JUDGMENT 1. - This Habeas Corpus Petition under Article 226 of the Constitution of India has been filed by the wife of the detenue Gopal S/o Kanhaiya Lal and to quash Preventive detention order dated 17.3 2003 passed by the Joint Secretary to the Government of India under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 5 (PITNDPS). In pursuance of the aforesaid order, the detenue was detained by executing the order on 21st April, 2003 i.e. to say after more than a month from the passing of the order dated 17.3.2003. The order was communicated to the detenue alongwith grounds to which were considered by the Detaining Authority for making the order under the Act of 1988. It was stated in the petition that the detenue had made a representation against his detention. He was produced personally before the Advisory Board at New Delhi where he raised all the grounds raised in the petition. However, his 15 representation was rejected vide communication dated 10.7.2003. This led the filing of this writ petition. Challenging the detention to be in violation of Article 21, fourfold contentions have been raised by the learned counsel for the petitioner: (i) Firstly, while the detention order was passed, it has considered the confessional statement made by the detenue in the matter pending trial in the Special Court constituted under the N.D.PS. Act, Chittorgarh, but has not taken into consideration the retraction made by the detenue before the trial Judge; (ii) Secondly, the Detaining Authority has taken into consideration wholly irrelevant material. Attention in particular was invited to the reference made by the Detaining Authority in his Order to the copy of the Judgment dated 26.3.1997 passed by the Judicial Magistrate, First Class, Manasa, Neemuch (M.P) in the case in which the father of the detenue was tried under Section 9(A) of the Opium Act in which case 22.800 Kgs. Contraband opium was allegedly seized from his father on 1.7.1974 by Central Bureau of Narcotics, Neemuch (M.P.). in the said case, the father of detenue Gopal was acgitted albeit as per Detaining Authority on technical grounds. Apart from the fact that incident of 1974 is too remote in past and stale to be of any relevance. Contraband opium was allegedly seized from his father on 1.7.1974 by Central Bureau of Narcotics, Neemuch (M.P.). in the said case, the father of detenue Gopal was acgitted albeit as per Detaining Authority on technical grounds. Apart from the fact that incident of 1974 is too remote in past and stale to be of any relevance. even it were related to detenue, it concerned the father of the detenue and it has no relevance to the activity of detenue Gopal. The consideration of wholly irrelevant material vitiates the satisfaction of detaining authority. (iii) Thirdly, the representation submitted by the detenue against the impugned detention order was not considered and decided within reasonable time. (iv) Lastly, it was urged that the detention order has been founded on stray and stale instances having no nexus and relevance bearing on the satisfaction to be reached in presenti to detain the detenue for preventing him from any continued activities of indulging in drugs trafficking. The chain of events as appeared from the grounds attached with the Detention Order and which led to making of the impugned order can be noticed thus: (1) The detenue alongwith co-passenger Smt. Sita Bai was apprehended near Medikhera Railway Crossing on Chittor-Bhilwara Road, Chittorgarh at about 4:00 PM on 30.7.2002 by Inspector of Preventive Party under the N.D.PS. Act while he was travelling in a private jeep coming from Chittorgarh. In the said proceedings 930 Grams of heroine was seized from the person of Smt. Sita Bai concealed in her private parts, packets tied in a Langot. The detenue was not found in possession of any contraband material. However, confessional statements were alleged to have been made by Smt. Sita Bai and detenue Gopal on 30.7.2002 and 31.7.2002. They were to the effect that Smt. Sita Bai was indulging in drugs trafficking for last 4 to 5 months and she met detenue Gopal three months ago. She was hired by Gopal to carry seized heroine to Jaipur. The seized heroine was tied by detenue Gopal on the private parts of Smt. Sita Bai. The detenue was also travelling with her when the heroine was seized from her private parts. The detenue Gopal in his statement dated 30th July, 2002 is alleged to have admitted and corroborated the statement made by co-passenger Smt. Sita Bai. The seized heroine was tied by detenue Gopal on the private parts of Smt. Sita Bai. The detenue was also travelling with her when the heroine was seized from her private parts. The detenue Gopal in his statement dated 30th July, 2002 is alleged to have admitted and corroborated the statement made by co-passenger Smt. Sita Bai. In addition to this he is also alleged to have stated on 1.8.2002 that he was indulging in the drug trafficking from last 3 to 4 years. (2) In pursuance of the aforesaid seizure Smt. Sita Bai as well as detenue Gopal were arrested on the spot. Detenue Gopal remained in the custody until detenue Gopal was released on bail by the order of this Court on 24th October, 2002. Earlier Bail application before Special Court, NDPS Cases was rejected on 28.9.2002. (3) During the course of investigation of aforesaid incident, the house of detenue Gopal was searched but no narcotic drugs were recovered from his house. But a certified copy of the judgment dated 18.10.2000 of Special Court, NDPS Cases, Bhilwara and (4) The photostat copy of judgment dated 26.3.1977 of Judicial Magistrate, First Class, Manasa, Neemuch (M.P.) were recovered. The judgment dated 26.3.1997 as referred to above was a judgment of acquittal of detenu's father for the offence under Section 9 of Opium Act in relation to an incident which took place on 1.7.1974. (4) The photocopy of judgment dated 18.10.2000 referred to a case in which the detenue Gopai was apprehended under Section 8/21 of 5 the NDPS Act of 1988 by the Police of Bhilwara and he was found to be in possession of 500 Grams of heroine at Roadways Bus Stand Bhilwara on 31.3.1999. He was acquitted of the charge by the judgment dated 18.10.2000. 