Madhya Pradesh High Court
Mrs. Kailashbai And Mrs. Puneet Kalra vs Union Of India (Uoi) And Ors. on 7 February, 2008
Equivalent citations: 2008(2)MPHT118
Author: Manjusha Namjoshi
Bench: Manjusha Namjoshi
ORDER S.K. Kulshrestha, J.
1. These petitions raise an interesting and important question with regard to the maintainability/continuance of the petition for a writ of habeas corpus in the case of preventive detention even after the period of detention is over if the detenu is likely to be visited with civil or other consequences to his detriment under the provisions flowing from detention under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.
2. For the purposes of this decision, reference is being made to the facts stated in Writ Petition No. 2899/2007 unless stated otherwise, as both the petitions proceed on similar contentions and are based on very similar facts except that in the case of detenu Nikku Singh, an application was made for his release on bail, which was dismissed by order dated 12-5-2006 while in the case of detenu Shyamsundar, no such application was made till the passing of the order of detention dated 27th December, 2006. Both the petitions are, therefore, being decided by this common order.
3. The wives of the two detenus have challenged the order of detention (Annexure A) dated 27th December, 2006 passed by the 2nd respondent-Joint Secretary to the Government of India in purported exercise of the power granted by Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as 'the Act'). In pursuance of the said order, grounds were simultaneously served on the detenu stating that both the detenus were found in possession of 23.700 kilograms of opium, which they were transporting in a jeep. It is not disputed that a case under the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 was registered for the substantive offence and the detenus were in judicial custody in respect of the said offence ever since their arrest on 12-4-2006. Since the order was passed on 27-12-2006 and served on the detenu, as late as, on 23-1-2007, although both the detenus were in custody, and the order could have been served on the same day or soon thereafter, delay in effecting service from the date of the order till its actual service, has not been explained.
4. It is not disputed that within the prescribed period the order of detention alongwith the record, on which the order was based, was placed before the Central Advisory Board and on receiving the opinion of the Board that sufficient grounds existed for the detention, the detention was confirmed for a period of one year from the date of detention, i.e., 23-1-2007 by order dated 10th April, 2007 (Annexure B). It is in this context that the period, having elapsed on 22-1-2008, learned Assistant Solicitor General contends that the petition has become infructuous as the writ oihabeas corpus cannot be issued in case of a person who is not in confinement insofar as the order of detention (Annexure A) is concerned.
5. The first question, in the light of the contention of the learned Assistant Solicitor General, that falls for our consideration is as to whether in a petition of habeas corpus seeking release of the detenu a new ground can be urged for seeking a different writ to save the detenu from the civil consequences which flow from the order of detention and the said order can be interferred, if it is vitiated in the eye of law. The order of detention having not been disputed and expiry of the period of detention having been admitted, we proceed to consider whether on the basis of the changed circumstances, the Court has jurisdiction to consider the validity, legality and propriety of the order of the detention passed under Section 3 (1) of the Act.
6. Learned Counsel for the petitioners has invited our attention to the decision of the Supreme Court Adishwar Jain v. Union of India and Anr. (2007) 1 Supreme Court Cases (Criminal) 464 in which Their Lordships have observed that it may be true that the detenu having remained in detention for the entire period, a writ of habeas corpus cannot be issued but it is another thing to say that an order of detention is required to be quashed so as to enable the detainee to avoid civil liabilities. The said case was in respect of the preventive detention which entailed adverse consequences under SAFEMA. The observations contained in Paragraph 18 of the report read as follows:
18. Although learned Additional Solicitor General may be correct in his submissions that ordinarily we should not exercise our discretionary jurisdiction under Article 136 of the Constitution of India by allowing the appellant to raise new grounds but, in our opinion, we may have to do so as an order of detention may have to be considered from a different angle. It may be true that the period of detention is over. It may further be true that the appellant had remained in detention for the entire period but it is one thing to say that the writ of habeas corpus in this circumstance cannot issue but it is another thing to say that an order of detention is required to be quashed so as to enable the detainee to avoid his civil liabilities under SAFEMA as also to protect his own reputation.
7. Our attention has been invited to the provisions contained in Section 68-A of the Narcotic Drugs & Psychotropic Substances Act, 1985 providing for forfeiture of the property derived from or used in illicit traffic. Provisions apply to the persons specified in Sub-section (2) thereof which includes a person in respect of whom an order of detention has been made under the Act subject to the condition that the order has not been revoked on the report of the Advisory Board constituted under the Act or such order of detention has not been set aside by a Court of competent jurisdiction. The provisions of Section 68-A of the NDPS Act contained in Sub-sections (1) and (2) with proviso thereunder read as extracted hereunder:
68-A. Application.- (1) The provisions of this Chapter shall apply only to persons specified in Sub-section (2).
