrested in F.I.R. No. 65 of 2021
registered under Section 8/ 21 of NDPS
Act, Police Station- Qila, District- Bareilly
on 01.03.2021. The petitioner was granted
bail on 04.06.2021 and was released from
custody.

4. As per the first additional
affidavit filed on behalf of the petitioner,
vide judgement dated 09.06.2023 passed by
the Special Judge, NDPS Act/ Additional
Sessions, Court No.8, Bareilly after a full
length trial, the petitioner was acquitted of
the charge.

5. It is further stated that later on the
petitioner was nominated as an accused in F.I.R.
No. 1091 of 2021 registered on 27.11.2021, on
the disclosure of a co-accused. The petitioner
was neither named in the F.I.R. nor arrested at
the spot and, therefore, no recovery of either
Narcotic Drugs and Psychotropic Substances
was affected from him. It is stated that the
petitioner later on surrendered before the Court
on 18.01.2022 and, thereafter, he was granted
bail on 04.03.2022. It is further stated that the
charge sheet has been submitted and case is
pending trial and no adverse order has been
passed against the petitioner.

6. It is further stated that the
impugned order dated 22.07.2022 is passed
invoking the provisions of PIT NDPS Act
is based upon the aforesaid two FIRs Nos.
65 of 2021 and 1091 of 2021. It is submitted
that copy of the order was never served
upon the petitioner, who was released from
the custody on 4.3.2022 in the second
F.I.R., till 12.01.2024. It is submitted that
intervening period against the petitioner
neither any proceedings under Sections 82/
83 of the Cr.P.C. was pending nor any such
proceeding is pending before the trial court
where the second F.I.R. is pending. It is also
submitted that the petitioner, who was on
bail in the first F.I.R. No. 65 of 2021, where
he has already been acquitted vide
judgement dated 09.06.2023, was regularly
appearing and his statement under Section
313 Cr.P.C. was recorded, well within the
knowledge of the prosecuting agency as per
dates described in paragraph no.11 of the
petition. The learned counsel for the
petitioner submitted that it has been
wrongly noticed in the impugned order that
the petitioner was absconding though he
was facing the trial and appearing before
the court in the first F.I.R. It is submitted
that while passing impugned order on
06.03.2024. It is stated that the order dated
22.07.2022 is served upon the petitioner on
12.01.2024 when he was arrested and
lodged in the District Jail Bareilly on
12.01.2024 and, therefore, he will remain in
preventive detention for one year w.e.f.
12.01.2024
till
11.01.2025.
Learned
counsel for the petitioner has assailed that
both these orders by way of filing this writ
petition.

7. Learned counsel for the
petitioner submits that one of the ground
taken is that the opinion formed by the
counseling authority for sending the
proposal to the screening committee; the
report prepared by the screening committee
and the material relied upon both the
2520 INDIAN LAW REPORTS ALLAHABAD SERIES
counseling
authority
and
screening
committee were never supplied to the
petitioner and, therefore, he was denied his
right for making an effective representation
against the impugned orders.

8. Learned counsel for the
petitioner submits that after a gap of two
months vide order dated 12.03.2024, the
representation filed by the petitioner stands
rejected by the Deputy Secretary to
Government of India, Department of
Revenue PIT NDPS Division by passing a
totally non speaking order and without
assigning any reasons and the grounds
taken by the petitioner in his representation.

9. Two separate replies by the
learned counsel for the State-respondent
nos. 1 & 4 as well as learned counsel for the
Union of India-respondent nos. 2 & 3 are
filed by way of affidavit. In the reply filed
by State, it is stated that the petitioner is
lodged
in
Central
Jail
Bareilly
in
compliance of the order passed by the
Competent Authority under Provision of
PIT NDPS Act. It is submitted that
representation of the petitioner stands
rejected by the Competent Authority.

10. In reply filed by the Union of
India, the details of F.I.R. No. 65 of 2021 is
given. Wherein, it was admitted that the
petitioner was granted bail by the trial
court. Learned counsel for the respondent
nos. 2 & 3 could not dispute that the
petitioner stands acquitted in this F.I.R.
after facing full length trial. With regard to
the second F.I.R. No. 1091 of 2021, it is
stated that persons, namely, Parvez Alam,
Moinuddin, Avinash and Babu Gora @
Ansaar along with Shaan Khan were
arrested and they nominated the petitioner
as their associate. However, it is admitted
that the petitioner was not arrested at the
spot and he surrendered before the Special
Judge, NDPS Act, Bareilly on 18.01.2022
and was later on released on bail. However,
it is submitted that subsequently the
petitioner was nominated in one more
F.I.R., the details of which are placed on
record vide second supplementary affidavit
filed by the petitioner i.e. F.I.R. No.0028 of
2021 dated 26.01.2021 under Section 8/ 21/
29 of NDPS Act, 1985, Police Station Qila,
District Bareilly. In this F.I.R., three
persons, namely, Parvez Alam, Moinuddin
and Avinash were arrested and they
informed that they have purchased ten
small packets of 10 gms/ 20 gms of smack
from Sahib Raza, Kadir and Faizan (present
petitioner) for the purpose of selling to
general public.

