1995(1) ALL MR 491
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ASHOK AGARWAL AND A.S.V. MOORTHY, JJ.
Shri Omprakash Parshuram Rihal Vs. Shri C.D.Singh And Others
Criminal Writ Petition No.12 of 1995
18th July, 1995
Petitioner Counsel: Shri U.N.TRIPATHI with Shri S.R.PASBOLA and NEETIN H.SEJPAL
Respondent Counsel: Shri S.G. PAGE, Shri R.M. AGRAWAL
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (1988) S.3(1) - Detention under - Detenu already in custody - Detenu a member of well knit gang engaged in manufacture and sale of Mandrax Tablets - Detenu if released on bail likely to indulge in similar prejudicial activities - Held order of detention was justified and the same could not be assailed on the ground that subjective satisfaction is not recorded in the grounds of detention itself. Constitution of India, Art 22(5)
An order of detention cannot be successfully assailed merely because the subjective satisfaction is not to be found in the grounds of detention. The same can be justified in an affidavit to be filed justifying the grounds of detention when the same are challenged. The same can also be justified by production of the file before the detaining authority which had been done in the present case. There is sufficient material for justifying the subjective satisfaction arrived at by the detaining authority that the order of detention is required to be passed despite the fact that the petitioner is in detention as it was likely that the petitioner may once again apply for bail or approach higher courts for the purpose of bail. In that event it is likely that he will be granted bail, in which case, having regard to the activities of the petitioner, as reflected in the grounds of detention, it is likely that he may re-indulge in the prejudicial activities and hence it is necessary to pass an order of detention.
AIR 1993 SC 810, AIR 1982 SC 1539, AIR 1982 SC 1543, AIR 1982 SC 1548, (1988)2 SCC 57 Relied on. [Para 13]
ASHOK AGARWAL, J. : By the present Habeas Corpus petition, the petitioner seeks to impugn the order of detention dated 24th November, 1994 bearing No.SPL. 3(A)/PND-0194/77 passed by Shri C.D.Singh, Secretary to the Government of Maharashtra (Preventive Detention) Home Department, in his capacity as an Officer specially empowered. The order of detention is issued under sub-section (1) of section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (46 of 1988). The order of detention and the consequent detention of the petitioner is impugned in the present petition.
2. The incident which has led to the issuance of the aforesaid order of detention, occurred on or about 6th and 9th June 1994. The Officers of the Directorate of Revenue Intelligence on information that some packages had arrived from New Delhi on 6th June, 1994 at Godown No.6, 1st Plank Road, Near Economic Transport, Chinchbunder, Dongri, Bombay rushed to the said Godown and enquired with the person available there whether he had received any packages from New Delhi that morning which were weighing around 500 kgs to which Jitendra Kamble, godown keeper, pointed out five wooden boxes wrapped in gunny cloth which were lying near the counter having marking BMY 165290/5 on the gunny cloth. The officers
marked the wooden boxes as Sr.No.1 to 5. The boxes were then opened in the presence of Panchas and each box was found to contain two HDPE bags. Each HDPE bag was found to contain 50 polythene packets having grey brown tablets with markings 'M' on one side and "Swastik" on the other side. The officers took samples from each HDPE bag and tested the same with field testing kit which answered positive for the presence of Methaqulone which is banned under the provisions of NDPS Act, 1985 The officers weighed the polythene bags. Each Polythene bag weighed about 750 grams that is, each HDPE bag contained 37.500 kgs. tablets (approx.). In total there were 375 kgs. (approx.) of Methaqualone packed in ten HDPE bags. The officers took out 150 tablets weighing 100 grams (approx.) as 10 samples in duplicate from the said HDPE bags. They seized all the Mandrax tablets valued at Rs. 37,49,000/- after taking out sample tablets. The sample tablets were certified by the Deputy Chief Chemist to contain Methaqualone.
