TMI Blog1997 (2) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 when on the basis of specific intelligence, Officers of the Narcotic Control Bureau, Mumbai searched Room No. 1006 of Taj Intercontinental Hotel, Mumbai. A bag cantaining 10 kgs. of heroin was recovered, though, at that time, the occupants of the room named John and Maggie were not available. The heroine was supposed to be exported to United Kingdom. The seizure was effected on the basis of the intelligence received from Her Majesty's Customs and Excise, South-East Regional Squad, U.K. and in fact two officers, one male and female had acted as under-cover agents assuming the names of John and Maggie. They had come to Bombay on 17.02.1995 and had established telephonic contact with the detenu and his younger brother Nasarullah @ Nasir @ Munna. Nasarullah is alleged to have delivered the bag containing 10 kgs of heroin to John at about 10,00 A.M. on 19th February, 1995. Thereafter, John was alleged to have contacted the detenu and his brother from a Hotel in London on 21st February, 1995. In the follow up action the officers of the said South East Regional Squad, U.K. arrested one Ravikant Rambhai Patel and Nasir Chaudhari in U.K. 3. The second incident is regarding the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing for the petitioner, tried to raise three contentions before us. 5. Contention (xvi) in Para 4 of the Petition is to be found at Page 30-A of the Petition. It relates to the detenu's submitting the representation dated 9.10.1995 to the detaining authority-respondent No. 2, through the Prison Authority. The contention that is raised in ground (xvi) is about the alleged non-consideration of the said representation by (i) the detaining authority and (ii) the Central Government, independently of the opinion of the Advisory Board. 6. The second contention is ground No. (xvii) in Para 4 of the Petition at page 30-B. This relates to the petitioner's representation dated 9.10.1995 against the declaration dated 14.9.1995 under Section 10(1) of the PITNDPS Act. Section 10 deals with cases in which and the circumstances under which the persons may be detained for a period longer than three months without obtaining the opinion of the Advisory Board. In this case, having regard to the declaration made under Section 10(1) of the PITNDPS Act, the period of detention is two years which is likely to expire on 23rd August 1997. The contention raised is whether the representation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4th December 1995 in the first place. On the 4th December 1995 it was forwarded to the Advisory Board which considered the same and made its report on 29th January, 1996. The effective hearing before the Advisory Board was held on 15th January 1996. Even during this period - 4th December 1995 to 29th January 1996 the Central Government was obliged to consider the representation dated 9.10.1995 against the order of detention under Section 3(1) of the Act. It is further contended that even after the Advisory Board made its report on 29th January 1996, but before the order of confirmation was made by the Central Government, on 6th February 1996 the Central Government was obliged to consider the same. The confirmation under Section 9(f) of the PITNDPS Act was made by the Central Government on 6th February 1996 and Memo to that effect was issued by the Central Government on 8th February, 1996. However, during none of these three stages viz. (i) 11.10.1995 to 4.12.1995; (ii) 4.12.1995 to 29.1.1996; and (iii) 29.1.1996 to 6.2.1996, the Central Government considered the representation independently of the proceedings pending before the Advisory Board or the report of the Advisory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to revoke the order of detention or order of declaration as the case may be. Thus, there was a specific prayer calling upon the Central Government to consider both the representations; one against the order under Section 3(1) of the PITNDPS Act and the other against the order of declaration under Section 10(1) of the said Act. There is no dispute on these facts, including the fact that sufficient number of copies, 5 of each of the two representations were sent to the appropriate authorities through the Jailor. 10. When we turn to the affidavit of Shri A.K. Srivastava, sworn on 6th August 1996 we find that the first representation dated 9.10.1995 against the order of detention was received in his office on 11.10.1995. On receipt of this representation, undoubtedly, the detaining authority, as also the Central Government was obliged to consider the said representation The pleadings in Para 3 of the affidavit of Shri Srivastava are very clear. Similarly, in para 4 of his affidavit he has admitted that the representation dated 9.10.1995 against the order of declaration under Section 10(1) of the Act was received by the declaring authority on 25.10.1995. The Central Government had, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the appropriate government to apply its mind to the material on record and if there was failure on the part of the appropriate government to apply its mind to the material on record, it was held that it would be a serious infirmity which would make continued detention illegal. The Supreme Court referred to its earlier decision in Maneka Gandhi v. Union of India , and then observed in Para 11 of the Judgment in Nand Lai's case at page 2045 as under: 11. The matter can be viewed from another angle. We were informed that the Advisory Board did not forward the record of its proceedings to the State Government. If that be so, then the procedure adopted was not in consonance with the procedure established by law. The State Government while confirming the detention order under Section 12 of the Act has not only to peruse the report of the Advisory Board, but also to apply its mind to the material on record. If the record itself was not before the State Government, it follows that the order passed by the State Government under Section 12 of the Act was without due application of mind. This is a serious infirmity in the case which makes the continued detention of the detenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Section 8(c) of the PITNDPS Act. The observations to this effect are to he found at pages 1092 and 1093. It was then emphasised in para 8 of the Judgment at page 1093 of the Report that even if there be only one representation by the detenu addressed to the detaining authority, the obligation arises under Article 22(5) of its consideration by the detaining authority independent of the opinion of the Advisory Board in addition to its consideration by the Advisory Board while giving its opinion. Then, in Para 9 of the Judgment at page 1094 of the Report it was observed as under: 9. It being settled that the aforesaid dual obligation of consideration of the detenu's representation by the Advisory Board and independently by the detaining authority flows from Article 22(5) when only one representation is made addressed to the detaining authority, there is no reason to hold that the detaining authority is relieved of his obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority and submitted to the Advisory Board during pendency of the reference before it. It is difficult to spell out such an inference from the content ..... X X X X Extracts X X X X X X X X Extracts X X X X
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