11. However, it is submitted that
the petitioner was not arrested in this F.I.R.
and he is on bail. It is further submitted that
report dated 20.06.2022 of counseling
authority and NCB Zonal Unit, Lucknow
was received by Ministry on 04.07.2022,
which was sent to Screening Committee on
04.07.2022
Screening
Committee
recommended the proposal for preventive
detention under PIT NDPS Act and
accordingly the detention order dated
22.07.2022 was passed under Section 3 (1)
of PIT NDPS Act by the Detaining
Authority that the Joint Secretary to
Government of India. It is also submitted
that the petitioner was concealing himself
from the process of law and surrendered on
12.01.2024 and the order became operative
from the date of said order for one year. It
is submitted that all the grounds of
detention was duly served upon the
petitioner as he was found involved under
the NDPS Act. It is also submitted that the
representation of the petitioner after due
consideration stands rejected by the
Competent Authority on 12.03.2024 by
5 All. Faizan Khan Vs. Adhikshak Janpad/Kendriya Karagar, Bareilly & Ors.
2521
following due process of law and the same
stands communicated to the petitioner.

12. In reply, counsel for the
petitioner submits that mere mentioning of
ground in the order of detention do not
comply with the mandate of providing the
material on the basis of which, the
Sponsoring Authority has prepared the
proposal and Screening Authority has
submitted a report to the competent
authority. In the absence of supplying the
same, the representation filed by the
petitioner
in
which
this
ground
is
specifically taken, is rejected by passing a
non speaking order as mere formalities and
do not protect the legal right of the
petitioner.

13. Counsel for the petitioner has
referred to the decision in Smt. Icchu Devi
Choraria Vs. Union of India and others,
1980 0 AIR (SC) 1983, to submit that it is
held by the Supreme Court of India that
right provided under Article 22 (5) of the
Constitution of India is a substantive right
and, if there is violation of the same, the
detention order is liable to be quashed.
Similar view is taken by the Supreme Court
in Mohinuddin Vs. District Magistrate,
Beed and others, 1987 0 AIR (SC) 1977,
Smt. Shalini Soni vs. Union of India and
others, 1981 0 AIR (SC) 431 and in S.
Gurdip Singh vs. Union of India and
others, 1981 0 AIR (SC) 362.

14. Counsel has then relied upon
another decision in Sushanta Kumar
Banik Vs. State of Tripura and Ors.,
2022 0 AIR (SC) 4715, whereby the
Supreme Court has held that when vital
material or vital facts are withheld and
not placed by the Sponsoring Authority
before the Detaining Authority, it vitiate
the procedure. Counsel submits that
admittedly in the instant case, till date the
vital
material
relied
upon by
the
Sponsoring Authority or by the Screening
Authority had not been disclosed to the
petitioner and, therefore, detention of the
petitioner under PIT NDPS Act is illegal.

15. Learned counsel has relied
upon another judgment of Supreme Court
in Kamleshkumar Ishwardas Patel vs.
Union of India and others, 1995 0
Supreme (SC) 538 wherein it has been
held that the competent authority under
COFEPOSA and PIT NDPS Act is
required to consider the representation
submitted by the detenue which is an
additional right to his right to make
representation to the State Government
and Central Government.

16. Counsel has also relied upon
the judgment of this Court in Kamalveer
Singh Vs. Adhikshak Janpad Karagar
and Others, 2024 0 Supreme (All) 466,
wherein it has been held that where the
ground of detention were vague or based
on stale event or there is delay in decision
on the representation, the detention order
can be set aside.

