Narendra Sharma vs State Of U.P. And 6 Others

HIGH COURT OF JUDICATURE AT ALLAHABAD
HABEAS CORPUS WRIT PETITION No. - 1070 of 2025
Narendra Sharma …..Petitioner(s)
Versus
State of U.P. and others …..Respondent(s)
Counsel for Petitioner(s) : Mr. Ajay Kumar Pandey, Advocate
Counsel for Respondent(s) : Mr. Anoop Trivedi, Additional
Advocate General along with Mr.
Shashi Shekhar Tiwari, Additional
Government Advocate for
respondents nos. 1, 3, 4, 5, 6 and 7
Mr. Shiv Kumar Pal, Deputy
Solicitor General of India for
respondent no. 2
RESERVED
Court No. - 64
HON’BLE J.J. MUNIR, J.
HON’BLE VINAI KUMAR DWIVEDI, J.
(DELIVERED BY : J.J. MUNIR, J.)
This petition for a writ of habeas corpus has been instituted by the
petitioner Narendra Sharma, praying that a rule nisi be granted, ordering
him to be produced before the Court and set at liberty, after declaring the
detention order dated 01.08.2025 passed by the Secretary, Department of

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HABC No. 1070 of 2025
Home, Government of Uttar Pradesh, Lucknow under Section 3(1) of the
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
1
Substances Act, 1988 illegal. It is in these terms that the petitioner prays
that the rule be made absolute.
2. The case of the petitioner is that he was arrested on 08.07.2023 in
Case Crime No. 348 of 2023, under Sections 8/21/22/25/27A/29/60 of the
2
Narcotic Drugs and Psychotropic Substances Act, 1985 , read with
Sections 149/420/467/468/471 of the Indian Penal Code, 1860 and
Sections 17(B), 27(C), 18(C) and 27 of The Drugs and Cosmetics Act,
3
1940 , Police Station Jagdishpura, District Agra. Next, on 09.07.2023, the
petitioner was arrested in Case Crime No. 494 of 2023, under Sections
8/21/22/25/27A/29/60 NDPS Act, read with Sections
149/420/467/468/471 IPC and Sections 17(B), 27(C), 18(C) and 27 of the
Act of 1940, Police Station Sikandra, District Agra. This implication came
on the basis of the statement of a co-accused in this crime, while the
petitioner was in jail. The next implication that the petitioner faced in
quick succession was on 29.07.2023 in Case Crime No. 393 of 2023,
under 8/21/22/25/27A/29/60 NDPS Act, Police Station Jagdishpura, Agra.
The petitioner's implication in Case Crime No. 393 of 2023 aforesaid was,
again, one while he was still in custody of the respondents, after the arrest
of co-accused Raj Kumar in the crime, without any valid or cogent reason.
The petitioner was granted bail by this Court in Case Crime No. 393 of
1 ‘PIT-NDPS Act’ for short
2 ‘NDPS Act’ for short
3 ‘Act of 1940’ for short

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2023 (supra) on 04.10.2023; in Case Crime No. 494 of 2023 (supra) on
01.11.2023; and, in Case Crime No. 348 of 2023 on 24.01.2024. It is
emphasised that until 29.07.2023, the petitioner was in the custody of the
respondents and implicated in two other cases, while in their custody,
without there being any event, apparently on the basis of the statements of
the co-accused.
3. After release on bail, on 21.10.2024 at around 05:45 p.m., the
petitioner was driving in his car, when officers of the Anti-Narcotics Task
4
Force , Operational Unit Agra, Zone Agra, District Agra forcibly stopped
his car and apprehended him. The petitioner asserts that he was kept in
illegal custody by the ANTF aforeaid for two days. He was then arrested
in connection with Case Crime No. 691 of 2024, under Sections
8/21/22/25/27A/29/60 NDPS Act, read with Section 319(2)/318(4)/338/
5
336(3)/340(2)/111/276/277 of the Bharatiya Nyaya Sanhita, 2023 and
Sections 17(B), 27(C), 18(C) and 27 of the Act of 1940, Police Station
Sikandra, District Agra. This arrest was shown as if the petitioner had
been apprehended on the spot, while involved in the crime. There is an
assertion that there exists CCTV footage, clearly showing that the entire
act of the officers of the ANTF was one of illegally apprehending the
petitioner and forcibly taking him away in their vehicle.
4. While the petitioner was in jail in connection with Crime No. 691
of 2024 (supra), the respondents opened a gang chart, and on its basis,
4 ‘ANTF’ for short
5 ‘BNS’ for short

