RAJESH SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) THESE petitions seeking the issuance of a writ of habeas corpus are directed against the detention orders passed against the petitioners in each of the petitions by the Joint Secretary to the Government of India, department of Revenue, Ministry of Finance, New Delhi in purported exercise of powers conferred under Section 3 (1) of the Prevention of Illicit traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'the PIT-NDPS Act" ). The detention order in the case of the petitioner Rajesh Sharma in WP (CRL) 326/2009 was made on 27. 02. 2009, whereas the detention order in respect of the petitioner Nafe singh in WP (CRD 384/2009 was made on 13. 03. 2009.

(2.) BOTH Rajesh Sharma and Nafe Singh were arrested with other co-accused Diwakar Gupta and Amit Kohli on 06. 05. 2008 on the allegation that they had indulged in illegal trading of diazepam, lorazepam, alprazolam, clonazepam and phenobarbitone. These are all drugs specified in Schedule 'h' to the Drugs and Cosmetics Rules, 1945. It is also an admitted position that they are psychotropic substances and are specified in the Schedule to the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act' ). However, these substances are not mentioned in Schedule-I to the Narcotic Drugs and Psychotropic substances Rules, 1985 (hereinafter referred to as 'the NDPS Rules' ).

(3.) BOTH Rajesh Sharma and Nafe Singh applied for bail. Their bail applications were rejected by the learned Special Judge, NDPS, New Delhi on 31. 10. 2008. Thereafter, two of the co-accused, namely, Diwakar Gupta and Amit Kohli filed bail applications before this court. However, the same were sought to be withdrawn on the submission that there was a change of circumstances, namely, that the investigation had been completed and that the learned Special Judge had not considered the decisions of the Supreme court and of this court in State of Uttaranchal v. Rajesh Kumar Gupta, 2007 (1) SCC 355 and Rajender Gupta v. The State, 2005 III AD (Cr.)DHC 606, respectively, in the proper perspective. Consequently, liberty was granted to the said co-accused to move a fresh bail application before the learned Special Judge who was directed to deal with the aforesaid judgments in the correct perspective. The said order was of a learned Single Judge of this court on 01. 12. 2008. Thereafter, the learned Special Judge, after considering the aforesaid decisions, granted bail to the co-accused Diwakar gupta and Amit Kohli on 24. 12. 2008. This was followed by the grant of bail to the petitioners in these writ petitions, namely, Rajesh Sharma and Nafe singh on 07. 01. 2009. On 09. 02. 2009, both Rajesh Sharma and Nafe Singh along with other co-accused persons entered appearance through their counsel in the applications filed by the respondent No. 2 (Narcotics Control bureau) for cancellation of the bail granted to the said persons. While the cancellation of bail applications were pending before this court, the aforesaid detention orders have been passed on the dates indicated above and both rajesh Sharma and Nafe Singh were taken into custody and sent to jail where they are presently detained.