Rajasthan High Court - Jaipur
Gazi Khan Alias Chotia vs State Of Rajasthan And Anr. on 15 January, 1990
Equivalent citations: 1990(1)WLN470
Author: A. K. Mathur
Bench: A.K. Mathur
JUDGMENT A. K. Mathur, J.
1. The petitioner by this Habeas Corpus Petition has challenged his detention order dated 30-5-1989 passed by the State Government Under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (here in after referred to as 'the Act' of 1988). Along with this, by another communication dated 30-5-1989 the petitioner was also give the grounds of his detention and the petitioner was asked to submit his representation if he so wishes. The allegations have been placed on record as Annex. 2.19 documents were also supplied to the petitioner along with the order of detention which has also been placed on record as Annex. 3. After receipt of the grounds of detention along with the documents the petitioner made a representation to the Detaining Authority on 16-6-1989 demanding copies of the relevent documents so as to enable him to establish his innocence. A copy of the representation has been placed on the record as Annex. 4. The representation, which was sent to the State Government through the Superintendent Central Jail, Jodhpur where the petitioner was detailed, come to be rejected by the State Government by communication dated 11-7-1989, a copy where of has been placed on the record as Annex. 5. The matter of petitioner's detention was referred to the Advisory Board by the State Government and the meeting of the Advisory Board was fixed on 12-7-1989 at Jaipur. The notice of the Advisory Board's meeting was served on the petitioner on 11-7-1989 in the after-noon and on that evening he was taken to Jaipur to produce before the Advisory Board. A copy of this notice dated 6-7-1989 which was served on the petitioner on 11 7-1989 has been placed on the record as Annx. 6, along with the communication (notice) dated 6-7-1989 the petitioner also received yet another notice dated 11-7-89 by which be was informed that he could not be represented by a lawyer or any representative before the Advisory Board. The notice dated 11-7-1989 has been produced on the record as Annx. 7. It is alleged that the petitioner who was not conversant with the law his right to be represented by a friend before on the subject was not informed about Advisory Board. According to the endorsement made on Annx. 6 he was clearly told that he has to appear alone without any lawyer. It is further submitted that he was not given sufficient time to contact his relations and lawyer for appearing before the Advisory Board. It is alleged that at the Central Jail, Jaipur where the petitioner was detained he received this Annex.5, by which his representation to the State Government was rejected. Aggrieved against this action, the petitioner filed the present Habeas Corpus Petition. During the pendency of this petition, the petitioner also received a communication dated 21 8-1989 whereby the petitioner's detention has been confirmed Under Section 9(f) of the Act on the recommendation of the Advisory Board. This has been filed by the petitioner also as well as by the State Government along with its reply and has been marked as Annx. Rule 1. The petitioner by an affidavit submitted that since he has received this communication therefore, he may be permitted to challenge this order of confirmation also along with the other grounds taken by the petitioner. The application of the petitioner was allowed and he was permitted to challenge the order of confirmation also.
2. A return has been filed by the respondents and they by their reply justified the detention of the petitioner.
3. In order to appreciate the various contention raised by the petitioner, it is necessary to first examine the provisions of the Act on the subject.
