TMI Blog2007 (9) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... anganj, Teliwara, near Azad Market, Delhi on 29/30th November,1999. In the search, which was conducted at the said place on 29/30th November, 1999, 32.305 kg. of brown powder kept in nineteen transparent polythene bags kept inside three Safari suitcases, was said to have been recovered. 3. Appellant filed an application before the special judge that he may not be transferred to Delhi. The said plea was not accepted. The order of detention was placed before the Advisory Board for confirmation. The Advisory Board was to hold its meeting on 22nd April,2000. According to the appellant on the aforementioned date neither he nor his advocate Shri S.C. Puri could appear before the Advisory Board as he was being taken to Delhi from Bengal, and his advocate received the said communication from the Advisory Board only on 25th April,2000. It is also not in dispute that upon recommendations of the Advisory Board, the order of detention was confirmed on 12.5.2000. 3. Appellant made two representations praying for revocation of the order of detention. The first representation was made on 14th March,2000 raising all legal questions. The said representation was rejected. He, however, filed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ante-dated and his advocate Shri S.C. Puri did not receive the said communication as a result whereof the appellant is said to have been deprived of an opportunity of being represented before the Advisory Board is not correct. Our attention in this regard has been drawn to a letter dated 7.4.2000 addressed by the appellant to his counsel to Shri S.C. Puri wherein it was stated that not only he had received the said communication dated 7.4.2000 on the said date itself but had advised his counsel to attend the said meeting of the Advisory Board which was to be held on 22.4.2000 at 11.00 a.m. on his behalf as he himself was unable to attend because of his sickness. Appellant was, therefore, aware of the date of meeting of the Advisory Board much in advance. 10. Apart from that, one Mangal Dass who was an Intelligence Officer, NCB, Delhi in an affidavit categorically stated that he had himself contacted the advocate of the appellant Shri S.C. Puri over telephone on 18.4.2000 and informed him about the contents of the aforementioned letter dated 7.4.2000. As the said contention of the appellant that he had cxbeen deprived of the constitutional right to be represented before the Advi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g for preventing detention can authorise the detention of a person for a longer period than three months unless the Advisory Board reports before expiration of the said period of three months that there is, in its opinion, sufficient cause for such detention. When an authority issues a declaration under Section 9(i) of the Act, the said authority has the necessary powers to revoke the declaration on a representation being made by the detenu against such declaration. Consequently, if the detenu is not intimated of his right to make a representation to the authority issuing the declaration under Section 9(i) then certainly his valuable constitutional right gets infringed and the two decisions of the Full Bench relied upon by Mr. Kotwal fully support this contention. Mr. N.N. Goswami, learned senior counsel appearing for the Union of India fairly concedes this position.? 13. The said decision has been followed by this Court recently in Union of India Anr. Vs. V. Harish Kumar reported in J.T. 2007 (10) SC 254, holding: ?In our considered opinion the decision of this Court in Meena Jayendra Thakur is an authority for the proposition that an order of detention passed by the detainin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B. Singh, learned counsel submitted that once it is held that the relevant factors were considered, the same conferred jurisdiction on the detaining authority to take extraordinary procedure in passing the order of preventive detention against the appellant, and when such facts are found to have been existing, this Court should not interfere therewith. 18. An application for bail is required to be filed and considered by the appropriate Court in terms of Section 439 of the Code of Criminal Procedure but in cases involving the provisions of the NDPS Act, the detaining authority was required to take into consideration the restrictions imposed on the power of the court to grant bail having regard to the provisions of Section 37 thereof. It reads as under: 37. Offences to be cognizable and non-bailable.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974) -- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for [offences under Section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless -- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... variably be brought to the notice of the court dealing with the application of bail filed by the detenu by the public prosecutor. Further more, the order of the Court granting bail would be passed only when the court dealing therewith forms an opinion that there are reasonable grounds for believing that he is not guilty of such offences that there was no likelihood to commit any offence while on bail. 22. In Amritlal Ors. vs. Union Govt. through Secy., Ministry of Finance Ors., (2001) 1 SCC 341, wherein this Court, following the decision in Binod Singh Vs. District Magistrate, Dhanbad (1986 (4) SCC 416, held as under: 6. The requirement as noticed above in Binod Singh Case that there is ?likelihood of the petitioners being released on bail? however is not available in the reasoning as provided by the officer concerned. The reasoning available is the ?likelihood of his moving an application for bail? which is different from ?likelihood to be released on bail?. This reasoning, in our view, is not sufficient compliance with the requirements as laid down. 7.The emphasis however, in Binod Singh case that before passing the detention order the authority concerned must satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l probability indulge in prejudicial activities; and (3) it is felt essential to detain him to prevent him from so doing. 26. Yet again, our attention has also been drawn to the decision of this Court in Smt. Azra Fatima Vs. Union of India Ors. (1991) 1 SCC 76 wherein a Bench of this Court while considering the validity of an order of detention under the said Act had held that the likelihood of the detenu to be released on bail together with other relevant factors namely his antecedents as well as his likelihood of involvement and in continuing to commit similar offences are to be borne in mind. But therein two of the co-detenus had already been released on bail and thus, detaining authority could arise at his subjective satisfaction. However, in this case, the co-accused of the appellant had not been released on bail and in that view of the matter the detaining authority was required to apply his mind on the material on record to arrive at his subjective satisfaction. 27. In Dharmendra Suganchand Chelawat Anr. Vs. Union of India Ors., AIR 1990 SC 1196, this Court held: 21.We are, however, unable to agree with the same. In the grounds of detention the detaining autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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