TMI Blog1990 (7) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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. The present detenu cannot take advantage of any orders passed by the High Court declaring the detention orders of Rai Chand Shah and Jai Lal K. Vora as illegal. In the facts and circumstances of this case we are fully satisfied that the detenu has not been denied any opportunity of making any effective representation against the declaration issued under Sec. 10(1) of Act As the delay has been explained by the counter affidavit filed by the respondents. Thus we find no force in this ground of the detenu that his representations were disposed of after an inordinate and unexplained delay. Appeal dismissed. - 2531 of 1989 - - - Dated:- 12-7-1990 - B.C. Ray and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nu submitted a representation on 31-1-1989 which was jointly addressed to the Government of Maharashtra and the Government of India and the Hon ble Advisory Board for revocation of the impugned order of detention. The State Government rejected the representation by its reply dated 21-2-1989 and the Central Government by its reply dated 3-3-1989. Thus there was an inordinate and unexplained delay in considering the said representations of the detenu and this violated the right of the detenu under Art. 22(5) of the Constitution of India. The order of detention is illegal on this count also. 3. We shall deal with the above contentions seriatem. With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be necessary in order to prev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) S.C. 62.]. 5. We have given our thoughtful consideration to the arguments advanced by Learned counsel for the parties on the above point. The latest decision of this Court on the above point is Sanjeev Kumar Aggarwal v. Union of India Ors (supra) decided on 4th April, 1990 in which all the earlier cases decided by this Court have been considered including the cases of N. Meera Rani Dharmendra Sugan Chand Chelwat (supra) on which reliance has been placed by the Learned counsel for the petitioner. It was observed in Sanjeev Kumar Aggarwal s case that no decision of this court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention in the case of a detenu who is already in jail. The counsel for the detenu in the above case stongly relied on Smt. Shashi Aggarwal v. State of U.P. Ors. [FJT 1998 (1) S.C. 88]. and Ramesh Yadav v. District Magistrate, Etah Ors. [F1985 (4) SCC 232.] and contended that the bail application could be opposed if moved or if enlarged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etan, 10th Road, Juhu, Bombay - 400 049 (ii) M/s. Ali Decorators, Shop No. 9, A-Wing, Twin Tower, Lokhandwala Complex, Andheri (West), Bombay-58 both of which were searched on 21-10-1988 and some documents were seized from the former shop. Nothing was seized from the 2nd shop. 9. The-statements of the detenu were recorded on 21-10-1988,22-10-1988 and 7-11-1988 under Section 67 of the NDPS Act, 1985. With regard to the statement given by the detenu on 21-10-1988 it was mentioned as under in the grounds of detention. In your statement of 21-10-1988 you inter alia, stated that you have a. business of Video Libraries and Marriage decorations; that you own the property and vehicles mentioned above; that you were initiated into drug trafficking some time in 1984 by one Anwar, owner of Anwar Star Petrol Pump Crawford Market, that in the beginning you were employed as a delivery boy on a compensation of Rs. 30/- per day; that you used to deliver Heroin to customers on the road side; that after sometime you started procuring Heroin from Pathans and repacking it in small packets and you used to store it in public toilets with the help of Municipal Sweepers and sell the same; that you us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion: You were arrested on 22-10-1988 and produced before the Additional Chief Metropolitan Magistrate (Holiday Court) on 23-10-1988 who remanded you to Judicial Custody till 4-11-1988 which was extended from time to time. You also filed application for bail on 21-11-1988 which was rejected by the Addl. Chief Metropolitan Magistrate, 8th Court, Bombay. 12. It may be further important to note that in the grounds of detention the detaining authority had noted that the other detenus Shri Rai Chand Shah and Sh. Jailal Keshavlal Vora were already released on bail on 18-11-1988 on furnishing a bail for an amount of Rs.1,50,000/- each in cash. After taking note of all the above circumstances the detaining authority made the following observations in respect of the detenu having a likelihood of being released on bail: It is clear that there is a ring of traffickers in heroin and Mandrax tablets in Bombay and you are a part of the ring and you have been habitually engaging yourself in possession, sale, purchase, transportation and storage of narcotic drugs and psychotropic substances. I am aware that you are still in judicial custody but I am also aware that under the normal law of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so suffers from the same vice and as such his order of detention should also be set aside. 15. We see no force in this contention. We have perused the orders of the High Court quashing the detention orders of Rai Chand Shah and Jai Lal Vora. A perusal of the orders of the High Court shows that the basis for the detention orders of Rai Chand Shah and Jai Lal Vora were their confessional statements. It was alleged before the High Court that Rai Chand Shah was given a severe beating on account of which he sustained serious injuries and as such his alleged confessional statement should not have been made a ground of detention. The High Court in this regard observed that the confessional statement of Rai Chand Shah being product of threats and injuries sustained by him and his medical report having been placed in truncated form before the detaining authority, the certificate showing injuries in detail not having been placed before the detaining authority by the sponsoring authority, the detention became invalid. Now so far as Jai Lal Keshav Lal Vora is concerned the High Court took the view that the statements of Rai Chand Shah formed integral and vital part of the grounds of detentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than Fifteen days, from the date of detention. This provision thus relates to the communication of the grounds of detention. In the case before us the grounds of detention were admittedly communicated on 20lh December, 1988, while the detention order was of 19-12-1988. Thus there is full compliance of the above provision and the order of detention cannot be challenged on this ground. Now so far as the guarantee under Clause (5) of Art. 22 of the Constitution is concerned there can be no manner of doubt that the person detained under any law of preventive detention ought to be communicated the grounds on which the order has been made so as to afford him the earliest opportunity of making a representation against the order. The detenu was served with the grounds of detention on 20th December, 1988 and the detenu had full and ample opportunity to make a representation against the detention order. Sub-sec. (1) of Sec. 10 of the Act reads as under: Notw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) of Section 3 relating to communication of grounds of detention cannot be applied in respect of declaration issued under Sec. 10(1) of the Act. In the facts and circumstances of this case we are fully satisfied that the detenu has not been denied any opportunity of making any effective representation against the declaration issued under Sec. 10(1) of Act. 19. The last submission made on behalf of the detenu is that the detenu had submitted a representation on 31-1-1989 jointly addressed to the Government of Maharashtra, the Government of India and the Advisory Board. The State Government rejected the representation by its reply dated 21-2-1989 and the Central Government by its reply dated 3-3-1989. It was thus contended that there was an inordinate and unexplained delay in considering the said representations and this is violative of the right of the detenu conferred under Clause (5) of Art. 22 of the Constitution. The point should not detain us any longer as we fully agree with the finding of the High Court, recorded in this regard. The High Court has given adequate and detailed reasons in holding that the delay has been explained by the counter affidavit filed by the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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