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TMI Blog1990 (7) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... detenu was already in jail as his bail application had been rejected. The wife of the detenu filed a writ petition before the Bombay High Court challenging the detention of her husband Syed Ali Raza Shafiq Mohammed. The Division Bench of the High Court dismissed the writ petition by order dated 29th September, 1989. The wife of the detenu has now filed the present Special Leave Petition aggrieved against the Judgment of the Bombay High Court. Learned counsel for the petitioner raised the following submissions before us : (1) There were no prospects of the detenu being enlarged on bail as he was involved in a case under the Act where the offence was punishable with minimum sentence of ten years. The bail application filed on behalf of the detenu was rejected by the Metropolitan Magistrate and the detenu had not filed any application for bail either in the Sessions Court or in the High Court. (2) That detention orders of Rai Chand Shah and Jai Lal Vora had already been struck down by the High Court on the ground that the medical report in respect of the injury sustained by Rai Chand Shah was placed in a truncated form before the detaining authority. The detention order of the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and circumstances of each case whether a detention order is to be passed or not in case of a person who was already in custody. An order of detention can be validly passed against a person in custody where the detaining authority was already aware of such facts and it is satisfied that the detenu is likely to be released from custody in the near future. The detaining authority can take into account the nature of the antecedent activities of the detenu in order to arrive to the conclusion that it is likely that after his release from custody he would indulge in criminal activities and it was necessary to detain him in order to prevent him from engaging in such activities in the present case there was complete awareness in the mind of the detaining authority about the detenu being in custody and that if he is released on bail he is likely to indulge in the criminal activities. The detaining authority was not only aware that the detenu was in jail but also noted the circumstances on the basis of which he was satisfied that the detenu was likely to come out on bail and continue to engage himself in the criminal activities. It was submitted that the High Court has considered this aspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Purab Paschim Apartments, Gilbert Hill Road, Munshi Nagar, Andheri (West), Bombay-58 and recovered 56 Kgs. 650 gm. of Heroin (33 Kgs. 150 gms. white and 23 Kgs. 500 gms. brown) and 4000 Mandrax Tablets (Methaeualone) totally valued at Rs. 1,13,42,000/- on 21-10-1988. 7. One Mr. Syed Asgar All was found in the room. During the course of the search another person named Abdul Sattar Abdul Samad came on Motorcycle No. BLC 7768 Make Hero Honda and entered into the premises. Thereafter, two more persons came into the premises who gave their names as Ali Raza Shafiq Mohamed (detenu in the present case) and Thakur Singh. The Officers also searched and seized a Bajaj Scooter MAQ 169, the Motorcycle No. BLC 7768 and Fiat Car No. MMH 4348 which were parked in the compound of the said society. According to the present detenu the said three vehicles belonging to him were used for transportation of Narcotic Drugs. 8, Telephone No. 6288769 was found installed in the premises. It was subscribed by one Shirish Parikh, K-18, Azad Nagar Society, Juhu Scheme, Road No. 7, Bombay-56. The detenu disclosed that he was living in Flat No. 15, 4th Floor, Chandra Co-op. Housing Society Ltd. Dawood Baug, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29 Kgs. of white Heroin in instalment from one Mangal Pandey of Benaras and the remaining white heroin from one Raichand Chandmal Shah, that 25 Kgs. of Brown Heroin was purchased from one Asgar of Phulgalli, Bhendi Bazar who has since died; that you did not know the address of Mangal Pandey, that you purchased the Heroin on credit; that over the last about 3/2 years you must have sold 300 Kgs. of Heroin that all the movable and immovable property acquired by you has been purchased from the profits from drug trafficking; that your income from legal business of Video library and decoration is about Rs. 2000/- per month." 10. The statement recorded on 22-10-1988 as mentioned in the grounds of detention is reproduced as under : "In your next statement of 22-10-1988 you stated that because you had to make 3-4 trips to your native place and that was the reason why such a large quantity of heroin was lying with you; that you were keeping one car and two wheeler because you required them for transporting/selling of Mandrax tablets and it is advisable to use different vehicles in this business; you further stated that Abdul Sattar and your brother Syed Asghar Ali were not involved in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... livery boy on Rs. 30/- per day and within a short span of four years the detenu himself started buying and selling Narcotic Drugs and amassed huge movable and immovable properties in Bombay. In the present raid itself heroin and Mandrax tablets worth Rs. 1,13,42,000/- were seized from the ownership and possession of the detenu. Not only that the detenu was using three vehicles for transportation of these Narcotic drugs. The detaining authority after taking into consideration the above materials placed before him, arrived to the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it necessary to invoke the law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody. 14. It was next contended on behalf of the petitioner that the detention orders of Rai Chand Chandmal Shah and Jai Lal Keshavlal V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Lal K. Vora as illegal. 16. It was next contended on behalf of the petitioner that though a declaration was issued under Sec. 10(1) of the Act on 20th January, 1989 but the same was served on the detenu on 10-2-1989 after an unexplained delay of 21 days. It was vehemently contended on behalf of the detenu that the detenu ought to have been served with the declaration as soon as may be after the issue of such declaration, but ordinarily not later than 5 days and in case it was not done within five days then reasons ought to have been recorded in writing for explaining the delay and that also could not have been later than 15 days in any case. Learned Counsel in this regard submitted that under Clause (5) of Art. 22 of the Constitution a right is guaranteed to the detenu to afford an earliest opportunity of making a representation against the order of detention. It was contended that when the liberty of a citizen is taken away he ought to be afforded an opportunity of making representation at the earliest and the provisions contained in sub-sec. (3) of Sec. 3 of the Act should in terms also apply in the case of communicating the declaration issued under Sec. 10(1) of the Act. 17. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs and psychotropic substances into, out of, through or within any area highly vulnerable to such illicit traffic and makes a declaration to that effect within five weeks of the detention of such person". 18. In the counter affidavit filed before this Court it has been stated in para (L) as under: "Regarding the declaration, it may be stated that the same was despatched by the Ministry of Finance on 20-1-1989 to the Home Secretary, Government of Maharashtra, Bombay, Maharashtra Government forwarded it to NCB, Bombay which was received in the NCS office on 1-2-1989 from the State Government. It was then sent for translation, 4th and 5th February, being holidays (being Saturday and Sunday) the declaration was despatched on 6-2-1989. It was received by the Jail authorities on 10-2-1989 and served on the detenu same day". Thus the declaration had been made in this case on 20-1-1989 by the Ministry of Finance within the statutory period of five weeks of the detention and the period taken in serving the same on the detenu on 10-2-1989 has been sufficiently explained. The detenu was lodged in Central Prison Bombay and the Advisory Board had fixed a date on 23-2-1989 and as such the det ..... X X X X Extracts X X X X X X X X Extracts X X X X
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