1. Heard Mr. Kushal Mor with Mr. Pulkit Bandodkar, learned counsel for the petitioner, and Mr. Anil Singh, learned Additional Solicitor General of India with Mr. Chodankar, learned Standing Counsel for the Central Government for respondent Nos. 1 to 3.

2. Rule. The rule is made returnable forthwith at the request and with the consent of the learned counsel for the parties.

3. This is a pre-execution challenge to the detention order bearing No. F-No.U-11011/18/2021 (PITNDPS) dated 21.09.2021 issued by the respondents under the provisions of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 ( the said Act) seeking to preventively detain the petitioner herein.

4. Mr. Mor conscious of the limitation in raising a pre-execution challenge has urged the following:

(a) That there is an inordinate and unexplained delay in issuing the impugned detention order. He submitted that the impugned detention order is based on incidents forming the subject matter of CR No.16/2020 and CR No.24/2020. The incidents concern the period between August and October 2020. The two cases were registered on 28.08.2020 and 15.10.2020. The impugned detention order was made after almost 9 to 10 months and there is no explanation for such inordinate delay. The live link between the alleged incidents and the necessity to make the impugned detention order is therefore snapped. Such detention order is void and ought not to be permitted to be executed. He relies on Rajinder Arora Vs Union of India and others AIR 2006 SC 1719 , Gaurav Kanak Jain Vs The State of Maharashtra and others MANU/MH/4538/2017, Md. Sahabuddin Vs District Magistrate, 24 Parganas and others (1975) 4 SCC 114 [LQ/SC/1990/146] , S. K. Abdul Munnaf Vs State of West Bengal (1975) 3 SCC 239 [LQ/SC/1974/120] in support of these grounds though in the compilation submitted by him, there was a reference to some other decisions as well;

(b) The sole allegation against the petitioner in the two cases referred to above is that he was a consumer of narcotic drugs. The material collected and available with the respondents also, at the highest alleges that the petitioner was a consumer, there is no material about the petitioner dealing with commercial quantities or otherwise being involved in the trade of narcotic drugs or psychotropic substances. In the above criminal cases, the petitioner was enlarged on bail by the Special Court on 06.11.2020 and 16.12.2020. The bail orders also ruled out the possibility of the petitioner being involved in the trade of narcotic or psychotropic substances. The third case i.e. CR. No.11/21 registered in Goa is patently false and in any case, irrelevant because the same was registered only on 25.09.2021 i.e. after the issue of impugned detention order on 21.09.2021. Based upon all this, Mr. Mor submits that the case of the petitioner can very well be dealt with by the ordinary legal provisions. There is no case to preventively detain the petitioner. The draconian provisions of the said Act cannot be resorted to deal with the situation that can be routinely dealt with under ordinary penal law. He, therefore, submits that this is a case whether the said Act and the powers of preventive detention have been used for a wrong purpose. He relies on Smt. Icchu Devi Choraria Vs Union of India and other AIR 1980 SC 1983 [LQ/SC/1980/374] , Rekha Vs State of T.N. TR. Sec. to Govt. and Anr AIR 2012 SC (Cri) 225 and Banka Sneha Sheela Vs State of Telangana in support of this ground;

(c) There is serious contradiction about whether or not the petitioner at any time breached the terms and conditions of bail orders dated 06.11.2020 and 16.12.2020. The petitioner has not breached any such terms and conditions. In any case, assuming that there is any breach, it was always open for the respondents to move the Special Court for cancellation of bail. In the case of other co-accused in CR Nos.16/2020 and 24/2020, the respondents have moved the Special Court for cancellation of bail. Mr. Mor submits that the petitioner has signed out for discriminatory treatment by invoking draconian provisions of preventive detention. He submits that this is also an indication that the impugned detention order has been made for the wrong purposes.