(2) The persons referred to in Sub-section (1) are the following, namely:
(a) every person who has been convicted of an offence punishable under this Act with imprisonment for a term of ten years or more;
(b) every person who has been convicted of a similar offence by a Competent Court of criminal jurisdiction outside India;
(c) every person in respect of whom an order of detention has been made under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (46 of 1988), or under the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (J & K Act XXIII of 1988):
Provided that such order of detention has not been revoked on the report of the Advisory Board constituted under the said Acts or such order of detention has not been set aside by a Court of competent jurisdiction;
(cc) every person who has been arrested or against whom a warrant or authorisation of arrest has been issued for the commission of an offence punishable under this Act with imprisonment for a term of ten years or more, and every person who has been arrested or against whom a warrant or authorisation of arrest has been issued for the commission of a similar offence under any corresponding law of any other country.
(d) every person who is a relative of a person referred to in Clause (a) or Clause (b) or Clause (c) or Clause (cc);
(e) every associate of a person referred to in Clause (a) or Clause (b) or Clause (c) or Clause (cc);
(f) any holder (hereinafter in this clause referred to as the "present holder") of any property which was at any time previously held by a person referred to in Clause (a) or Clause (b) or Clause (c) or Clause (cc); unless the present holder or, as the case may be, any one who held such property after such person and before the present holder, is or was a transferee in good faith for adequate consideration.
8. It is in the context of the above civil consequences that the learned Counsel contends that the petition cannot be dismissed at the threshold and if the order passed by the Detaining Authority is illegal, the same cannot be continued merely because the detenus have served out the entire period mentioned thereunder. We find that if the principles laid down by the Supreme Court in Adishwar Jain (supra) are culled out and applied in their proper perspective and spirit, the observations of the Supreme Court notwithstanding that it was in regard to the preventive detention under the different enactment and the civil consequences ensuing therefrom, we are of the view that this Court continues to have jurisdiction to consider the legality of the order as contra-distinguished from the case of continuance of detention. A discussion effect is also contained in Amritlal and Ors. v. Union Government through Secretary, Ministry of Finance and Ors. of which portion of Paragraph 3 of the report reads as extracted hereunder:
3. Learned Advocate appearing in support of the appeals during the course of hearing informed this Court that while it is true that by reason of efflux of time the period of detention has otherwise expired but continued to press the appeal with some emphasis by reason of the consequences as provided in the statute to wit: the forfeiture of the property of the detenu and it is in this context strong reliance has been placed on the decision of this Court in Rivadeneyta Ricardo Agustin v. Govt. of the National Capital Territory of Delhi 1994 Supp(1)SCC 597. This Court while dealing with the matter and relying upon the decision of this Court in Kamarunnissa v. Union of India came to the conclusion that the order of detention cannot but be quashed.
9. The decisions referred to above clearly repel the contention that after period of detention is over, the petition does not survive. In fact, if the effect of the detention is forfeiture of the property, this Court can go into the legality, propriety and validity of the order of detention to see whether the order was legal or proper. This Court cannot, however, issue any writ of habeas corpus on efflux of the period of detention.
10. While not disputing the order of detention on merits, and rightly so, the submission of the learned Counsel for the detenus that the detenus were taken into custody on 12-4-2006 on the charge of violation of the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 as they were found in possession of opium weighing 23.700 kilograms and after their production before the Court having jurisdiction, they were sent to jail as under-trial prisoners. The order of detention was, however, passed on 27-12-2006, more than 8 months thereafter, and served on 23-1-2007 when both the detenus were confined in jail. According to the learned Counsel, this delay vitiates the order of detention. Learned Counsel has brought to our notice the decision of the Supreme Court in Lakshman Khatik v. The State of West Bengal , to the effect that in the absence of any explanation regarding the delay, the order of detention passed with a view to prevent disruption of supplies of food-grains on the ground based on incidents of removal of rice which took place about seven months earlier, was invalid. Attention has also been invited to the decision in S.K. Serajul v. State of West Bengal in relation to the detention under MISA. In the wake of undue delay in passing the order of detention, and in the actual arrest thereafter, the detention order was quashed. In this context, reference has also been made to the decision in Rajendra Arora v. Union of India and Ors. (2006) 2 Supreme Court Cases (Criminal) 418, wherein the detention order passed after 10 months of the illegal act and for which no explanation was given, was considered to be a sufficient ground to quash the order of detention. Same is the observation in Adishwar Jain v. Union of India and Anr. (2007) 1 Supreme Court Cases (Criminal) 464.
11. Learned Assistant Solicitor General for the respondents has invited our attention to Paragraph 6.8 of the return in which the Detaining Authority has clearly stated that the matter was raised before the Advisory Board and after the Advisory Board communicated its opinion with regard to the sufficiency of grounds for detention, the matter was considered and the order was passed on 27-12-2006.
12. We have perused the order of detention and the accompanying grounds (Annexures A & B) and we find that the order is mainly founded on apprehension that the release of the detenus on bail was imminent. Nikku Singh's application for bail had been rejected way back on 12-5-2006 and Shyamsundar had not made any application whatsoever. Learned Counsel for the petitioners submits that in the light of the stringent provision contained in Section 37 of the NDPS Act with regard to the necessity of conclusion that the accused were innocent, there was no likelihood of the bail having been granted to any of the detenus specially when the bail application of Nikku Singh had already been rejected on 12-5-2006. Section 37 of the Narcotic Drugs & Psychotropic Substances Act reads as follows:
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 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless-
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in Clause (b) of Sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.
13. The section clearly begins with a non-obstante clause to the applicability of the Code of Criminal Procedure and provides that when the Public Prosecutor opposes the application for bail, the Court should first satisfy itself that reasonable grounds exist for believing that the person is not guilty of such offence and that, he is not likely to commit any offence while on bail. There is nothing in the grounds of detention to indicate that the Detaining Authority apprehended that the case of the detenus would fall under the excepted category and it was, therefore, necessary to pass an order of detention. We may reiterate that the application of Nikku Singh had already been rejected on 12-5-2006 and it is not the case of the respondents that any application was filed by either or both for release on bail thereafter. Under these circumstances, the delay in passing the order of detention and the indifference thereafter in effecting its service upto 23-1-2007 clearly vitiated the order of detention.
14. The order of detention is even otherwise based on possibility of the bail being granted to the detenus. The detenus were already in jail and though the apprehension of their release from custody has been recorded in the grounds of detention, there does not appear any application of mind with regard to its necessity as no cogent material has been placed on record necessitating such order except that there was likelihood of release on bail. In Amritlal's case (supra), Their Lordships have observed that likelihood of the detenu moving an application for bail is not sufficient for passing the order as it is different from likelihood of being released on bail. As on the date of the order, even application for bail was not pending before the Court and, therefore, it was a case of likelihood of moving an application for bail and not of release. It is contraindicated by the conduct of the Detaining Authority that any release was apprehended. Not only that the order was passed after more than eight months of the incarceration of the detenus but it was served long thereafter on 23-1-2007. We are conscious of the fact that as rightly pointed out by the learned Assistant Solicitor General by reference to A. Geetha v. State of Tamil Nadu and Anr. that satisfaction of the likelihood of being released on bail being subjective, the Court cannot interfere. We are also aware that it is the subjective satisfaction of the Detaining Authority on which detention can be ordered but this subjective satisfaction is required to be derived from some objective criteria and cannot be capricious or whimsical. As observed by the Supreme Court in T.V. Sravanan alias S.A.R. Prasana Venkatachaariar Chaturvedi v. State through Secretary and Anr. (2006) 1 Supreme Court Cases (Criminal) 593 apprehension of the Detaining Authority regarding imminent possibility of the release of the detenu must be based on cogent material. The order was passed by the Detaining Authority after 8 1/2 months and served on the detenus who were in jail nearly after a month. Apart from the fact that there was likelihood of filing the bail application and their release was imminent, nothing was placed on record to show that there was some objective criteria for the satisfaction of the Detaining Authority that the detention of the detenus was necessitated. The only recital in the grounds of detention, apart from the facts about the commission of the offence for which the detenus were under-trial accused, was that they were likely to be released though mention was made in the grounds of detention against Nikku Singh that his bail application has been rejected on 12-5-2006 and Shyamsundar had not made any application for bail till the date of detention order. It was, therefore, not a case where on any objective criteria and for cogent reasons the detention order was passed. Thus, we find that notwithstanding the case relied upon by the learned Assistant Solicitor General about non-interference of the Courts in matters of subjective satisfaction of the Detaining Authority, there being total absence of any cogent material to derive the subjective satisfaction, the order is rendered illegal. The inexplicable delay in passing the order, further adds to its invalidity.
14.1 As a result of the discussion hereinabove, we find that the order (Annexure A) passed for the detention of Shyamsundar and Nikku Singh not only suffers from undue delay of 8 1/2 months after the incarceration of the detenus, it is also vitiated on the ground that no cogent material has been placed on record from which the said satisfaction could have been reached. We are, therefore, unable to sustain the order Annexure A.
15. In the result, the order of detention passed in each case (Annexure A) is quashed. Since the detenus have already undergone the period of preventive detention, no consequential order is required for their release from detention. We may also record that we have quashed the order of detention on the basis of principle governing the preventive detention and observations contained in this order shall not affect the merits of the criminal case pending before the Court having jurisdiction.
Both the petitions are, thus, allowed to the extent indicated herein above.