3. Since the address of consignee of the said consignment was found to be fictitious the officers kept a watch near the transport office from 6th June,1994 onwards to apprehend the person who would come to clear the consignment. On 9th June, 1994 two persons namely Rajanikant Chunilal Shah and Jaswant Babulal Doshi visited the godown to clear the aforesaid consignment. The statements of the said Rajanikant Chunilal Shah and Jaswant Babulal Doshi were recorded on 9th June, 1994. In his statement Rajanikant Chunilal Shah interalia stated that he knows the petitioner since last 8 to 9 years as the petitioner was supplying hardware to M/s.Rihal Engineers; that yesterday i.e. on 8th June, 1994 the petitioner phoned his house at about 10.00 a.m. and informed him that his i.e. petitioner's goods were to be received from a transport company in Bombay and that he had no time that day as he had to go to Bombay early. The petitioner asked him to receive it on the next day i.e. on 9th June, 1994. The petitioner gave him the lorry receipt and money to take delivery of the goods and a chit of the address where the goods were to be delivered after taking delivery from the transport godown. The petitioner gave him Rs.1020/- for receiving the goods from the transport godown. Rajnikant with his friend J.B.Doshi fixed a hand-cart for taking delivery of the goods from the transport godown. After taking the delivery of the abovesaid consignment the hand-cart owner was to deliver the same at Meera Transport Company. He received gate pass No.8543 dated 9th June,1994 after paying the freight charges at the transport Company. He also received Octroi form 'B' for Rs.172/- and invoice No.93 dated 30th May,1994 of M/s. Golden Trading Company, Delhi-6. All these papers were in the name of the Mathuradas and Company. Enquiries revealed that M/s. Mathuradas & Co. Bombay was a fictitious firm.
4. On 10th June, 1994, the petitioner's statement was recorded under section 67 of the NDPS Act, 1985 in which he interalia stated that he came in contact with one Sheriff Khan in 1990-1991 when he was running a small workshop in his compound for a period of six months. The petitioner was getting a sum of Rs.5000/- from Shariff Khan as montly compensation and that Shariff Khan was manufacturing some chemical very secretly in the said workshop. Shariff Khan alongwith his brothers Shah-e-Alam Khan and Matin Khan visited the petitioner on 6th June,1994 and gave the petitioner a consignment note covering the five packages for taking delivery from the transport godown. Since the petitioner was busy he asked Rajnikant Shah to collect the said consignment from the transport godown covered under lorry receipt (consignment Note) No.165290 dated 30-5-1994 on his behalf. The aforesaid lorry receipt covering the dispatch of five packages containing 375 kgs. of Mandrax tablets were given to the petitioner by Mohamed Shariff Khan knowing that the five packages were containing Mandrax tablets. Further statements of accused involving in the offence were recorded and several premises were searched. As far as the petitioner is concerned he was arrested on 10th June, 1994 and was produced before the holiday Magistrate, Esplanade, Bombay on 11th June, 1994 who remanded him to judicial custody till 24th June,1994. On 24th June,1994, the case was committed before the Special Court, Bombay, who remanded the petitioner to judicial custody till 7th July, 1994 and the same was extended from time to time. On 16th July,1994 the petitioner filed an application for bail and the same came to be rejected by a judgment and order passed on 10th October,1994. The charge-sheet has been filed in the Special NDPS Court.
" I am satisfied that it is necessary to detain you under the provisions of the PITNDPS Act, 1988 to prevent you from engaging in illicit traffic in psychotropic substances."
6. Based on the aforesaid subjective satisfaction, the detaining authority has issued the impugned order of detention. The said order and the consequent detention of the petitioner is impugned in the present petition.
7. Shri Tripathi the learned Advocate appearing on behalf of the petitioner has urged three grounds in order to assail the order of detention. He submitted that it is specifically mentioned in the grounds of detention that the bail application preferred by the petitioner on 16th July,1994 was rejected on 10th October, 1994. It is obvious therefore that the detention order has been issued and served upon the petitioner while he was in judicial custody. In the list of documents and the grounds of detention supplied to the petitioner, there is no material which would indicate that there were compelling reasons for justifying the preventive detention of the petitioner, despite the fact that the bail application of the petitioner was rejected and that the petitioner was already under detention. According to Shri Tripathi, it is for the detaining authority to explain what was the compelling necessity to issue an order of preventive detention against the petitioner. If the subjective satisfaction of the detaining authority is without awareness of any compelling necessity, the detention order would be bad in law and will stand vitiated. According to Shri Tripathi the grounds of detention must reflect the awareness of the detaining authority that there is liklihood of the release of the petitioner and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him in engaging in illicit traffic in narcotic drugs and psychotropic substances.
".......I say that when I issued the detention order the detenu was in custody. I was aware of this fact and in the grounds of detention I have shown my awareness. The gravity of the prejudicial activity in which the detenu is involved, the possibility of the detenu being released on bail and the further possibility of his misusing prejudicial activities in future, were the pressing and compelling reasons which prompted me to issue the impugned detention order, though the detenu was in custody. ...........................I was satisfied that it was necessary to issue the Detention Order."