5. In addition to the aforesaid, Mr. Mor also submitted that it is possible that the statements under Section 67 of the NDPS Act, 1985 may have been taken into consideration for making the impugned detention order. He relied on Tofan Singh Vs State of Tamil Nadu (2021) 4 SCC 1 [LQ/SC/2020/754] and State by (NCB) Bengaluru Vs Pallulabid Ahmad Arimutta and Anr 2022 SCC OnLine SC 47 to submit such statements, being made to police officers could not have been taken into consideration. Mr. Mor also submitted that the petitioner is a foreign national and therefore, deserves some special consideration. He referred to the decisions in Mr. Kubic Dariusz Vs Union of India and others (1990) 1 SCC 568 [LQ/SC/1990/26] and S. K. Kondo Vs Deputy Secretary to Govt. of T.N. and another 1990 Cri. L.J. 946 for this purpose.

6. Mr. Mor relied on Additional Secretary to the Government of India and others Vs Alka Subhash Gadia and others 1990 (2) SCALE 1352 [LQ/SC/1990/819] , Deepak Bajaj Vs State of Maharashtra and Another AIR 2009 SC 628 [LQ/SC/2008/2282] and Subhash Popatlal Dave Vs Union of India and Another 2012 AIR SCW 4267 to submit that a pre-execution challenge is quite competent and further five grounds referred to in Alka Gadia (supra) are only illustrative and not exhaustive. Based upon all this, Mr. Mor submitted that the impugned detention order may be quashed and set aside.

7. Mr. Anil Singh learned Additional Solicitor General of India countered the above contentions by pointing out that no exceptional case was made out by the petitioner to challenge the impugned detention order at the pre-execution stage. He submitted that the grounds now urged by Mr. Mor were normally not the grounds available to challenge the detention order at the pre-execution stage. He submitted that the impugned detention order is essentially based on the subjective satisfaction of the detaining authority, which, in turn, is based on voluminous objective materials available on record. He submitted that the adequacy of such material is normally immune from judicial review unless it is demonstrated as irrelevant or extraneous. He, therefore, submitted that the challenge at the pre-execution stage may not be entertained even though, a petition may be maintainable to challenge the detention order even at the pre-execution stage.

8. Mr. Singh submitted that there is no delay and the 'live link' argument also does not hold good in the present case. He pointed out that the registration of FIRs ought not to be taken as starting point in such matters particularly because a lot of material was collected in the course of investigation pursuant to registration of such FIRs. He submits that even before WhatsApp messages demonstrating the complicity of the petitioner in commercially dealing with narcotic drugs could be placed on record, the petitioner was released on bail on 06.11.2020 in CR No. 16/2020. Thereafter, the charge sheet was filed in CR No. 16/2020 only on 05.03.2021 after the conclusion of investigations. Similarly, such WhatsApp messages were not available and in any case not considered when the bail was granted by the Special Court on 16.12.2020 in CR No.24/2020. He pointed out that the charge sheets were filed in CR No.16/2020 on 05.03.2021 and in CR No.24/2020 on 09.12.2020 after the investigations were complete in the two cases. The proposal for preventive detention was moved on 11.05.2021. Some time was spent because the detaining authority raised some queries and wished to be satisfied with the necessity for invoking the provisions of the said Act. Based on all this, he submits that this is not at all a case of any inordinate or unexplained delay. Mr. Singh also pointed out that most of the decisions relied upon by Mr. Mor consider the issue of delay in a post-execution challenge and therefore, such decisions are distinguishable.

9. Mr. Singh then adverted to the provisions of the said Act including his statements, objects, and reasons, and submitted that the entire object was to 'prevent' and not to 'punish'. He submits that therefore, 'suspicion' was not something irrelevant in the exercise of powers of preventive detention. He submitted that subjective satisfaction, in this case, was based on the material available on record and this is also extended to the need for preventive detention of the petitioner. He submitted that the apprehension entertained by the detaining authority was correct because even after issuance of the detention order, the petitioner was found to be involved in yet another case concerning narcotic drugs in Goa.