2. He was acquitted of the charge by the judgment dated 18.10.2000. 2. Thus, the material that has gone into consideration in reaching the 10 satisfaction of the Detaining Authority that both Smt. Sita Bai and Gopal were indulging in illicit trafficking of narcotic drugs, were (i) the incident dated 30.7.2002 in which 930 Grams of heroine was recovered from the person of Smt. Sita Bai; (ii) the confessional statement made on 30.7.2002, 31.7.2002 and on 01.8.2002 by Smt. Sita Bai; (iii) and the confessional statement made 15 by Gopal dated 30.7.2002, 31.7.2002 and 01.8.2002; (iv) the rejection of bail application on 28.8.2002 by the Special Judge, NDPS Cases, Bhilwara; (v) the order of High Court releasing detenue Gopal on bail on 24.10.2002; (vi) the Judgment dated 18.10.2000 of Special Judge, NDPS Cases, Bhilwara acquitting detenue Gopal of charge under Section 8/21 of NDPS Act, 1988 20 relating to an incident dated 31.3.1999 and; (vii) lastly the judgment dated 26.3.1977 acquitting the father of the detenue Gopal of charges under Section 9 of Opium Act in relation to an incident which has occurred in 1974. The age of the detenue has been stated to be about 33 years in the impugned order dated 17.3.2003. From the reply filed to the petition it is apparent that primary contention for sustaining the order of detention is the confessional statement made by detenue Gopal during the course of commencement of the alleged recovery of 930 Grams of heroine from the private parts of the body of Smt. Sita Bal, alleged to have been tied 30 by the detenue Gopal. But the retraction of statement has not been taken into consideration by the detaining authority. From the reply of the respondents it is not in dispute that the detaining authority or the sponsoring authority had not considered any retraction of confession. However, it is stated that sponsoring authority and detaining authoritywere not aware of any retraction made by the detenue and Smt. Sita Bai till after receipt of this writ petition. From the reply of the respondents it is not in dispute that the detaining authority or the sponsoring authority had not considered any retraction of confession. However, it is stated that sponsoring authority and detaining authoritywere not aware of any retraction made by the detenue and Smt. Sita Bai till after receipt of this writ petition. On receipt of writ when the file of the pending case with the Court of Special Judge, NDPS Cases, Bhilwara was inspected, it was found that a letter addressed to Court dated 24.9.2002 was on the record, 40 the same does not find mention in the record of proceedings of the Special Court under NDPS, hence nothing has come to the notice of any of the authorities. The reliance on two decisions of acquittal has been sought to be explained on the ground that it shows the involvement of Gopal, the 45 detenue, and his father in the drug trafficking as the family business. Delay of one month in executing the order of detention has been sought to be explained thus. The detention order could not be served on Gopal earlier than 21st April, 2003 because up to 10.4.2003 the time was taken in the transmission of the order from the detaining authority to the serving authority; in translating the document to be given to the detenue. Thereafter, from 10.4.2003 to 20.4.2003 time was taken for making inquiries by the Inquiry Officer in gathering Intelligence regarding whereabouts of detenue Gopal to ensure successful execution of detention order. The representation made by the detenue Gopal addressed to the Chairman, Advisory Board, PITNDPS, Delhi High Court was received on 22.5.2003. The earlier Detaining Authority had relinquished the' charge on 14.5.2003 consequent on his transfer to other Department. The new detaining authority was notified only on 10.6.2003 and the said representation was submitted to the detaining authority on 10.6.2003 for seeking his comments from the Sponsoring Authority. The representation alongwith comments thereon was proceeded and submitted to the Detaining Authority and the Secretary Revenue separately on 19.6.2003. The detaining authority rejected the representation on 25.6.2003. Though nothing has been stated what happened thereafter in reply, the record of proceedings show that Revenue Secretary rejected the same on 25.6.2003. It was submitted that there was no delay in considering the representation of the detenue. The detaining authority rejected the representation on 25.6.2003. Though nothing has been stated what happened thereafter in reply, the record of proceedings show that Revenue Secretary rejected the same on 25.6.2003. It was submitted that there was no delay in considering the representation of the detenue. After receipt of Report of Advisory Board, advising that there was sufficient cause for detention of detenue, the Central Govt. confirmed the order of detention vide communication dated 10.7.2003. Coming to the contention of the learned counsel for the petitioner that the order of detention clearly discloses that the grounds which led the Detaining Authority to order detention were wholly founded on irrelevant material and irrelevant facts and the acquittal of petitioner's father Kanhaiyalal in connection with seizure of opium from his possession in the year 1974 and the fact that the father of the petitioner was acquitted