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registered Case Crime No. 156 of 2026, under Section 2/3 of the Uttar
6
Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 ,
Police Station Jagdishpura, District Agra. The gang chart included Crime
Nos. 393 of 2023, 348 of 2023 and 494 of 2023. The petitioner was
granted bail by the order dated 11.07.2025 passed by this Court in Crime
No. 691 of 2024. He asserts that seven out of the ten co-accused in Case
Crime No. 156 of 2025, under Section 2/3 of the UP Gangsters Act were
granted bail by this Court, while the petitioner's bail application in Crime
No. 156 of 2025 was pending before this Court.
5. The Secretary (Home), Government of Uttar Pradesh, Agra, acting
as the Detaining Authority, passed the impugned order of detention under
Section 3(1) PIT-NDPS Act. The petitioner was informed about the
detention order on 03.08.2025, while lodged in the District Jail, Agra. The
petitioner submitted his reply against the detention order to the Jail
Superintendent, District Jail, Agra on 24.08.2025. The Detaining
Authority rejected the petitioner's representation on 14.10.2025. On
17.10.2025, the Advisory Board upheld the detention order and approved
it for the period of one year.
6. Aggrieved by the detention order dated 01.08.2025, this habeas
corpus writ petition has been instituted.
7. This petition was admitted to hearing on 26.11.2025 and a rule nisi
issued. A counter affidavit bearing number 2 of 2025 has been filed on
6 ‘UP Gangsters Act’ for short

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HABC No. 1070 of 2025
behalf of the State Government; another, on behalf of the District
Magistrate, Agra; and still another, on behalf of the Commissioner of
Police, Agra. The last two affidavits bear numbers 4 of 2025 and 3 of
2025, respectively. A counter affidavit was filed on behalf of the Jail
Superintendent, District Jail, Agra, bearing number 7 of 25, and another
one, on behalf of the Drug Inspector, Department of Food Safety and
Drug Administration, Agra. This affidavit bears number 5 of 2025. A
counter affidavit was filed on behalf of the Union of India, and another,
on behalf of the Anti-Narcotics Task Force, Operational Unit, Agra Zone
Agra by the Deputy Superintendent of Police, Anti-National Task Force,
Agra. These affidavits bear numbers 14 of 2026 and 15 of 2026,
respectively. To the eight counter affidavits thus filed on behalf of the
respondents, the petitioner has filed an equal number of rejoinders. A
supplementary affidavit dated 31.01.2026 has been filed on behalf of the
petitioner.
8. Heard Mr. Ajay Kumar Pandey, learned Counsel for the petitioner,
Mr. Anoop Trivedi, learned Additional Advocate General assisted by Mr.
Shashi Shekhar Tiwari, learned Additional Government Advocate on
behalf of respondents nos. 1, 3, 4, 5 and 6 and Mr. Shiv Kumar Pal,
learned Deputy Solicitor General of India appearing on behalf of
respondent no. 2.
9. It is argued by Mr. Ajay Kumar Pandey, learned Counsel for the
petitioner, that it is a case of non-application of mind on the part of the

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HABC No. 1070 of 2025
Detaining Authority, while ordering the petitioner's detention under the
PIT-NDPS Act. He submits that the petitioner was already on bail granted
by this Court on 11.07.2025 in Crime No. 691 of 2024, but, in the grounds
of detention, the petitioner is shown to be in jail in the aforesaid crime.
This fact, according to learned Counsel for the petitioner, clearly discloses
non-application of mind to relevant facts. The impugned order was made
on 01.08.2025, leaving approximately a clear period of 20 days for the
Detaining Authority to know the current status of the petitioner as regards
his bail in Crime No. 691 of 2024, but the Detaining Authority wrongly,
and without knowing the status of the petitioner's bail, passed the order
impugned, mentioning an incorrect fact that the petitioner was in jail in
connection with Crime No. 691 of 2024. Learned counsel argued that the
order of detention was made primarily on two ill-founded assumptions;
firstly, that if the petitioner were enlarged on bail, he would abscond and
prejudice the trial; and, secondly, he would again indulge in the same
crime for monetary benefit. Both the assumptions are urged to be ill-
founded, because there was no fact, circumstance or document to
substantiate the aforesaid ill-founded apprehension of the detaining
authority.
10. The next ground on which Mr. Pandey assails the impugned order
is what is called “snapping of the live and proximate link”. He submits
that there are three situations under which the principle of live and
proximate link, developed through judicial precedent can be applied to