10. Mr. Singh also pointed out that the petitioner has failed to demonstrate how his case was identical to the case of other co-accused. He submitted that at this stage neither the petitioner nor this Court is aware of grounds of detention and the material in support of the same. Therefore, there is no case for inferring any discrimination or alleging that the impugned detention order was issued for wrong purposes. Mr. Singh offered to place on record the impugned detention order and the grounds in support thereof for the perusal of the Court only.

11. Further, Mr. Singh relied on Karnaram Lumbaji Choudhary Vs Union of India (2021 ) 0 ALLMR (Cri.) 2521, D. Aswin Rao Vs The State, Government of Tamilnadu (2021) 0 Supreme (Mad) 209, Akash Bharatbhai Parmar Vs State of Gujarat (2020) 0 Supreme (Guj) 828, State of Maharashtra and others Vs Bhaurao Punjabrao Gawande (2008) 3 SCC 613, [LQ/SC/2008/558] Ajay Bajaj Vs The State of Maharashtra (2011) 0 Supreme (Bom) 2, Aslam Mohd. Merchant Vs State of Maharashtra and others (1999) 0 Supreme (Bom) 328, Anandrao Vithoba Adsul Vs Enforcement Directorate, Government of India and another WPCR No.3418 of 2021 decided on 14.10.2021, Sheonandan Paswan Vs State of Bihar and others (1983) 1 SCC 438, [LQ/SC/1982/206] Mohammed Aun Javed Haider Sayed Vs Union of India Cri. Bail Appln. No.3041 of 2021 decided on 15.11.2021 , Subhash Popatlal Dave Vs Union of India and another (2014) 1 SCC 280, [LQ/SC/2013/768] in support of his submissions.

12. Based upon all this, Mr. Singh submitted that this petition may be dismissed.

13. Mr. Mor by way of rejoinder pointed out that most of the decisions relied upon by Mr. Singh were rendered before the decision in Subhash Popatlal Dave (supra) explaining that the grounds referred to in Alka Gadia (supra) were not exhaustive. He, therefore, submitted that most of the decisions relied upon by Mr. Singh do not represent the correct position in law. He once again pointed out that the return filed on behalf of the respondents, there was no explanation for the delay in issuing the detention order, and even the other grounds raised by the petitioner were not suitably answered. Mr. Mor, therefore, submitted that the rule in this petition may be made absolute.

14. The rival contentions now fall for our determination.

15. Since this is a pre-execution challenge to the detention order, the principles in Alka Gadia (supra) and Subhash Popatlal Dave (supra) will have to be born in mind. Both these decisions, in no uncertain terms, hold that while the powers of review of the Constitutional Courts may be untrammeled but being guided by self-imposed restrictions, it generally defers its power of review till the arrest of the proposed detenue and exercises its discretionary power at the pre-arrest stage only in exceptional cases and on limited grounds. No doubt, even though the grounds enumerated in para 30 of Alka Gadia (supra) may not be exhaustive, still it is not as if all the grounds normally available in a post-execution challenge are routinely available to a pre-execution challenge. Even in Deepak Bajaj (supra), it was held that entertaining a petition against a preventive detention order at the pre-execution stage should be an exception and not a general rule. The rival contentions raised before us in this matter will therefore have to be evaluated bearing in mind the limited scope of judicial review of a detention order at the pre-execution stage.

16. Mr. Mor proceeds on the basis that the impugned detention order is premised on incidents that led to the registration of CR No.16/2020 on 28.08.2020 and CR No.24/2020 on 15.10.2020 and no other materials were collected in the course of investigations into the said two matters or otherwise. Based on this premise, Mr. Mor argues that the impugned detention order made on 21.09.2021 is almost 9 to 11 months delayed. He further contends that in return filed, there is no explanation for this inordinate delay, and therefore, the live-link between alleged incidents and the necessity for making an order of preventive detention stands snapped.

