A. R. TIWARI, J. ( 1 ) THE order of detention dated 7th May 1997. (Annexure-'p/1'), passed by Joint Secretary to the Government of India under Section 3 (1) of the Prevention of Illicit Traffic and Narcotic Drugs and Psychotropic Substances Act, 1988, (for short the Act) Tropic Substances Act, 1988, (for short the Act), against Ramniwas (detenu) with a view to preventing him from engaging in purchase, possession him from engaging in purchase, possession, concealment, transportation and illicit sale of narcotic drugs, is impugned in this Writ Petition under Article 226 of the Constitution of India seeking issuance of writ of Habeas Corpus. ( 2 ) FACTS lie in narrow compass an intelligence was collected by the officers of Central Bureau of Narcotics Neemuch on 19-11-1996, that the detenu has kept contraband opium in his Bada and is likely to dispose of the same to the smugglers. Pursuant Of his information, party of C. B. N. searched the premised of the said Bada of the detenu in the early hours of 19-11-1996. On search recovery of 13. 300 kgs. Of contraband opium was properly effected. It was concealed in canvas bag, packed in yellow coloured Urea bag and was kept hidden in the bushes on the right hand side Bata. The officers also found one Yamaha motor cycle bearing registration number MIU/6785, in the Bada. On enquiry, the detenu disclosed that the vehicle was registered in his name. Some drops of this vehicle. The vehicle was also seized under Section 60 (3) of the NDPS Act, 1985. A case was also registered against the detenu under Sections 8/18 and 8/29 of theNDPS Act, 1985. The detenu was arrested. He was produced before the Judicial Magistrate who remanded him to judicial custody. The detenu made inculpatory statements on 19-11-1996 and 20-11-1996. The applications for bail were rejected by the Sessions judge and thereafter by High Court. A sample was seized and sent to Chemical Analysis. The report confirmed this substance to be opium. The aforesaid authority with a view to preventing the detenu, passed the order of detention (Annexure p/1 ). The grounds dated 7-5-1997, (Annexure P12) were communicated to the detenu. The detenu submitted the representation (Annexure P/3) to the appropriate authority. The order of detention (Annexure P/1) is impugned in this writ petition. The report confirmed this substance to be opium. The aforesaid authority with a view to preventing the detenu, passed the order of detention (Annexure p/1 ). The grounds dated 7-5-1997, (Annexure P12) were communicated to the detenu. The detenu submitted the representation (Annexure P/3) to the appropriate authority. The order of detention (Annexure P/1) is impugned in this writ petition. ( 3 ) THE have respondents have filed the return in oppugnation stating that the order of detention was passed in conformity with law after due application of mind to the relevant material. ( 4 ) WE have heard Mr. A. H. Khan and Mr. Sanjay Sharma, learned Counsels for the petitioner and Mr. Sanjay Sharma, learned Counsels for the Petitioner and Mr. Girish Desai, learned Counsel for the respondents. ( 5 ) ANNEXURE P/2 grounds, contains the recital as extracted below-Even though the case is under trial in the Sessions Court of Mansaur (M. P. ). I am satisfied that in view of the facts stated above, it is necessary to detain Ramniwas under PITNDPS Act, 1988, with a view to prevent him from engaging in the possessing, concealment and illicit sale of Narcotic Drugs. The facts leading to the order detention are documented as under (i) Information, search and seizure of 13. 00 kgs. Opium on 19-11-1996, from the Bada. (ii) Inclupatory statements of the detenu dated 19-11-1996, and 20-11-1996, to the effect produce of licensed opium cultivation after tendering average yield to the Government and of sale to Marwaras of Jodhpur area. (iii) Rejection of bail by Sessions Court and High Court. (iv) Continued detention in judicial custody in case under NDPS Act, 1985, from 20-11-1996. From the aforesaid facts, the authority formed the opium and subjective satisfaction as is visible from paras 7 and 9 of the grounds. ( 6 ) THE case of detention is spun on recovery. Except this and alleged statements, there is no material to manifest illicit traffic as a trend for preventive detention. Solitary instance is not shown to have indicated such a trend. ( 6 ) THE case of detention is spun on recovery. Except this and alleged statements, there is no material to manifest illicit traffic as a trend for preventive detention. Solitary instance is not shown to have indicated such a trend. ( 7 ) THE Counsel for the respondents is unable to tear up the tenebrosity as to (i) on what material it was concluded that the detenu might secure bail despite fetters under Section 37, NDPS Act, (ii) on what basis it was assumed that he might indulge in illicit traffic while on bail, if at all granted, and (iii) why the order became necessary after lapse of about six months. Release on bail is not possible or permissible in law, without opportunity to Public Prosecutor (P. P.) to oppose and without satisfaction of the bail Court that the accused is not likely to commit any offence while on bail. ( 8 ) SUBJECTIVE satisfaction, as held in A. K. Shukla v. Supdt. Central Jail and Others should not be whimsical or imaginary. As ruled in Smt. Shalini Soni v. Union of India, there is implicit obligation on the authority to apply its mind to pertinent and proximate matters. Preventive detention, more so while in judicial custody, cannot be punitive in nature. Liberty, assumed to be likely without apparent basis, cannot suffer eclipse whimsically. ( 9 ) IN Babu Singh and Others v. The State of Uttar Pradesh, it is held that personal liberty is too precious a value of our constitutional system recognised under Article 21. R. G. Ingersoll in Progress has stated in classic terms that What light is to the eyes what air is to the lungs-what' love is to the hears, liberty is to the soul of man. The crucial power to negate it and to torture the soul of an individual is a great trust exercisable, not casually but cautiously, with lively concern for the costs to the individual