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HABC No. 1070 of 2025
judge the validity of a detention order. The first is where there is a
substantial gap between the arrest of the person (in the crime) and the
detention order; secondly, where there is a significant gap between the last
alleged offence and the date of the detention order; and, thirdly, where
there is a considerable gap between the report of the Sponsoring Authority
and the passing of the detention order. The submission is that in the
petitioner's case, it is the second principle that is violated, inasmuch as the
last First Information Report against the petitioner was lodged on
23.10.2024, whereas the detention order was passed on 01.08.2025,
resulting in an unexplained time gap of nine months and nine days,
snapping the live and proximate link between the alleged prejudicial
activity and the order of detention.
11. It is next submitted that the Sponsoring Authority has relied upon a
report prepared on 20.05.2025 by the ANTF, Meerut i.e. after a lapse of
32 days from the completion of investigation in Crime No. 691 of 2024
on 18.04.2025. It is pointed out that the ANTF, Meerut, was assigned
investigation of Crime No. 691 of 2024 alone due to allegations of
corruption against the ANTF, Agra surfacing in the media. It is urged that
on 18.04.2025, the ANTF, Meerut ceased to be the competent authority to
act as the Sponsoring Authority to propose preventive detention.
Consequently, the delay involved and the lack of jurisdiction of the
Sponsoring Authority render the detention arbitrary. There is clearly a

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HABC No. 1070 of 2025
breach of the principle of live and proximate link, which stands snapped
in this case.
12. The next ground of attack to the detention that the learned Counsel
for the petitioner comes up with is that the Detaining Authority's
subjective satisfaction about the necessity of making the order of
detention is not based on objective material and merely based on
apprehension. It is submitted by Mr. Pandey that the petitioner was on bail
in all four cases, upon which, the detention order is founded and was duly
participating in all the ongoing trials. This fact does not find mention in
the grounds of detention. The detention order and the grounds only show
that the petitioner is bailed out in all cases except Crime No. 691 of 2024.
At the time of the making of the detention order, the petitioner had been
granted bail in this case as well. The Detaining Authority, without
application of mind, recorded its subjective satisfaction that is based upon
the report of the Sponsoring Authority, accepting it as gospel.
13. The other contention is that the detention order classifies the
petitioner as a habitual offender, which is certainly not the case, according
to the learned Counsel. Mr. Pandey submits that the petitioner has not
been convicted in any of the four cases. He further submits that no person
can be classified as a habitual offender until and unless he has at least
been convicted in any one of the cases registered against him. Here, the
petitioner was arrested in one of the cases and his involvement in the three
others is based on statements of co-accused. This kind of implication in

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HABC No. 1070 of 2025
four criminal cases cannot serve as basis to classify the petitioner a
habitual offender.
14. In support of these submissions, Mr. Pandey has placed reliance
upon Jahanara Bibi @ Jahanara Begam @ Jahanara Mondal @ Janu v.
7
Union of India and others . It is emphasised that assuming for argument's
sake that the ANTF, Meerut is the competent Sponsoring Authority, the
Screening Committee report and the detention order, read together,
demonstrate a complete absence of subjective satisfaction. Both
documents are verbatim reproductions of each other, reflecting a
mechanical exercise of power, with no independent application of mind or
effort to collect and consider latest and relevant material concerning the
cases against the petitioner.
15. Learned counsel for petitioner next questions the detention order on
the ground of violation of his fundamental right, particularly that under
Article 22 of the Constitution. The PIT-NDPS Act, when compared with
other statutes that provide for preventive detention, like the National
8
Security Act, 1980 is completely silent on various aspects central to a
citizen's liberty. Mr. Pandey enumerates these wanting provisions in the
NDPS Act as follows :
i. The Act doesn't provide the "opportunity of
representation"
7 2025 SCC OnLine Cal 7003
8 ‘NSA’ for short