17. Now though it is true that CR No.16/2020 was registered on 28.08.2020, the investigations therein were completed much later and the charge sheet was filed only on 05.03.2021. Mr. Singh pointed out that at the stage of grant of bail by the Special Court in CR No.16/2020 on 06.11.2020, the entire material collected in the course of the investigation, including in particular the WhatsApp messages which provide at least prima facie suggest that the petitioner was not merely a consumer of narcotic drugs or psychotropic substances but was also involved in dealing with narcotic drugs and psychotropic substances through certain well-known dealers involved in this nefarious trade. Mr. Singh, in this regard, referred to the petitioner's dealings with Sandeep Gupta, Sohil Kohli, Mohammed Kaizan, Simer Motiani, Sahil Mazhar Ali, Zinat Allabux, and some others in the context of CR No.16/2020. Mr. Singh also referred to interactions of the petitioner with one Uka Emeka and others in the context of CR No.24/2020. Mr. Singh pointed out that such material including WhatsApp messages was not available for consideration by the Special Court even at the time when the petitioner was released on bail on 16.12.2020 in CR No.24/2020.

18. Though Mr. Mor did contend that the material in the form of WhatsApp messages was considered by the Special Court at the time of passing the bail order dated 16.12.2020 in CR No.24/2020, we are inclined to agree with Mr. Singh that the WhatsApp messages referred by him were not the subject matter of consideration before the Special Court deciding bail in CR No.24/2020. In any case, this means that at least prima facie, it would not be appropriate, based on the limited material now placed on record before us, to hold that the delay is required to be computed by taking the starting point as August or October 2020. Mr. Singh's contention that the raids or even the registration of the FIRs cannot in every case be regarded as the starting point for assessing whether there is an inordinate delay in making the deletion order commends acceptance at least based on the limited material placed before us in this matter.

19. Based on the FIRs, the investigations proceeded and the same culminated in the filing of the charge-sheet in CR No.16/2020 only on 05/03/2021. Within a reasonable period thereafter that is on 11/05/2021, a proposal was moved by the sponsoring authority to the detaining authority proposing the preventive detention of the petitioner. Mr. Singh pointed out that some queries were raised by the detaining authority and only upon being fully satisfied, the impugned detention order was issued on 21/09/2021.

20. Although Mr. Singh did offer to place on record the impugned detention order and the grounds/material in support of the same for our perusal only, we did not think it appropriate to accept this offer because we did not wish to decide this matter based upon some material to which the petitioner was not being offered access. At this stage, therefore, it is premature to proceed on the basis that the impugned detention order is almost entirely based upon the incidents reflected in CR No.16/2020 or 24/2020 without examining the impugned detention order itself or the grounds/material in support thereof. All that we can say, at this stage, is that at least prima facie this is not some case of an inordinate and unexplained delay that could give rise to an inference about snapping the live link between the incidents considered by the detaining authority and the need to actually make a detention order.

21. Although CR No.11/2021 registered against the petitioner in Goa on 25/09/2021 will be mostly irrelevant because the same was made after the issue of the impugned detention order dated 21/09/2021, Mr. Singh's contention that the detaining authority's apprehension that the petitioner would involve himself with activities prohibited under the NDPS Act and the need to prevent him from doing so being not totally off the mark, cannot be fully discounted at least, at this stage. Based on all these, we do not think that the Petitioner has made out an exceptional case to interfere at the pre-execution stage, on the alleged ground of inordinate and unexplained delay and the consequent snapping of the live link.

22. In Rajinder Arora (supra), a raid was conducted on the detenue's residence on 26.05.2004 and the detenue was taken in custody. The DRI failed to even file a charge-sheet within the statutory period of 60 days and therefore the detenue was enlarged on bail on 28.07.2004. There were allegations made by the detenue about how he was tortured whilst in custody. The detenue also filed a criminal complaint on 18.02.2005. The impugned detention order was made only on 31.03.2005. It is in such gross facts that the Hon'ble Supreme Court held that there was no explanation whatsoever for the delay and the live link between the prejudicial activity and the purpose of detention was snapped. The facts in the present case are in no manner comparable with the facts in Rajinder Arora (supra).