vide judgment dated 26.3.1977 have been taken into consideration. The said incident neither relates to the petitioner nor by any amount of reasoning could it be related to the drug trafficking as family business of the detenue. The age of the petitioner at the time of detention on 21.4.2003 according to the impugned order of detention was 33 years which would make this clear that the petitioner was barely about 6 to 7 years of age when the father of the petitioner was tried. Therefore, the next incident which has been noticed by detaining authority is of 25 years later in 1999 when the petitioner was tried under NDPS Act but in which he was acquitted. There is no material on which any satisfaction about continuity of drug trafficking as family business could be reached. There is no material about any continued activity of father in drug trafficking to link in any manner the incident of 1999 or for that matter of 2003 with the incident that took place in 1974. Obviously, the judgment dated 26.3.1977 and facts mentioned therein were wholly irrelevant material which has gone into consideration of satisfaction of detaining authority. There is no material about any continued activity of father in drug trafficking to link in any manner the incident of 1999 or for that matter of 2003 with the incident that took place in 1974. Obviously, the judgment dated 26.3.1977 and facts mentioned therein were wholly irrelevant material which has gone into consideration of satisfaction of detaining authority. It cannot be denied and disputed that the judgment dated 26.3.1977 acquitting the father of the detenue of the charges under Section 9 of the Opium Act in connection with the seizure case of 1974 has seriously gone into consideration by the detaining authority as is apparent from the detailed reference to the facts in the detention order as well as in reply to the writ petition in which it has clearly been stated by the respondents that incident in which detenue Gopal has been tried and acquitted and the incident resulting in acquittal of his father Kanhaiyalal have been considered as live link to reach satisfaction that the primary business of the family is drug trafficking. Apparently, from the material on the record this consideration of the judgment dated 26.3.1977 cannot be considered in any way relevant to detention of the petitioner in 2003. The age of the detenue as mentioned in the detention order is 33 years in 2003 and the date of acquittal of the father of detenue in an incident of 1974 is 1977 i.e. to 5 say at the time of incident in which the father of the detenue was involved, the petitioner was barely of 4 to 5 years of age and at the time of acquittal the detenue was about 6 to 7 years of age. Apparently, no man of ordinary prudence can relate the single incident of 1974, that too which resulted in the acquittal of accused to an incident, in 1999. This can have no relevance with the incident of 1999 or 2002, without any connectivity of continued activities during the gap of more than 25 years by father and son. No other incident in the life of father except the one in which he was acquitted had been noticed. In such circumstances, the activity of the father could not be considered as continuing activities to link with the activities of the detenue in any way. No other incident in the life of father except the one in which he was acquitted had been noticed. In such circumstances, the activity of the father could not be considered as continuing activities to link with the activities of the detenue in any way. A look at the incident of 1974 when the detenue was a child of about 4 to 5 years of age and cannot be considered by anyone to be involved in the activities of his father. Nor the solitary incident of 1974 resulting in acquittal of accused be considered 20 relevant to draw inference of drug trafficking as a family business. Apparently, drawing inference about the illicit drug trafficking to be a family business is founded on no material or on material which had no nexus to link the detenue with the incident of 1974 to draw an inference of continued activity on the part of the detenue alongwith his father earlier and now alone. The first incident in which detenue is alleged to have involved was in 1999 i.e. after 25 years of the incident in which his father was allegedly involved. The satisfaction that the detenue has a continues family business in drug trafficking from the time of his father in his family obviously makes it a satisfaction based on no material. Coming to the next contention raised by the learned counsel for the petitioner that the particular piece of information namely, retraction of confessions made on 30.7.2003 and 31.7.2003 was not placed before the Detaining Authority and he had not taken into consideration there traction made by the detenue denying having ever made confessional statements attributed to him. Non consideration of this relevant portion vitiates the detention order. 