" I say that though the petitioner was in custody and though he had not preferred an application for bail in the High Court, the possibility of making such an application in the future cannot be ruled out. It is on this reasonable apprehension that the detenu would be released on bail that the impugned Detention Order was issued by me. ....."
9. In support of his contention that an order of detention can be validly passed against a person in custody only after the detaining authority shows that he was aware of the facts that the detenu was already in detention and there was compelling reasons justifying such detention despite the fact that the detenu was already in detention reliance is placed on the case of Dharmendra Suganchand Chelawat and Anr. V/s. Union of India and others reported in (1990)I Supreme Court Cases 746. After referring to several earlier decisions rendered by it, the Apex Court has observed thus:
" The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities".
Placing reliance on the aforesaid decision, Shri Tripathi has contended that the awareness of the detaining authority of the fact that the detenu is already in detention and there were compelling reasons justifying the said detention despite the fact that the detenu is already in detention must be reflected in the grounds of detention and it will not be open to the detaining authority thereafter to show his awareness by filing an affidavit. Emphasis is laid " it is necessary that the grounds of detention must show ..... "
10. Shri Tripathi next relied upon the case of Rivadeneyta Ricardo Agustin V/s. Government of the National Capital Territory of Delhi and others reported in 1994 Supp (1) Supreme Court Cases 597. In para 6 of the judgment the Supreme Court has raised the question for its consideration in the following terms:-
" The question for consideration is whether there was material before the authority establishing that the detenu is likely to be released or that there was imminent possibility of his being released and whether he was satisfied about the said aspects?
In paragraph 7 the Supreme Court has referred to the statement appearing in paragraph 9 of the Grounds of Detention as:
" The Administrator of the National Capital Territory of Delhi is aware that you are in judicial custody and had not moved any bail application in the Court (s) after June 9, 1992 but nothing prevents you from moving bail applications and possibility of your release cannot be ruled out in the near future. Keeping in view your modus operandi to smuggle gold into India and frequent visits to India, the Administrator of the National Capital Territory of Delhi is satisfied that unless prevented you will continue to engage yourself in prejudicial activities once you are released."
The Supreme Court on the aforesaid facts has proceeded to observe in paragraph 8 as under:-
" The above statement merely speaks of a "possibility" of the detenu's release in case he moves a bail petition. It neither says that such release was likely or that it was imminent. Evidently, the statement falls short of the requirement enunciated by this Court in Kamarunnissa. Even in the return filed in this petition, the authority has not stated (in response to Ground 'B' of the writ petition) that there was material before him upon which he was satisfied that the petitioner was likely to be released or that such release was imminent."
In paragraph 10 of the judgment, the Supreme Court has observed:
" The learned Additional Solicitor-General placed before us the relevant file but he could not bring to our notice any material indicating that the release of the petitioner was likely or that there was a real possibility of his being released and or that the authority was satisfied about the said aspect."
11. Based on the aforesaid decision, it is firstly contended by Shri Tripathi that the observations of the detaining authority in the affidavit that the possibility of the detenu being released on bail and the further possibility of his misusing the bail by indulging in similar prejudicial activities in future is not sufficient for passing the impugned order of detention. In this context we have perused the file of the detaining authority which has been produced before us by the learned Public Prosecutor. The file shows that the officers of Directorate of Revenue Intelligence seized Mandrax tablets weighing 375 Kgs. valued at Rs. 37,50,000/-. As far as the petitioner is concerned, he was arrested on 10th June,1994. He was presented before the Special NDPS Court. Thereafter he was remanded to judicial custody. The Special NDPS Court has rejected the bail application of the petitioner. In is likely that the petitioner may apply again and he may be enlarged on bail. In that case the detention under the PITNDPS Act is necessary. The aforesaid observation that it is likely that the petitioner may apply again; that he may be enlarged on bail and in that case his detention under PITNDPS Act is necessary, is an observation, which has been made on the basis of the material collected during investigation which material was placed before the detaining authority. In the circumstances, we are satisfied that this is not a case where the detention order has been issued merely on the basis of possible release of the detenu on bail. It is a case, where there is material on record, which has justified the detaining authority to arrive at his satisfaction that it is likely that the petitioner may again apply for bail and may in all probability be enlarged on bail. The detaining authority, in the circumstances, is justified, particularly in view of the gravity of the prejudicial activities in which the detenu is involved, in arriving at a finding that if the detenu is released on bail, he is likely to misuse the same by re-indulging in similar prejudicial activities in future. If one peruses the grounds of detention, we find that the petitioner is a member of a well knit gang engaged in manufacturing, distribution and sale of Mandrax Tablets of large quantities. It is on this material that the detaining authority has arrived at a subjective satisfaction that if released on bail the petitioner would indulge in similar prejudicial activities in future and the same were pressing and compelling reasons which has prompted the detaining authority to issue the impugned detention order.