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HABC No. 1070 of 2025
ii. There is no provision that governs the making of the
sponsoring authority report or the screening committee
report.
iii. Proper procedural information regarding the
preparation of reports is absent from the Act, and even the
procedural information regarding who can be a sponsoring
authority or who are members of the screening committee is
not found in the Act.
iv. The procedures regarding detention are completely
working on the whims and fancies of the police, the prime
example being that there are no criteria that provide for a
minimum conviction to impose the PIT-NDPS Act, even if any
person is allegedly accused of an offence under the NDPS
Act, the police can take steps and invoke the PIT-NDPS Act.
16. Mr. Pandey advances a novel argument on the basis of these
features in the NDPS Act, which he says violate the mandate of Article 22
of the Constitution. He submits that in circumstances where such major
discrepancies are discernible in the Act aforesaid, the benefit of doubt
must go to the petitioner. Elucidating further on his submissions under
this limb of challenge, learned Counsel for the petitioner says that the
petitioner was taken before the Advisory Board during the hearing, but not
allowed legal representation, much in violation of Article 22. The
petitioner was not informed about various orders of rejection passed by
the State Government. It is again emphasised that the PIT-NDPS Act is
completely silent regarding the opportunity of representation. The NSA,
though enacted earlier, talks about the opportunity of representation by
Section 8 thereof, but the PIT-NDPS Act is silent regarding
representation, contrary to the mandate under Article 22 of the
Constitution. Mr. Pandey submits that it is a case of curtailment of the

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HABC No. 1070 of 2025
petitioner's liberty without trial. It is also urged that a cryptic order of
detention is more punitive in nature than preventive.
17. Mr. Anoop Trivedi, learned Additional Advocate General has
resisted the challenge laid by the petitioner and urged that the detention
order has been passed after taking into consideration relevant and
objective material. Subjective satisfaction, therefore, is well-founded. The
order of detention neither suffers from non-application of mind nor is this
a case of snapping of the live and proximate link. The petitioner was
consistently involved in three cases under the NDPS Act and was
apprehended in a fourth, after he was released on bail in three cases in the
year 2024. The submission is that the petitioner is persistent and relentless
in his deviant behavior and involved in illegal manufacture of spurious
narcotic drugs, that have a serious impact on the society at large. The
order of detention has been passed taking into consideration the entire
dossier forwarded to the Sponsoring Authority recommending detention.
The petitioner's representation against the detention order has been
considered by the Detaining Authority, which was made on 24.08.2025
through the Jail Superintendent, District Jail, Agra. It was forwarded to
the Home Department on the said date itself by the jail authorities.
18. Upon the said representation, comments were called from the
Office of the District Magistrate, Agra. These were received from the
District Magistrate on 18.02.2025. The matter was then sent for approval
to the Chief Secretary and subsequently, the petitioner’s representation

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HABC No. 1070 of 2025
rejected vide order dated 14.10.2025. It is further submitted that the
petitioner was facilitated in appearing before the Advisory Board,
Preventive Detention, Uttar Pradesh, Lucknow on 25.09.2025, and
thereafter, upon receiving the report of the Advisory Board, the detention
order dated 01.08.2025 was confirmed for a period of one year on
17.10.2025, under section 9(f) PIT-NDPS Act.
19. A perusal of the grounds of detention reveals that the petitioner,
Narendra Sharma, along with a number of other persons, which includes
Rohit Kushwaha son of Vijay Singh, Diwan Singh son of Radhe Shyam,
Vijay Goyal son of Rajesh Goyal, Rekha Goyal wife of Vijay Goyal,
Shani Raj son of Harish Chand, Amit Pathak son of late Jagannath Prasad,
Ashok Kumar Kushwaha, Bhola Kushwaha son of Ashok Kumar
Kushwaha, Shiv Kumar Kushwaha son of Raghuveer Singh Kushwaha,
Jitendra Kushwaha son of Bachchu Singh, Lokendra Kushwaha son of
Kamal Singh, Alok Kushwaha son of Purushottam, Ravi Kant son of
Murari Lal, Vishal Agrawal son of Shankar, Bhudeo, Mukesh Kumar son
of Sahab Singh and Suraj Gaur son of Mangal, is involved, according to
the grounds, in a racket of manufacture of spurious drugs, which involves
possession of narcotic drugs and psychotropic substances. The petitioner
is the leader of this gang and they have factories in residential areas
manufacturing spurious drugs, where machinery for the manufacture of
these drugs, raw materials, packaging machines and material have all been
recovered by the officers of the ANTF, Agra.