23. Gaurav Jain (supra) was a case where the gold bars were seized from the detenue on 07.12.2005, but the detention order was made only on 21.11.2016, that is after almost a year. In this case, also there was a failure to file a charge-sheet within the stipulated period resulting in the detenue being enlarged on default bail on 20.02.2016. Again, the Court found that there was no explanation whatsoever for the delay and the true reason for the delay was nothing but bureaucratic red-tapism. Again, there is no material before us, at least at this stage, to infer such circumstances as obtained in Gaurav Jain (supra).

24. In Sughrabai Sadruddin (supra), the Court again found that the delay was inordinate and unexplained. Further, the Court found that even the grounds of detention had not been formulated by the Under Secretary but rather by an Officer below the rank of Under Secretary. There was no independent application of mind by the detaining authority. Upon cumulative consideration of such circumstances, the detention order was quashed.

25. In Jagan Nath Biswas (supra), Harnek Singh (supra) and SK. Abdul Munnaf (supra), the Hon'ble Supreme Court was considering post-execution challenges to the detention order. Besides, in these cases, not only were the detention orders passed on stale incidents, but further the detaining authorities despite seeking time to explain the delay had failed to either file returns or otherwise produce records to explain the inordinate delay. Such is not the situation in the present case, at least as the matter stands at the stage of pre-execution of the impugned detention order.

26. In fact, in SK. Abdul Munnaf (supra), the Hon'ble Supreme Court held that the past conduct or the antecedent history of a person can be appropriately taken into account in making a detention order. It is indeed largely from prior events showing tendencies or inclinations of a person that an inference can be drawn whether he is likely in the future to act in a manner prejudicial to the maintenance of public order or the maintenance of supplies and services essential to the community. But to justify such an inference, it is necessary to bear in mind that such past conduct or antecedent history should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of the person is necessary. The Court held that it would be both inexpedient and undesirable to lay down any inflexible test as to how far distant the past conduct or the antecedent history should be for reasonably and rationally justifying the conclusion that the person concerned if not detained may indulge in prejudicial activities.

27. In evaluating the petitioner's second challenge as formulated in paragraph 4(b), at the outset, at this stage, it would be too premature to consider Mr. Mor's submission that the FIR registered against the petitioner in Goa is patently false. Besides, the decisions in Smt. Icchu Devi (supra), Rekha (supra), and Banka Sneha Sheela (supra) were all cases of post-execution challenges to the detention order. In all these cases, the Court found that the cases of the detenues could as well be dealt with under the relevant provisions of the Indian Penal Code, Drugs and Cosmetics Act, etc. and there was no justification whatsoever to invoke the draconian provisions of preventive detention.

28. In Smt. Icchu Devi (supra) the detenue was ordered to be released because copies of the documents referred to and relied upon in the detention order were not supplied to the detenue within a reasonable period. There was an unreasonable delay in considering the petitioner's representation. No such ground arises, at least for the present, in this case.

29. In Rekha (supra), the only allegation against the detenue was that he was selling expired drugs (not narcotic drugs) after tampering with the labels. The detenue was ordered to be released because there was a breach of Article 22 of the Constitution and the Court also felt that ordinary law of the land was more than sufficient to deal with the situation. Again, at least at the pre-execution stage, we do not think that there is any material before us to quash the impugned detention order on the ground that the ordinary law is quite sufficient to deal with the case of the petitioner.

30. In Banka Sneha Sheela (supra), the Hon'ble Supreme Court, upon examining the five FIRs, upon which the detention order was based, found that what was alleged, pertained to the realm of "law and order". Further, the Court did not accept the detaining authority's contention that merely because the detenue was successful in obtaining anticipatory bail/bail orders, the resort could be had to preventive detention. Again such a position does not obtain in the present case, at least at this stage.