4. The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 came into force on 6th September, 1988, The basic idea behind enacting this Act is to check the illicit traffic in narcotic drugs and Psychotropic substances. It is common knowledge that the drugs all over the world are creating havoc and disturbing the entire socio-economic structure. In order to take preventive measures to this world wide phenomenon, these strong measures are resorted to and Parliament passed the Act of 1988. The Statement of Objects and Reasons reads as under:
In recent years, India has been facing a problem of transit traffic in illicit drugs. The spillover from such traffic has caused problems of abuse and addiction This trend has created an illicit demand for drugs within the country which may result in the increase of illicit cultivation and manufacture of drugs. Although a number of legislative, administrative and other preventive measures including the deterrent penal provisions in the Narcotic Drugs and Psychotropic Substances Act, 1985, have been taken by the Government, the transit traffic in illicit drugs had not been completely eliminated. It was, there are felt that preventive detention law should be enacted with a view to effect rely immoblising the traffickers. The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 provides for preventive detention relation to smuggling of drugs and psychotropic substances, but it cannot be invoked to deal with persons engaged in illicit traffic of drugs and psychotropic substances within the country. It was, therefore, felt that separate legislation should been enacted for preventive detention of persons engaged in any kind of illicit traffic in narcotic drugs and psychotropic substances. Accordingly, the President promulgated the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Ordinance, 1988 on the 4th July 1988. The ordinance provided for the following, among other things, namely:
(i) The Central Government and the State Governments have been empowered to make orders of detention with respect to any person (including a foreigner) if they are of opinion that it is necessary so to do with a view to preventing him from committing illicit traffic in narcotic drugs and psychotropic substances. The expression "illicit traffic" has been defined to include cultivation of any coca plant of gathering any portion of coca plants', cultivating the opium, poppy or any cannabis plant, or engaging in the production, manufacture, possession, etc, of narcotic drugs or pyschotropic substances;
(ii) Any person in respect of whom an order of detention is made under the Ordinance at any time before 31st July, 1990 may be detained without obtaining the opinion of an Advisory Board for a period not exceeding one year from the date of his detention if the Detaining Authority is satisfied that such person is engaged, is likely to engage, in illicit traffic in narcotic drugs and psychotropic substances in any area highly vulnerable to such illicit traffic. The Ordinance also defined the expression "are highly vulnerable to such illicit traffic."
(iii) The Ordinance also specifically provided that an order of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 cannot be issued on any ground on which an order of detention could be made under the Ordinance."
Section 2(a) defines the 'appropriate Government' and Section 2(e) defines the 'illicit traffic'. Section 2(e) reads as under:
"Illicit traffic", in relation to narcotic drugs and psychotropic substances, means--
(i) Cultivating any coca plant or gathering any portion of coca, plant.
(ii) Cultivating the opium poppy or any cannabis plant;
(iii) Engaging in the production, manufacture possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter-State, export inter-State import into India, export from India or transhipment of narcotic drugs or psychotropic substances;
(iv) Dealing in any activities in narcotic drugs or psychotropic substances other than those provided in sub-clause (i) to (ii), or--
(v) Handling or letting any premises for the carrying on of any of the activities referred to in sub-clauses (i) to (iv);
other than those permitted under the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), or any rule or order made, or any condition of any licence, term or authorisation issued, thereunder and includes:
(1) Financing, directly of indirectly, any of the aforementioned activities;
(2) Abetting or conspiring in the furtherance of or in support of doing any of the aforementioned activities; and (3) Harbouring persons engaged in any of the aforementioned activities.
Section 3 empowers the Central or State Government or any officer of the Central Government, not below the rank of a Joint Secretary so authorised or in the case of the State Government not below the rank of Secretary so authorised to detain such person Section 5 lays down the power to regulate place and conditions of detention and Section 6 relates to grounds of detention severable. Section 9 deals with the Advisory Boards. Section 10 lays down the circumstances under which persons may be detained for periods longer than three months without obtaining the opinion of the Advisory Board Section 11 deals with the maximum period of detention. Section 12 empowers the State Government to revocation the detention order. It further lays down that revocation of the detention order will not debar the State Government from making another detention order against the same person. This is the scheme of the Act and the arguments raised from both the sides have to be judged in the contect of the provisions of the Act of 1988.
5. Another important aspect to which we must first advert at this stage before we proceed to examine the arguments advanced by both the learned Counsel is the scope of judicial review of detention of such nature. The purpose behind the detention in the present Act is to prevent the illicit traffic and specially a place like Jaisalmer which has border with Pakistan through which large number of narcotic drugs and psychotropic substances ere being brought from the neighbouring countries and are being transmitted to other part of the country and ultimately to international market The Hon'ble Supreme Court in number of decisions has laid down the yardstick for judicial review of such detentions and we will do no better to quote the Hon'ble Chief Justice of India. The Hon'ble Mr. Justice Sabyasachi Mukharji who observed in Prakash Chandra Mehta v. Commissioner and Secretary Government of Kerala and Ors. (1985 (Supp) SC 144):
Preventive detention unlike punitive detention which is to punish for wrong done is to protect the society by preventive wrong being done. Though such powers must be very cautiously exercised so as to undermine the fundamental freedoms guaranteed to our people, the procedural safeguards are to ensure that yet these must be looked at from a pregmatic and commonsense point of view. And understanding between those who exercise powers and the people ever whom or in respect of whom such power is exercise is necessary. The purpose of exercise of all such powers by the Government must be to promote common well being and must be subserve the common good. It is necessary to protect therefore the individual right in so far as practicable which are not inconsistent with the security and well-having of the society. Observance of written law about the proceedural safeguards for the protection of the individual is normally the high duty of public official but in a circumstances not the highest. The law or self-preservation and protection of the country and national security may claim in certain circumstances higher priority.