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HABC No. 1070 of 2025
20. In case of the first crime i.e. Crime No. 348 of 2023, the grounds of
detention show that on 08.07.2023, the ANTF, Agra, along with some
police force from Police Station Jagdishpura, Agra, and a Drug Inspector,
acting on the information of a police informer, apprehended a Grand
Vitara Car bearing registration number UP 80 GN 3989 at the Bichhpuri-
Pithauli Canal, near the Bicchpuri cut, laden with medicines such as
Ocirex C Syrup 230 units, Alprasafe 0.5 mg. 1200 units, Phensedyl Syrup
200 units and cash in the sum of ₹ 1,20,000, apparently, money earned of
the business in illicit dealing in drugs. The occupants of the car, to wit,
Rohit Kushwaha and Diwan Singh, were arrested. Rohit Kushwaha and
Diwan Singh, on their pointing, led the ANTF to a house in Krishna Vihar,
Bichhpuri, located near the Patahuli Canal, under the construction bridge.
In the said pucca house, an illegal factory of drugs was found, wherefrom
the petitioner, Narendra Sharma, besides Mukesh Kumar, were arrested.
The factory had a unit of compressor machine of 27 stations, another unit
of compressor machine of 23 stations, one blister pack machine, a multi
mill, a mass mixer, a dryer, one unit sickter, a stove of steel for the
purpose of making pastes, a furnace together with cylinder, a printer
machine, another unit of air compressor, a generator with an output of 30
kilowatts, beside a number of small tools necessary in the manufacture of
drugs. In addition, a scale and one unit of electronic scale were found. The
ANTF also found on this premises a unit of aluminum packing roll for
Alprasafe tablets, 800 unprinted cartons, 179 tablets of Alfinex Plus, 7680

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HABC No. 1070 of 2025
Alprasafe tablets, 600 tablets of Alprasafe without print, 120 units of
Onerex Syrup, 834 grams of Alprazolam Powder, 22.480 kgs. of Orange-
coloured powder, 162 kgs. of Dibasic Calcium Powder, 38.460 kgs. of
Pharmaceutical Excipient IP, 200 kgs. of micro crystalline cellulose,
32.460 kgs. of Alprasafe tablets, 52 kgs. of aluminum foil, 22.420 kgs. of
powder without label, 100 kgs. of corn flour, 8.22 kgs. of Pyrazonic
Silica, 60.22 kgs. of Talcum Powder, 17.22 kgs. of Sodium Starch Glyco,
72.80 kgs. of micro-crystalline cellulose, 25.420 kgs. of Croscarmellose
Sodium, 50.16 kgs. of Paracetamol IP, 5 kgs. of Dicyclomine
Hydrochloride.
21. The grounds mention that the aforesaid illegal drug factory was
owned by Narendra Sharma, resident 58, Shankarpuri, Kedarnath, Police
Station Shahganj, Agra and Vijay Goyal son of Rajesh Goyal, resident of
Plot No. 8, Icon City, Magtai, Police Station Jagdishpura, Agra, who are
running it in partnership. They would raise forged bills in the name of
reputed companies, label, seal and package drugs in their name and
launch these in the national and international markets. The vehicle, that
was apprehended with Rohit Kushwaha and Diwan Singh on board,
carrying some of these spurious narcotic drugs, bearing Registration No.
UP 80 GN 3989, also stand in the petitioner's name.
22. The grounds further show that in relation to the other Crime No.
494 of 2023, the ANTF, at the pointing out of Rohit Kushwaha,
discovered another illegal drug factory situate in House No. 5381, Avas