3. The respondents have stated in their reply that the sponsoring authority did not have any knowledge of such retraction nor could he have the knowledge of the alleged retraction when he has sponsored the detention of Gopal under the Prevention of Illicit Trafficking in Narcotic Drugs Act, 1988 (PITNDPS Act), it was stated by the sponsoring authority in his additional affidavit that the detenue Gopal was produced in the Court of Special Judge, NDPS Cases, Chittorgarh on 2.8.2002, 14.8.2002, 28.8.2002, 11.9.2002 and 45 25.9.2002. It was also stated in the additional affidavit that since there was no retraction in the Court and as such it was informed that no retraction has been made. It was also stated in the additional affidavit that since there was no retraction in the Court and as such it was informed that no retraction has been made. But it was further stated in the additional affidavit that the file of the case was again inspected on 15.11.2003 and it was found that there was one letter from detenue Gopal. The said letter was of 21st of September, so 2002 which was received by post in the Court of Special Judge, NDPS Cases. Chittorgarh and it was not known to the Public Prosecutor and Sponsors because no action was taken on the said communication by the Court. It is also contended that the detenue Gopal was represented before the Advisory Board by his counsel but there also, the detenue has not retractea from his earlier statement. This clearly shows that it is all after-thought. The detenue has been appearing in the court from time to time on different dates. It is also admitted position by the respondents that the detenue did not admit his guilt in consonance with the alleged confession. In the bail application moved before the High Court, which was also in consideration and the material available with the sponsoring authority as well to as the detaining authority, a clear statement was made by the petitioner that he has wrongly been implicated in this case and there is no iota of evidence under Section 8/21, 8/29 of NDPS Act and except the concocted story made by the respondents. Therefore, the petitioner is entitled to be released on bail. 4. In the order passed by the High Court on the said application it was clearly recorded by the Court on the argument on behalf of the counsel for the accused that the accused is in Jail since his arrest from the time of seizure of the contraband and whatever statement has been given is not voluntary statement to be exact. The Court said thus:VERNAUCULLLAR MATTER OMITTED 5. It has further been stated by the Court in its prima facie opinion that the detenue has been made accused on the basis of statements made by him when he was in the custody of Police i.e. to say while considering the bail application, the Court said that the statement given by the accused has not been taken into consideration as alleged statement has not been given voluntarily. 6. 6. The casualness with which the facts have been stated by the respondents before this Court also shows the casualness with which the sponsoring authority who has acted in placing the relevant material before the detaining authority so much so in the application dated 17.12.2003, it has been stated as noticed by us above, it is pertinent to note here that the detenue was represented before the Advisory Board by his counsel but there also he did not retracted from his earlier statement and all it is after-thought." From the perusal of the Report of the Advisory Board it is apparent that this was one of the principal contention raised by the detenue in his representation. The Advisory Board in its Report has noticed the contention that the order of detention is vitiated on the ground of the retraction statement dated 24.9.2002 by the detenue was not placed before the detaining authority. It is also apparent from the record that sponsoring authority was directed by the detaining authority that whether the accused has retracted from his earlier statement on which he has replied in negative. Apparently this report was made without perusing the record of the Court of which, now on their own admission, the letter dated 24.9.2002 is a part. It is true that the mention of that retraction letter has not been found in the order sheets but the fact remains that in his application for bail, the detenue has stated that the story against him is a concocted story made by the authorities before the Court. It has been stated that the statement of the detenue has been recorded while he was in custody and that statement is not given voluntarily. This argument was also raised before the Advisory Board. Yet, in the additional affidavit for taking into consideration additional facts. the respondents nave urged that the petitioner cannot be permitted to raise this argument because it was not made before the Advisory Board. Apparently, the retraction from his confession or 5 defence of the detenue is pending trial was not considered by the authorities, in spite of specific reference having been made thereof. Consideration of irrelevant material and non Consideration of relevant material namely, the judgment dated 26.4.1977 in case of his father and retraction letter dated 24.9.2003 from the confession made by the detenue during custody vitiates the detention order. Consideration of irrelevant material and non Consideration of relevant material namely, the judgment dated 26.4.1977 in case of his father and retraction letter dated 24.9.2003 from the confession made by the detenue during custody vitiates the detention order. Moreover, it is not the case of the respondents that the petitioner was absconding and his whereabouts were not known. After releasing on bail, he has been regularly appearing in trial Court. Therefore, to say that time was taken in making whereabouts and enquiry about his address is also founded on no material and shows that there was no such urgency felt by the authorities even after making order dated 17.3.2003 to see its execution by putting the petitioner under detention. This also militates against real satisfaction about making order of preventive detention. It appears to 20 be made to nullify the release on bail. Consequently, the impugned order cannot be sustained as it does not meet the basic safeguards required to be maintained as provided under Article 22(5) of the Constitution of India. Accordingly, this petition is allowed, the detention order dated 25 17.3.2003 is quashed and it is directed that the detenue Gopal S/o Kanhaiyalal be released forthwith. Writ Petition Allowed-Detention Quashed. *******