17. After hearing the counsels for
the parties, we find merit in the present
writ petition for the following reasons :

A. The detention of the petitioner
is based on two F.I.Rs. i.e. Case Crime
No. 65 of 2021 and 1091 of 2021.
Admittedly, the petitioner after facing full
length trial stand acquitted in first F.I.R.
i.e. Case Crime No. 65 of 2021 vide
judgment dated 09.06.2023 passed by
Special Judge (NDPS Act)/Additional
Sessions Judge, Court No.8 Bareilly and,
therefore, this very base of this F.I.R. in
both impugned orders stand vitiated.
2522 INDIAN LAW REPORTS ALLAHABAD SERIES
In the impugned rejection order
dated 12.3.2024, no reasons has been
assigned for dealing with the judgment of
acquittal of petitioner. On the face of it, this
order is totally non speaking order as in one
line
it
has
been
stated
that
the
representation of the petitioner stand
rejected. Even nothing has been stated in
this order that any opportunity of hearing
was granted to the petitioner before passing
of this order.
With regard to second F.I.R. i.e.
Case Crime No. 1091 of 2021, it is admitted
case of the prosecution that the petitioner
was not named in the F.I.R. and his name
surfaced on the disclosure of an accused
who was arrested at the spot. Therefore, the
petitioner was neither arrested at the spot by
the police nor any recovery of narcotic
drugs and psychotropic substances was
effected from him. In the absence of the
Court verdict holding him guilty of offence,
impugned order of detention is very harsh.
Though no reliance can be placed
on the third F.I.R. which is brought to the
notice of this Court by way of reply on
behalf of respondent Nos.2 & 3, Union of
India. However, perusal of the F.I.R. No. 28
of 2021 dated 26.01.2021 also reflects that
police arrested three persons from a car and
recovered 10/20 grams of smack in small
packets and again recorded their confession
in which, it has come that they received the
same from three persons namely Sahab
Raja, Nazim and petitioner-Faizan Khan
Alias Raja Babu. It is admitted by
respondent No.2 & 3 that petitioner is on
bail in the said case as well and nothing was
recovered from him. In both these F.I.Rs.
i.e. Case Crime No. 1091 of 2021 dated
27.11.2021 and Case Crime No. 28 of 2021
dated 26.01.2021, it will be matter of trial
whether confession recorded by the police
of a co-accused while in police custody will
be admissible against the co-accused i.e.
petitioner when after his arrest, no recovery
of
narcotic
drugs
and
psychotropic
substances is effected in view of the
decision of Supreme Court in Tofan Singh
vs. State of Tamil Nadu, (2013) 16 SCC
31.
B. Another fact which needs
consideration is that Case Crime No.
65/2021 where the petitioner stands
acquitted relates to 2021 and second and
third F.I.R. also pertains to same year
within short span of time. The petitioner
surrendered on 12.1.2022 in F.I.R. No.
1091 of 2021 and in the intervening period
he has not committed any new offence
under the NDPS Act. Even the third F.I.R.
i.e. Case Crime No. 28 of 2021 26.01.2021
which though not relied upon in the
impugned orders is also of same District i.e.
Bareilly. Therefore, from 2021 till 12th
January 2024 when the detention period of
the petitioner started, despite gap of three
years, there was no fresh F.I.R. registered
against the petitioners and this fact was not
recorded in the rejection order though a
detailed representation was given by the
petitioner.
C.
Another
fact
which
is
highlighted by the petitioner is that the
petitioner was facing trial of Case Crime
No. 65 of 2021 and on various dates, he
regularly appeared before the Special
Judge, NDPS Act, Bareilly where the
prosecution evidence was recorded and
then his statement under Section 313
Cr.P.C. was recorded and in between at
least 13-14 dates were given. Therefore,
grounds taken in the impugned orders that
petitioner was hiding himself is apparently
incorrect and this aspect is not at all
considered
while
passing
both
the
impugned orders as it is apparent that when
his name surfaced in second F.I.R. i.e. Case
Crime No. 1091 of 2021, the petitioner
surrendered before the Special Judge,
5 All. Tamilnadu Generation & Distribution Corp. Ltd. & Ors. Vs. State of U.P. & Ors.
2523
NDPS Act on 12.01.2022 and was again
granted bail.

18. Thus, from the above, it is apparent
that the material forming basis of the opinion of
the competent authority i.e. proposal of the
Sponsoring Authority and recommendation of
the Screening Authority, to pass impugned
orders were never supplied to the petitioners in
terms of the decisions in Smt. Icchu Devi
Choraria's Case (Supra), Mohinuddin's
Case (Supra), Smt. Shalini Soni's Case
(Supra) and S. Gurdip Singh's Case (Supra)
and he has not been afforded proper opportunity
of hearing and the impugned order of rejection
is totally non speaking order with regard to the
pleas raised by the petitioner.

19. Accordingly, this petition is
allowed. The impugned orders are set aside.
The petitioner be released forthwith if he is not
required in any other case on furnishing surety
bond and personal bond.

20. However, it is made clear if petitioner
is found involved in any subsequent F.I.R., it
will be open for the authorities to initiate fresh
proceedings against the petitioner.
----------

Hon'ble Arvind Singh Sangwan,J.
Hon'ble Ram Manohar Narayan Mishra,J.

(Order on Correction Application No.3 of
2024. )

1. Heard learned counsel for the
petitioner and learned A.G.A. for the State and
perused the material available on record.

2. Learned counsel for the petitioner
prays for correction in the order dated
14.05.2024 passed by this Court.
3. Learned counsel for the petitioner
submitted that due to typographical mistake in
the order dated 14.05.2024 in the tenth line of
paragraph No.11 of the order the date of
surrender is mentioned as 12.01.2024, where as
it is 10.01.2024. Similar mistake has occurred in
fourth line of paragraph No.17 B date of
surrender is wrongly mentioned 12.01.2024,
whereas the correct date of surrender is
10.01.2024.

4. Counsel further submitted that in
paragraph No.19 inadvertently it is mentioned
that "the petitioner be released forthwith if he is
not required in any other case, on furnishing
surety bond and personal bond."

5. It is submitted that since the
petitioner was detained under the preventive
detention, therefore, there is no provision for
furnishing surety bond and personal bond.

6. Accordingly, paragraph No.19 is
recast as follows- Accordingly, this petition is
allowed. The impugned orders are set-aside.
The petitioner be set at liberty forthwith if he is
not required in any other case.

7. With the aforesaid modification/
correction in the order dated 14.05.2024,
the application for correction stands
disposed of.
----------
(2024) 5 ILRA 2523
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2024

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ C No. 10525 of 2024

Tamilnadu
Generation
&
Distribution
Corp. Ltd. & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents