Delhi High Court
Shambhu Nath Singh vs Union Of India And Anr. on 26 April, 1989
Equivalent citations: 1990(2)CRIMES528, 38(1989)DLT192
JUDGMENT Charanjit Talwar, J.
(1) By this petition under Article 225 of the Constitution, Shambhu Nath Singh seeks setting aside of the order passed against him on 6th July, 1988 under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Ordinance, 1988 (for short 'the Ordinance') by the Joint Secretary to the Government of India. Shri K. L. Verma, the specially empowered officer under the Ordinance, made the order against the detenu with a view to preventing him from engaging in transportation of narcotic drugs. Along with the impugned order grounds of detention also dated the 6th july, 1988 were served on the detenu on 7th July, 1988 at Central Jail where he was lodged as an under-trial. In paragraph 13 of the grounds he was informed by the detaining authority that :- "YOU have right to make representation against the order or detention to the detaining authority and/or to the Central Government and you may address it to the undersigned or to the Secretary to the Government of India, Ministry of Finance, North Block, New Delhi as the case may be and forward the same through the Superintendent, Central Jail, Tihar, New Delhi."
(2) Mr. Grover, learned counsel for the petitioner had urged two contentions before me : "(1)that the relied upon document was not served on the detenu pan passu the grounds. His reference is to the statement of Sobol Sarkar, who was admittedly traveling in the truck No. BHF-1725 along with the petitioner when it was intercepted. The grounds for detaining the petitioner as well as his co-detenu were that it was from that truck in which they were traveling that more than 421 Kgs. ganja was recoverd. The driver of the truck, Dalip Dass; the present detenu and Anil Kumar (out of the four occupants) were arrested for the offences under the N. D. P. S. Act. Eventually. Dalin Dass and the present petitioner were detained under the Ordinance. Sobol Sarkar's voluntary statement was recorded under Section 67 of the N.D.P.S. Act. That statement is referred to in paragraph 5 of the grounds ; (2) alternatively. Mr. Grover submits that even if the voluntary statement of Sobol Sarkar is not to be a considered as having been relied upon, in law that document has to be considered as having been referred to and, therefore, to enable the petitioner to make an effective representation, a copy of the same was mandatorily to be supplied to him or his request, Mr. Grover submits that in spite of having sought a copy of that document it was not supplied."
(3) At this stage , I may note the objection of Mr. Sharma learned counsel for the respondents. According to him, the petitioner has no where averred the date on which he made the representation. The plea is that the petitioner not having given any particulars about the representation; nor having annexed a copy of the representation along with the petition the petitioner is not entitled to urge that a representation was made as alleged. In this context, it is necessary to quote the averment raised in the petition about the representation having been made Paragraph 7 of the petition reads as follows:- "THAT,during the course of his representation the petitioner asked for the supply of following documents to him, but was denied. He asked for the supply of petitions moved by Uma Nath Parshad Singh, the alleged owner of the said truck moved by him before the Sessions court as well as before the Hon'ble Delhi High Court for the return of the said truck on Superdari. He also asked for the copy of the order dated 30-9-88 regarding dismissal of the application passed by the learned Additional Chief Metropolitan Magistrate, New Delhi. The petitioner further sought the statement of Sobol Sarkar, the alleged cleaner of the said truck, recorded by the N.C.B. people and duly relied upon by the said detaining authority in their paragraph 5 of of the petition. Moreover, Shri Sobol Sarkar is also one of the attesting witnesses of title Panchanama dated 2-2-88 (photocopy of which is enclosed as Annexure-A for the perusal of this Hon'ble Court)."
(4) The ground has been reiterated in ground (e) to paragraph 19 of the petition. It is, inter alia, pleaded therein that "NON-SUPPLY of vital statements of Public Witness . Sobol Sarkar whole statement has been relied upon by the detaining authority in its grounds of detention, shows that the detaining authority did not apply its mind to the facts and circumstances of the case-resulting in the detention of the petitioner"
(5) The respondents I and 2 have filed affidavit to Shri S. N. Balakrishn Under Secretary, Ministry of Finance, Department of Revenue, New Delhi. Their case seems to he that the statement of Sobol Sarkar was not "vital" and as such non-supply of the same had no effect on petitioner's detention. Paragraph 7 of the counter affidavit reads as follows - "IN reply to para 7 of the writ petition, it is submitted that the application of Shri Uma Nath Prasad Singh was relied upon by the detaining authority and was also supplied to the petitioner along with the documents relied upon. The same is placed at S. No. 9 of the documents relied upon. The statement of Sobol Sarkar is not a vital one because he in his statement has stated that the loading or carrying of ganja was not in his knowledge. As such, the non-supply of the statement has got no effect on the detention of the petitioner."
(6) In reply to ground (e) to paragraph 10 of the petition, the above stand is reaffirmed. It is submitted that statement of Subul Sarkar was not vital as he in his statement had merely stated that the loading or carrying of ganja in the truck was not in his knowledge. It is, therefore, pleaded that non-supply of statement has no effect on the detention of the petitioner.
(7) In the grounds of detention, the detaining authority has referred to the voluntary statement made by each one of the occupants of the truck. Paragraph 2 of the grounds refers lo the statement tendered by the petitioner herein In paragraph 3, it is stated that Anil Kumar had corroborated the statement of the petitioner regarding carrying of the ganja. Paragraph 4 refers to the voluntary statement made by Dalip Dass. the driver to the truck. It appears that Dalip Dass had also made an inculpatory statement. Paragraph 5 speaks of the statement made by Subject Sarkar, the 4th occupant of the truck. That paragraph reads as follows :-- "INhis, voluntary statement tender on 2-2-88 under Section 67 of the N.D.P.S. Act, 1985 Shri Subol Sarkar stated that as he was without job and knew Dali'p Dass, when he (Dalip) told him that be was without a cleaner and asked him to join be (Subol) agreed to do this trip from Siliguri i.) Delhi and that he had no association or knowledge about the ganja seized from the truck."
(8) In the list of documents relied upon the statement of the petitioner is mentioned at Sr. No. 2. At Sr. No. 3 is the statement of Anil Kumar Singh and at Sr. No. 4 is the statement of Dalip Dass. In my view, in the context of the grounds as slated, the statement of Subol Sarkar is deemed to have been relied upon by the detaining authority. As noticed above, on the respondents' own showing the statement of other three persons have been relied upon. Copies of those statements were supplied to the detenu. The pies of the respondents that as Subol Sarker had denied the knowledge of loading or carrying of the ganja. therefore, that statement was not "vital" has to he rejected. Apart from the fact of recovery of ganja in the present case, the voluntary statements under Section 67 of the N.D.P.S. Act. 1985 made by all the four occupants of the truck were in fact relied upon by the detaining authority. In the grounds all those four statements have been referred to ; three of the. statements, that of the petitioner. Anil Kumar Singh and Dalip Dass have been relied upon ; the 4th statement i.e. the statement of Subol Sarkar is also to be considered as relied upon statement.
(9) The alternative submission of Mr. Grover is also to be accepted. Paragraph 7 of the petition clearly states that a representation was made to the authorities for seeking supply of a number of documents. One of the documents sought for was a copy of the statement of Subol Sarkar. This has been stated in so many words. The reply in paragraph 7 of the respondents is not to the effect that the representation had not been received or had not been made by the petitioner. The stand is that the statement of Subol Sarkar "is not vital one". I have to hold that as the respondents are not denying the receipt of the representation from the petitioner, that representation seeking copies of documents was in fact made to them. In that view of the matter, a copy of the statement of Subol Sarkar not having been supplied, it has to be further held that the petitioner was deprived from making an effective representation. This would be the result even if I agree with the respondents that the said document was not relied upon document hut was merely referred to by way of narration of facts. Therefore, assuming for the sake of arguments that the statement was not relied upon but merely referred to, lion-supply of the copy of the document even after request had been made for it, constitutes infringement of the right of the petitioner.
(10) Accordingly I hold that the continued detention of the petitioner is bad The detention order is liable to be set aside. I hereby quash it. The petition is allowed and the Rule made absolute The petitioner, if not required to be detained under any other valid order passed by a court or any other competent authority, be set at liberty forthwith.