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HABC No. 1070 of 2025
Vikas Colony, Bodhla, Police Station Jagdishpura, Commissionerate
Agra. Elaborate stock of spurious medicines and equipment was found
there, including NDPS drugs. From the said premises, one Ajit Parashar
son of Kishan Swarup and another Shani Raj, son of Harish Chand were
arrested. They revealed that this factory is run in partnership with
Narendra Sharma, the petitioner and also Vijay Goyal.
23. Likewise, in Crime No. 393 of 2023, on 29.07.2023, the ANTF,
Agra, along with the Police of Police Commissionerate, Agra and the
Drug Inspector, on the information of an informer, apprehended a Loader
bearing number UP 80 DT 2506 near the Chahar Academy. It was loaded
with drugs such as Welcyrex Syrup 240 units, Alprasafe 0.5 mg. 60000
tablets and Alzocel 0.5 mg. 18000 tablets, which were in custody of Raj
Kumar alias Bantu son of Rakesh, who was arrested. He disclosed that the
consignment belonged to Vijay Goyal and Narendra Sharma, the
petitioner, and that the said medicines had been loaded at the godown and
were meant for delivery to a companion of Vijay Goyal, Deepak. Spurious
narcotic drugs recovered were stored away for some time in a shop, and
on Raj Kumar's pointing, the ANTF crossed the Bichhpuri Gate and went
to Rama Vihar Colony. In front of the colony, they were led to the Baba
Natthi Gayasi Market, where a godown of drugs was located. There, they
found, in large quantity, narcotic drugs detailed in the grounds of
detention. The last of the two cases surfaced while the petitioner was in

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HABC No. 1070 of 2025
jail in connection with the first crime mentioned in the grounds.
Thereafter, he was granted bail.
24. On 23.10.2024, Sub-Inspector Gaurav Sharma of the ANTF, Agra,
was led to a godown in the basement of one Udaiveer Singh's house,
where, illegally manufactured spurious psychotropic drug, Montair FX
tablets, were found in the quantity 4006 110x15 tablets, Proxywel Spas
capsule bearing Batch No. P06CA29 were found in the quantity of
82200x8 capsules, Alzocel tablets in the quantity of 61320x10 tablets and
a number of other medicines in large quantities. Machines to manufacture
these drugs were also recovered from the petitioner, along with Vijay
Goyal and a number of other co-accused. Another thirteen were found to
be the owners of the factory and the godown as well. It is this material, on
the foot of which, the Detaining Authority has proceeded to pass the
impugned order.
25. We first proceed to test the petitioner's submission regarding the
detention being bad on account of non-application of mind in permitting
the grounds of detention. Two points that have been raised to bring home
the case of non-application of mind have already been noted. So far as the
case of the petitioner being granted bail in Crime No. 691 of 2024 is
concerned, whereas it is mentioned in the grounds that he was in jail in
relation to the said crime, in fact, he had already been granted bail there.
We are of opinion that the fact that the Detaining Authority was not aware
in relation to what crime the petitioner was in jail would vitiate his

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subjective satisfaction, in any event. The reason is that for the detenue
who is already in jail in connection with a crime, the power of preventive
detention can be exercised by the Detaining Authority if he is aware that
the detenue is in jail and there is likelihood of his being released on bail.
26. The next concomitant of the exercise of this power is that the
Detaining Authority should also be satisfied that once released on bail, he
would re-indulge in crime, in this case, under the NDPS Act. The object
of an order of preventive detention is to prevent the detenue from again
indulging in the same crime and it has nothing to do with the prosecution.
Nevertheless, the most fundamental postulate to a valid exercise of the
power of preventive detention in regard to a person already in judicial
custody in connection with a crime is, firstly, awareness about the fact that
the person is in jail; and, secondly, about the crime, in connection with
which, he is in jail. The second condition is necessary, because, it is
essential for the exercise of the power of preventive detention by the
Detaining Authority in the case of a person already in jail that he should
be subjectively satisfied, again, on the basis of some object material, that
there is real likelihood of the person being released on bail in the crime.
27. In order to assess whether there is likelihood of a person being
released on bail in the crime, the Detaining Authority must know what the
crime is, the facts, the evidence appearing against the detenue, and, may
be, the orders of bail or refusal passed in relation to similarly
circumstanced co-accused by the Court. If, therefore, the Detaining

