2009 (5) TMI 918 - HC - Customs

Detention of person - illegal trading of diazepam lorazepam alprazolam clonazepam and phenobarbitone - Section 3(1) of the PIT- NDPS Act -

Issues Involved:
1. Legality of the detention orders under Section 3(1) of the PIT-NDPS Act.
2. Application of mind by the detaining authority.
3. Interpretation of 'illicit trafficking' under Section 2(e) of the PIT-NDPS Act.
4. Relevance of Supreme Court judgments and their applicability.
5. Interplay between NDPS Act and NDPS Rules.
6. Personal liberty and preventive detention.

Detailed Analysis:

1. Legality of the Detention Orders:
The petitions challenged the detention orders passed by the Joint Secretary to the Government of India under Section 3(1) of the PIT-NDPS Act. The petitioners were detained for allegedly engaging in the illegal trading of psychotropic substances. The court examined whether the detention orders were legally valid and concluded that the orders were not justified as the alleged activities did not constitute 'illicit trafficking' under the PIT-NDPS Act.

2. Application of Mind by the Detaining Authority:
The petitioners argued that the detaining authority did not consider the bail orders properly, reflecting a non-application of mind. The court found that the detaining authority failed to consider the Supreme Court judgment in Rajesh Kumar Gupta, which was crucial for determining the legality of the petitioners' activities. The court emphasized that the detaining authority must meticulously follow the procedure established by law, especially when personal liberty is at stake.

3. Interpretation of 'Illicit Trafficking':
The court examined whether the export of the psychotropic substances by the petitioners constituted 'illicit trafficking' under Section 2(e) of the PIT-NDPS Act. It was noted that the substances were not listed in Schedule-I of the NDPS Rules, and therefore, their export did not fall under the prohibited activities defined as 'illicit trafficking'. The court concluded that the petitioners' activities did not amount to 'illicit trafficking' as per the legal definitions.

4. Relevance of Supreme Court Judgments:
The petitioners relied on the Supreme Court judgment in Rajesh Kumar Gupta, which held that the export of psychotropic substances not listed in Schedule-I of the NDPS Rules does not constitute an offense under the NDPS Act. The respondents argued that this judgment was not applicable. The court, however, found the judgment relevant and binding, emphasizing that the Supreme Court's interpretation of the law must be followed.

5. Interplay Between NDPS Act and NDPS Rules:
The court analyzed the interplay between the NDPS Act and the NDPS Rules, particularly Rules 53 and 58. It was determined that Rule 58, which requires export authorization, is subject to Rule 53, which prohibits the export of substances listed in Schedule-I of the NDPS Rules. Since the substances in question were not in Schedule-I, Rule 58 did not apply, and the petitioners' activities were not prohibited under the NDPS Act.

6. Personal Liberty and Preventive Detention:
The court highlighted the importance of personal liberty and the need for strict adherence to legal procedures in cases of preventive detention. It was stressed that preventive detention should not be used as a punitive measure and must be justified within the constitutional and legal framework. The court referred to various judgments underscoring the protection of personal liberty against arbitrary detention.

Conclusion:
The court allowed the writ petitions, setting aside the detention orders dated 27.02.2009 and 13.03.2009, directing the release of the petitioners. It was concluded that the detention orders were not justified as the alleged activities did not amount to 'illicit trafficking' under the PIT-NDPS Act, and the detaining authority had failed to apply its mind properly. The court reiterated the importance of safeguarding personal liberty and ensuring that preventive detention is used only in clear and undisputable cases.

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