31. At this stage, it is too premature to hold the only allegation against the petitioner which concerns the consumption of narcotic drugs. In the return filed, there is reference inter alia to WhatsApp messages based on which some inference is possible about the involvement of the petitioner with certain notorious persons trading in drugs and psychotropic substances. Ultimately, the object of preventive detention is not to punish the detenue, but rather, to preempt the detenue from indulging in prohibited activities in the future.

32. In State of Madras V/s. V.G. Row AIR 1952 SC 196 [LQ/SC/1952/23] , the Hon'ble Supreme Court pointed out that preventive detention is largely precautionary and based on suspicion. In such matters, particularly where the challenge is at the pre-execution stage, the Court cannot substitute its opinion for that of the detaining authority because the power of detention is not a quasi-judicial power. Therefore, even based on the second challenge raised by Mr. Mor, we do not think that an exceptional case is made out to interfere with the impugned detention order at the pre-execution stage.

33. The third challenge based on discrimination will also have to be rejected in the absence of any foundation led by the petitioner demonstrating that his case was no different from that of the other co-accused persons. Besides, merely because in case of some of the co-accused persons the authorities may have applied for cancellation of bail, that by itself is not sufficient to conclude, particularly at the pre-execution stage, when we do not have the benefit of the impugned detention order or the grounds and material in support thereof, that there is some discrimination involved or that the powers of preventive detention are being used for wrong purposes. At least at the pre-execution stage, we do not think that any interference is warranted with the impugned detention order based on this third challenge formulated in paragraph 4(c) of this judgment and order.

34. The issue of statements under Section 67 of the NDPS Act and whether the same can form the basis of a detention order can perhaps be considered once the petitioner and the Court come to know the grounds of detention. The impact of such statements, if any, cannot be evaluated at this stage. Besides, the said Act makes a specific provision as regards severability of the grounds of detention. This means that merely because some of the grounds on which the detention order is based may be infirm, the detention order may not have to be quashed if some other grounds sustain it. All that we say at this stage is that, based upon this ground at least, at the pre-execution stage, we do not think that some exceptional case has been made out to depart from the general rule.

35. Based upon the decisions relied upon by Mr. Mor, we do not think that any special considerations favoring the petitioner arise, simply because he happens to be a foreign national. Even the decisions do not say so. Even otherwise, this is hardly a ground to interfere with a detention order at the pre-execution stage.

36. Upon an overall consideration of the challenges, we do not think that the petitioner has succeeded in making out an exceptional case requiring our interference at the pre-execution stage. As pointed out earlier, even Alka Gadia (supra), Deepak Bajaj (supra), and Subhash Popatlal Dave (supra), in unison hold that the discretionary power of judicial review is to be exercised at the pre-arrest stage only in exceptional cases and on limited grounds. Even Deepak Bajaj (supra) goes on to hold that entertaining a petition against a preventive detention order at the pre-execution stage should be an exception and not a general rule. Taking into account the limited scope of judicial review at the pre-execution stage, we do not think the petitioner, in this case, has succeeded in making out an exceptional case to warrant any deviation from the general rule.

37. For all the aforesaid reasons, we dismiss this petition and vacate the interim relief granted by us earlier. However, at the same time, we make it clear that the dismissal of this petition will not preclude the petitioner from challenging the impugned detention order once the same is executed against him. Such a challenge, if raised, will have to be considered on its own merits without being influenced by any observations made by us in this judgment and order. This is because the observations in this judgment and order are in the context of limited judicial review available where the detention order is challenged at the pre-execution stage.

38. The rule is accordingly discharged. Interim relief is vacated. There shall be no order for costs.

39. At this stage, Mr. Mor, the learned Counsel for the petitioner seeks for extension of the interim relief that has been operating till date by eight weeks.

40. According to us, the interim relief can be extended by three weeks from today. Accordingly, the interim relief is extended by three weeks from today since Mr. Mor states that the petitioner would like to challenge this judgment and order before the Hon'ble Supreme Court.