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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.
The facts here are very unusual, because it seldom happens that the
Detaining Authority, while being aware that the detenue is in jail,
considers his detention as one made in relation to a case different than the
one he is actually incarcerated in. There have been cases where the
detenue, though already released on bail, is considered by the Detaining
Authority to be in jail, while passing the order of detention. In that case,
the detention order would be vitiated. Reference in this connection may be
made to a very recent decision of the Supreme Court in Mortuza Hussain
9
Choudhary v. State of Nagaland and others . In that authority of their
Lordships, recapitulating the law regarding preventive detention of
persons already in judicial custody, it was observed :
8. We may now note precedential law on the subject. In
Kamarunnissa v. Union of India , the detenus were already in
judicial custody at the time the orders of preventive
detention were passed against them. This Court affirmed
that detention orders could be validly passed against
detenus who were in jail, provided the officers passing the
orders were alive to the factum of the detenus being in
custody and there was material on record to justify the
conclusion that they would indulge in similar activities,
if set at liberty. Reference was made to the earlier
decision of this Court in Binod Singh v. District
Magistrate, Dhanbad, Bihar , wherein it was held that there
9 2025 SCC OnLine SC 502

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must be cogent material before the officer passing the
detention order to infer that the detenu was likely to be
released on bail and such an inference must be drawn from
the material on record and must not be the ipse dixit of
the officer passing such order. This Court, therefore,
emphasized that before passing the detention order in
respect of a person who is in jail, the concerned authority
must satisfy himself and such satisfaction must be reached
on the basis of cogent material that there is a real
possibility of the detenu being released on bail and,
further, if released on bail, the material on record must
reveal that he/she would indulge in prejudicial activity
again, if not detained.
9. On similar lines, in Rekha v. State of Tamil Nadu , a 3-
Judge Bench of this Court affirmed that, where a detention
order is passed against a person already in jail, there
should be a real possibility of the release of that person
on bail, that is, he must have moved a bail application
which is pending. It was observed that if no bail
application is pending it logically followed that there is
no likelihood of the person in jail being released on bail.
The Bench, however, pointed out that the exception to this
Rule would be where a co-accused, whose case stood on the
same footing, was granted bail. The Bench cautioned that
details in this regard have to be recorded, otherwise the
statement would be mere ipse dixit and cannot be relied
upon. The law laid down in Rekha (supra) was reiterated and
followed in Huidrom Konungjao Singh v. State of Manipur .
10. Earlier, in Union of India v. Paul Manickam , this Court
observed that, where detention orders are passed against
persons who are already in jail, the detaining authority
should apply its mind and show awareness in the grounds of
detention of the chances of release of such persons on bail.
It was observed that the detaining authority must be
reasonably satisfied, on the basis of cogent material, that
there is a likelihood of the detenu's release and in view of
his/her antecedent activities, which are proximate in point
of time, he/she must be detained in order to prevent him/her
from indulging in such prejudicial activities. It was held
that an order of detention would be valid in such
circumstances only if the authority passing the order is
aware of the fact that the detenu is actually in custody; the
authority has a reason to believe, on the basis of reliable
material, that there is a real possibility of the detenu
being released on bail; and that, upon such release, he/she
would, in all probability, indulge in prejudicial activities;
and it is felt essential to detain him/her to prevent him/her
from so doing. This principle was again reiterated and
applied in Union of India v. Dimple Happy Dhakad .
28. Further, in Mortuza Hussain Choudhary (supra), it was held :
12. Given the settled legal position, as set out supra , we
are of the opinion that the orders of detention passed
against Ashraf Hussain Choudhary and Adaliu Chawang cannot be
sustained. The authorities concerned paid mere lip service to
the mandatory requirements and mechanically went through the
motions while dealing with the cases of these two
individuals. The proposals submitted by the Investigating
Officer noted the fact that both the detenus were arrested on
12.04.2024 and that they had not been released on bail.
Reference was also made to their involvement in earlier