12. On the issue whether the aforesaid subjective satisfaction has to find place in the grounds of detention themselves or can be made good in an affidavit, Shri. Page the learned Public Prosecutor has placed reliance upon the case of Smt. Hawabi Sayed Arif Sayed Hanif Vs. L. Hmingliana and others, reported in AIR 1993 Supreme Court 810. In that case an affidavit was filed by the detaining authority which reads as follows:-
"I reiterate that though the detenu was in judicial custody, the gravity of the prejudicial activity in which the detenu was involved, the interim bail application filed by the detenu, the possibility of the said application being granted and the further possibility of the detenu being released on bail and indulging in similar prejudicial activities in future were the pressing and compelling reasons which prompted me to issue the impugned order of detention."
The aforesaid satisfaction which was found in an affidavit was accepted by the Supreme Court by observing as follows:-
" Therefore, we hold that all the conditions that are necessary to satisfy the compelling reasons for passing the order of detention are established. Hence this submission is also rejected."
13. If one has regard to the aforesaid case, what follows is that an order of detention cannot be successfully assailed merely because the subjective satisfaction is not to be found in the grounds of detention. The same can be justified in an affidavit to be filed justifying the grounds of detention when the same are challenged. The same can also be justified by production of the file before the detaining authority which had been done in the present case. As indicated, we find that there is sufficient material for justifying the subjective satisfaction arrived at by the detaining authority that the order of detention is required to be passed despite the fact that the petitioner is in detention as it was likely that the petitioner may once again apply for bail or approach higher courts for the purpose of bail. In that event it is likely that he will be granted bail, in which case, having regard to the activities of the petitioner, as reflected in the grounds of detention, it is likely that he may re-indulge in the prejudicial activities and hence it is necessary to pass an order of detention.
14. Shri. Page has next relied upon the case of Biru Mahato V/s. District Magistrate, Dhanbad reported in AIR 1982 S.C. 1539; Merugu Satyanarayana V/s. State of Andhra Pradesh and others, reported in AIR 1982 S.C. 1543; and Devi Lal Mahto v/s. State of Bihar and Another reported in AIR 1982 SC 1548. In all the aforesaid cases the Supreme Court has observed that the awareness must be of the fact that the person against whom the detention order is being made is already under detention or in jail in respect of some offence. This would show that such a person is not a free person to indulge into a prejudicial activity which is required to be prevented by a detention order. And this awareness must find its place either in the detention order or in the affidavit justifying the detention order when challenged. In the absence of it, it would appear that the detaining authority was not even aware of this vital fact and mechanically proceeded to pass the order which would unmistakably indicate that there was non application of mind to the relevant facts and any order of such serious consequence when mechanically passed without application of mind is liable to be set aside as invalid.
15. Shri. Page has next relied on the case of Vijay Kumar v/s. Union of India and others reported in (1988) 2 Supreme Court Cases 57. In the aforesaid case the question whether the subjective satisfaction i.e. compelling reasons justifying the preventive detention of a person already in jail- whether should be found in the grounds of detention or apart from the grounds of detention squarely arose for consideration. In the concurring judgment Jagannatha Shetty, J. has observed thus:
" The first question is as to the legality of an order of detention of the person who was already in custody. The Law Reports contain several decisions on this point and they furnish an instructive lesson for both sides. In all the cases, there is, however, one uniform principle stated and reiterated. It is this: The detaining authority must have awareness of the fact that the detenu is already in custody and yet for compelling reason his preventive detention is found necessary.
The question now raised is what should be the compelling reason justifying the preventive detention if the person is already in jail and where should one find it ? Is it from the grounds of detention or apart from the grounds of detention ? It was urged that apart from the grounds of detention there must be some other material disclosed to the detaining authority that if the detenu is released on bail he would again carry on the prejudicial activities.