and the community. The core question is whether satisfaction is sure and sustainable? ( 10 ) THE return, as is visible from para (v), is obscure and conjectural. The order of detention is equally vague as it says that with a view to preventing him from engaging in the possession, concealment and illicit sale of narcotic drugs. The core question is whether satisfaction is sure and sustainable? ( 10 ) THE return, as is visible from para (v), is obscure and conjectural. The order of detention is equally vague as it says that with a view to preventing him from engaging in the possession, concealment and illicit sale of narcotic drugs. There is no specificity as regards what was really sought to be prevented or interdicted, for one year from 17-5-1997, i. e. date of detention? ( 11 ) FRANKFURTER J. observed that He that takes the procedural sword shall perish with the sword. Procedural flaw is loculent. Satisfaction is not sure and thus, not sustainable. ( 12 ) REFERRING the case of Dharmendra ( AIR 1990 SC 196 ), which explained compelling reasons as in dicative of cogent material for satisfaction that (a) detenu was likely to be released in near future and (b) detenu was likely to indulge in offensive activities requiring his detention to prevent him from engaging in such activities, the Supreme Court held in Surya Prakash Sharma v. State of as under: When the above principles are applied to the facts of the instant case, there is no escape from the conclusion that the impugned order cannot be sustained. Though the grounds of detention indicate the detaining authoritys awareness of the fact that the detenu was in judicial custody at the time of making the order of detention, the detaining authority has not brought on record any cogent material nor furnished any cogent ground in support of the averment made in grounds of detention that if the aforesaid Surya Prakash Sharma is released on bail he may again indulge in serious offences causing threat to public order (emphasis supplied ). To put it differently, the satisfaction of the detaining authority that the detenu might indulge in serious offences causing threat to public order, solely on the basis of a solitary murder, cannot be said to be proper and justified. To put it differently, the satisfaction of the detaining authority that the detenu might indulge in serious offences causing threat to public order, solely on the basis of a solitary murder, cannot be said to be proper and justified. ' In Dilip v. State of M. P. , this Court took the view as under: In the instant case, if we accept the factual position that the detention order against the petitioner was passed on 7-9-1987, and that he was taken into custody on 25-10-1987, we have to insist on the detaining authority to satisfy us that on the date when the petitioner was apprehended there was necessity subsisting to detain him on that date and, indeed Iso, when he could not be apprehended earlier to be detained in terms of the detention order passed on 7-9-1987, so as to prevent him from indulging in prejudicial activities. ' The Apex Court in Rameshwar v. District Magistrate took, the view as under: It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary to prevent him from acting in a prejudicial manner, the authority has to be satisfied that if the person is not detained he could act in a prejudicial manner and that inevitably postulates freedom of action to the said person at the relevant time. If a person already in jail custody, how can it rationally be postulated that if he is not detained he would act in a prejudicial manner? At the point of time when an order of detention is going to be served on a person, it must be patent that the said person would act prejudicially if he is not detained and that it is a consideration which would be absent when the authority is dealing with a person already in detention. That satisfaction that it is necessary to detain a person for the purpose of preventing him from acting in a prejudicial manner is thus the basis of the order under Section 3 (1) (a) and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that he detention of the petitioner in circumstances of this case, is not justified by Section 3 (1) (a) and isoutside it purview. Therefore, we see no escape from the conclusion that he detention of the petitioner in circumstances of this case, is not justified by Section 3 (1) (a) and isoutside it purview. The District Magistrate, Burdwan who ordered the detention of the detenu acted outside his power conferred on him under Section 3 (1) (a) when he held that it was necessary to detain the petitioner is order to prevent him from acting in a prejudicial manner We, thus, find that there is no requisite and sufficient material to support subjective satisfaction. In our view, it vitiated. As such, the order of detention (Annexure 'p/1) infirm as it is resting on grounds (Annexure P/2') merits to be mortalised. ( 13 ) THERE is, thus, no escape from the conclusion that detention under Section 3 (1) of the Act is not justified and deserves to be demolished. The material may justify prosecution but does not justify preventive detention. The bail Court may be requested to apply rigour of Section 37 of the NDPS Act more seriously. However, in this regard, we leave the Trial Court and bail Court totally fetter-free. After all Section 3 (1) of the Act is to be invoked when it is necessary to make Tan order directing that such person be detained and as such specific material should be shown to order detention of person already in detention. We do not and such material or necessity. ( 14 ) IN the result, we hold that detention under the law providing preventive detention as noted above is inutile and futile and is illegal and illogical. As such, we quash the order of detention (Annexure P1 it) as impugned, as also the continued detention in pursuance thereof. Accordingly, the detenu shall be set at liberty, if and when he is not required to be kept in custody in connection with any other case or matter. Let a Writ of Habeas Corpus be issued in these terms. The petition is, thus, allowed with no order as to costs. Petition allowed. .