The Hon'ble "Chief Justice further quoted the obsevation of Thomas Jefferson, which read as under--
To lose our country by a scrupulous adherence to written law, would be to loss the law itself, with life liberty, properly and all those who are enjoying them with us; thus absurdly sacrificing the end to the means Therefore, so far as judicial review is concerned, there is no two opinion that the courts are mean to protect individual's liberty but at the same time we cannot sacrifice the larger interest of the society for strict adherence to law which might adversely affect the security of the State and well fair of the society. After all the society exists for the benefit of all. Therefor the strict adherence of law cannot be made by sacrificing the paramount interest of the society.
6. Similarly, their Lordships of the Supreme Court in K. Aruna Kumari v. Government of Andhara Pradesh and Ors. have observed as under.-
The sufficiency of the meterials available to the Detaining Authority is not to be examined by the court. While considering the writ petition of or on behalf of the detenue the Supreme Court or the High Court does not sit in appeal over the detention order, and it is not for the court to go into and assess the probative value of the evidence available to the Detaining Authority. Of course, a detention order not supported by any evidence may have to be quashed, but that is not the position here.
Similarly, in Raj Kumar Singh v. State of Bihar and Ors. was observed by Hon'ble Chief Justice, Mr. Sabyasachi Mukharji, J. (as be then was) as under:
The executive authority is not the sole judge of what is required for national security or public order. But the court cannot substitute its decision if the executive authority of the appropriate authority acts on proper materials and rationally comes to that conclusion even though the court might not be in agreement with the same. It is not for the court to put itself in the position of the Detaining Authority and to satisfy itself that untested facts reveal a path of crime provided these facts are relevant....Preventive detention for the social protection of the community is a hard law but, it is a necessary evil in the modern society and must be pragmatically construed, so that it works, does not endanger social defence or the defence of the community and at the same time does not infringe the liberties of the citizens. A balance should always be struck.
Therefore, in the light of the rational laid down by their Lordships of the Supreme Court in the various decisions, a pragmatic approach has to be taken at the time of examining the detention order specially in reference to the social evil of the drugs and an attempt to prevent its menace.
7. Now, we shall avert to the various arguments raised by the learned Counsel for the petitioner.
8. Learned Counsel has submitted that prior to this detention order dated 30-5-1989 the petitioner was also detained earlier by the order dated 7-1-1987 which has been placed on the record as Annex. 3 (G). But this order was quashed by this Court in Gaji Khan v. State (D.B. Habeas Corpus Petition No. 909 of 1987 decided on 9-6-1987), while disposing of a batch of writ petitions. Learned Counsel has also placed on record the grounds on which the petitioner was earlier detained and they have been marked as Annex. Rule 3. Though initially this ground was not raised in the petition, but the petitioner by an affidavit has raised this ground and a copy thereon was given to the other side and time was also given to the other side to answer. The argument of the learned Counsel is that once the High Court has quashed the detention order, thereafter, on the same ground another detention order cannot be passed. This is an admitted fact that earlier a writ petition was filed by the petitioner along with various persons and this Court allowed those writ petitions by the order dated 9-6-1987 and quashed the detention order The leading judgment was in Talib Khan A 12 others v. State of Rajasthan and Anr. which was reported in 1987 (2) WLN 209. Learned Counsel submitted that once an order of detention is quashed then on the same grounds afresh order of detention cannot be made.