I do not think that the contention is sound. There cannot be any other material which can enter into the satisfaction of the detaining authority, apart from the grounds of detention and the connected facts therein. The satisfaction of the detaining authority cannot be reached on extraneous matters. The need to put the person under preventive detention depends only upon the ground of detention. The activities of the detenu may be isolated or casual. They may be continuous or part of a transaction or racket prejudicial to the conservation or augmentation of foreign exchange. Then there may be need to put the person under preventive detention, notwithstanding the fact that he is under custody in connection with the case. As said by Sabyasachi Mukharji, J, in Suraj Pal v. State of Maharashtra (SCC p.31; SCC (Cri) P.465, para 28):
.... but where the offences in respect of which the detenu is accused are so interlinked and continuous in character and are of such nature that these affect continuous maintenance of essential supplies and thereby jeopardize the security of the State, then subject to other conditions being fulfilled, a man being in detention would not detract from the order being passed for preventive detention."
There cannot, however, be any uniform principle to be applied in this regard. Each case has to be judged on its own facts and on its own grounds of detention. If the grounds are germane it would be perfectly legitimate exercise of power to make an order of detention.
In the instant case, having regard to the nature of the grounds furnished to the detenu, I agree with my learned brother that there is hardly any justification to find fault with the order of detention."
16. If one applies the ratio laid down by the aforesaid cases to the facts of the present case, a finding is irresistable that the detaining authority is justified in issuing an order of preventive detention despite the petitioner being in detention. For the foregoing reasons, we find that the first contention advanced by Shri. Tripathi is devoid of merit and the same is rejected.
" With reference to paragraph 2 (vii) of the petition, I say that the Sponsoring Authority submitted the proposal of the detenu alongwith the documents mentioned in the list of documents which was received in the Home Department on 7th September, 1994. The Sponsoring Authority furnished further documents on 29-9-1994 and 11-10-1994. I considered the proposal, scrutinised the documents and issued the grounds of detention on 24-11-1994 and contemporaneously issued the order of detention."
18. Shri. Tripathi has further drawn our attention to the list of documents which is annexed at Exhibit-C to the petition. He has contended that the detaining authority has averred that he had received the documents mentioned in the List of Documents on the 7th September, 1994. He has thereafter made a reference to the document at serial No.27, which is an order passed on 10th October, 1994 rejecting the petitioner's application for bail. Shri Tripathi has questioned the availability of the aforesaid order of 10th October, 1994 on 7th September, 1994. In our judgment not much capital can be raised based on the aforesaid discrepancy. The affidavit has further gone to state that further documents were received on 21st September, 1994 and on 11th October, 1994. It is apparent that certain documents were received after 7th September, 1994 and this is specifically so stated. Hence it is not that all the documents mentioned in the list of documents were received on 7th September, 1994. Documents received on 21st September, 1994 and 11th October, 1994 have also been included in the list of documents. Hence the second contention of Shri. Tripathi is found to be frivolous and the same deserves to be rejected.
19. It is lastly contended by Shri. Tripathi that there has been an indordinate and unexplained delay in the consideration of the representation of the petitioner by the Central Government. It is pointed out that the representation of the petitioner dated 24th December, 1994 forwarded by the Yerwada Central Prison, Pune on 25th December, 1994 was received by the detaining authority on 29th December, 1994. The detaining authority received the para-wise report on 9th January, 1995. There has thereafter been a complete inaction upto 18th January, 1995 when the impugned order of detention was issued. In this context, we have perused the grounds of detention as also the file of the detaining authority. The observation contained in para 3 of the affidavit of Shri. T.S. Sandhu filed on behalf of Union of India viz. "representation was examined vis-a-vis parawise comments and a detailed note was submitted to the competent authority on 18th January, 1995 who rejected the representation on the same day" contains a satisfactory explanation about the time spent between 9th January 1995 and 18th January 1995, which time in our view was necessary in view of the complexity of the activities of the petitioner and his associates and the nature of investigation carried out before the proposal was made for passing an order of detention. The entire record had to be examined in the light of the representation made by the petitioner and the para-wise comments furnished by the Sponsoring authority. It cannot, in the circumstances, be held that there has been an indordinate or unexplained delay in the matter of consideration of the representation by the Central Government. The third and the last submission advanced by Shri. Tripathi is also found to be devoid of merit and the same stands rejected.
In the result, the impugned order of detention bearing No. SPL/3(A) PND-1094/77 dated 24th November, 1994 passed by Shri C.D.Singh, Secretary to the Government of Maharashtra (Preventive Detention) Home Department under sub-section (1) of section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 is maintained. Rule is discharged.
Expedite the issue of certified copy.