NDPS Act: Allahabad High Court orders immediate release of Faizan Khan

The Allahabad High Court has allowed the petition of Faizan Khan alias Raja Babu, lodged in Bareilly District Jail under the NDPS Act and ordered his immediate release if he is not required in any other case.

The Division Bench of Justice Arvind Singh Sangwan and Justice Ram Manohar Narayan Mishra passed this order while hearing a Habeas Corpus Petition filed by Faizan Khan Alias Raja Babu.

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.

The facts of the case are that the petitioner Faizan Khan @ Raja Babu was arrested in F.I.R 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.

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, Bareilly after a full length trial, the petitioner was acquitted of the charge.

It is further stated that later on the petitioner was nominated as an accused in F.I.R 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 the case is pending trial and no adverse order has been passed against the petitioner.

It is further stated that the order dated 22.07.2022 is passed invoking the provisions of PIT NDPS Act is based upon the aforesaid two FIRs.

It is submitted that a 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 in the 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, where he has already been acquitted by 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 the petition.

The 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 FIR.

It is submitted while passing an 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.

Two separate replies by the counsel for the State-respondent nos 1 & 4 as well as 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.

After hearing the counsels for the parties, the Court found merit in the petition for the following reasons:

A. The detention of the petitioner is based on two F.I.Rs. Admittedly, the petitioner after facing full length trial stand acquitted in first F.I.R i.e Case by 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. 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 stands 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 the second F.I.R, it is an 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 the Court by way of reply on behalf of respondent Nos 2 & 3, Union of India. However, perusal of the F.I.R 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 dated 27.11.2021 and 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 the same year within a 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 a 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, NDPS Act on 12.01.2022 and was again granted bail.

The Court further observed 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.

Accordingly, the Court allowed the petition.

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, the Court ordered.