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cases. In the case of Adaliu Chawang, the Investigating
Officer stated that she was arrested in Meghalaya in
connection with FIR dated 21.04.2021 but noted that she was
not treated as absconding after being granted bail. In the
case of Ashraf Hussain Choudhary, the Investigating Officer
stated that he was earlier arrested in connection with a case
registered by Dimapur East PS in the year 2022, but noted
that he was also not absconding in relation thereto after
securing bail.
13. The Investigating Officer, however, did not state anything
about either of the detenus seeking bail in relation to
Narcotics PS Case No. 005/24, after being arrested on
12.04.2024. The covering letters dated 14.05.2024 and
17.05.2024 addressed by the Additional Director General of
Police to the Special Secretary, Home Department, Government
of Nagaland, reiterated the factum of both the detenus having
been arrested on 12.04.2024 and their being in judicial
custody on that date. He, however, went on to state that, if
granted bail, there was a great chance of both of them
continuing with illicit trafficking of narcotic drugs and
psychotropic substances. There was no basis whatsoever for
this ipse dixit statement, as it is an admitted fact that
neither Ashraf Hussain Choudhary nor Adaliu Chawang had
applied for bail at the time the detention orders were passed
against them. As noted earlier, it was only on 28.11.2024
that they were granted default bail owing to the failure of
the prosecution to do the needful within the prescribed time.
Therefore, the edicts of this Court, referred to supra , would
squarely apply as there was no material for the detaining
authority to have formed an opinion that there was a
likelihood of either Ashraf Hussain Choudhary or Adaliu
Chawang being released on bail.
29. In Mortuza Hussain Choudhary, the subjective satisfaction of the
Detaining Authority was regarded vitiated by the Supreme Court, because,
no bail application had been moved by the two persons involved there in
the crime, in connection with which, they were in jail on the date on
which the detention order was passed. Therefore, there was no basis for
the Detaining Authority to conclude that the detenues were likely to be
released on bail. There is consistent authority about cases where no bail
applications were made and yet the Detaining Authority inferred that there
was likelihood of the detenue being released on bail, where, by
preponderant opinion, it was held that the subjective satisfaction of the

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Detaining Authority about the likelihood of the detenue being released on
bail was vitiated.
30. Here, as already remarked, the subjective satisfaction is vitiated for
a very different reason. If the Detaining Authority was unaware about the
fact that the detenue had already been granted bail in Crime No. 691 of
2024 under the NDPS Act, and was actually in jail on account of his
involvement in Crime No. 156 of 2025 under the UP Gangsters Act, there
is no basis for the Detaining Authority to form an opinion, founded on
objective material, that there was likelihood of the petitioner being
released on bail. 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.
31. Once we have reached this conclusion, there is no occasion to
consider the other points raised by learned Counsel for parties and
pronounce upon them, because, the detention stands vitiated on this short
ground alone.
32. We are informed that the petitioner has been enlarged on bail in
Crime No. 156 of 2025 by this Court vide order dated 14.01.2026 passed
in Criminal Misc. Bail Application No. 25679 of 2025. A copy of the
order, downloaded from the official website of the High Court, has been
shown to us.

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33. In the result, this petition succeeds and stands allowed. The rule
nisi is made absolute. The continued detention of the petitioner, pursuant
to the detention order dated 01.08.2025 passed by the Secretary,
Department of Home, Government of U.P., Lucknow, under Section 3(1)
PIT-NDPS Act, is declared illegal. The petitioner be set at liberty
forthwith, unless wanted in connection with some other case.
34. The Registrar (Compliance) is directed to communicate this order
to the Secretary, Department of Home, Government of U.P. Lucknow
through the learned Chief Judicial Magistrate, Lucknow.
(J.J. MUNIR, J.)
(VINAI KUMAR DWIVEDI, J.)
Allahabad
June 29, 2026
I. Batabyal
Whether the order is speaking : Yes
Whether the order is reportable : Yes
Digitally signed by :-
ISHAN BATABYAL
High Court of Judicature at Allahabad