9. As against this, Mr. Joshi, learned Additional Advocate General, appearing for the respondents, submitted that the petitioner was earlier detained Under Section 3(2) of the National Security Act, 1980 and he was released not on the merits but on the technical objection that the District Magistrate was not a Detaining Authority under the National Security Act and the grounds for detaining may be good grounds under the COFEPOSA Act but not under the National Security Act. It is also held that the authorities competent to preventively detain persons Under Section 3 of the COFEPOSA Act could either be the State Government or an officer of the State Government not below the rank of Secretary of that Government specially empowered for the purpose of Section 3 by the State Government apart from the Central Government, and the order was passed by the District Magistrate. Therefore, the detention order passed by the District Magistrate was without jurisdiction.
10. Learned Counsel for the petitioner submitted that it is irrelevant as to whether the person has been released on technical grounds or otherwise. Once the detention order has been quashed by the High Court then on the game grounds a fresh order cannot be sustained. In support of the aforesaid contention learned Counsel has invited our attention to Ibrahim Bachu Bafan v. State of Gujarat and Ors. ; Chhagan Bhagwan Kahar v. N.L. Kalna and Ors. ; Jahangir khan Fazalkhan Pathan v. Police Commissioner, Ahmedabad and Anr. , Ramesh v. State of Gujarat and Ors. [(1989) 4 SCC 124 ]; Ghulam Nabi Zaki v. State of Jammu and Kashmir [(1969) 3 SCC 815)]; Har Jas Dev Singh v. State of Punjab and Ors. and Hadibandhu Das v. District Magistrate, Cuttack and Anr. .
11. As against this, Mr. Joshi, learned Counsel for the respondents, has invited out attention to Naranjan Singh Nnthawan and Ors. v. State of Punjab ; Ujagar Singh and Anr. v. State of Punjab ; P.L. Lakhanpal v. The Union of India ; Jagdev Singh v. State of Jammu and Kashmir ; N. Meera Rani v. Government of Tamil Nadu and Anr. ; and Shivshonkarlal Gupta v. CTA Pillai and two others (ILR 1978 Bombay 1661).
12. In the light of the aforesaid facts and the law on the subject, now we shall examine this argument in detail.
13. The Ibrahim Bachu Bafan's case (supra) is a case under preventive detention. In this case the petitioner who detained under COFEPOSA Act. The detention was challenged before the Gujarat High Court in a writ petition filed by the petitioner. But while the said writ petition was being heard, the order of detention was revoked. But on the same day another order Under Section 3(1) of the Act was made directing his detention and he was detained in pursuance of that order with effect from the very day. The second order of den tent ion was challenged by another writ petition before the High Court. A division bench of that Court by the order dated 8-8-1984 quashed the same by holding that the order of detention was violative of Article 22(5) of the Constitution of India and the petitioner was directed to be set at liberty. On August 20, 1984 a fresh order was made detaining the petitioner and with effect from the same day the petitioner was again detained. On the date of detention the petitioner was served with documents along with the grounds of detention. This was challenged by filing a writ petition under Article 32 of the Constitution of India before Hon'ble the Supreme Court. Io these circumstances, their Lordships of the Supreme Court observed as under:
There is judicial consensus that under the preventive detention law, before the Act in question came into the field, repeated orders of detention could not be made. this Court had clearly indicated that more than one order of detention on the same ground in succession would not be valid.
In that case both the learned Counsel agreed that all the three orders of detention were made on the same grounds. The order of detention was quashed by the High Court on merits. But the basis question in that case was regarding the power of revoation under Sub-section (1) of Section. Therefore, it was observed by their Lordships of the Supreme Court as under:
The power conferred under clauses (a) and (b) of Sub-section (1) of Section 11 is in fact extension of the power recognised Under Section 21 of the General Clauses Act and while under the General Clauses Act, the power is exercisable by the authority making the order, the named authorities under Clauses (a) and (b) of Section 11(1) of the Act are also entitled to exercise the power of revocation. When the High Court exercises jurisdiction under Article 226 of the Constitution it does not make an order of revocation. By issuing a high prepogative writ like habeas corpus or certiorari it quashes the order impuged before it and by declaring the order to be void and striking down the same it null flies the order. The ultimate effect of cancellation of an order by revocation and quashing of the same in exercise of the high prerogative jurisdiction vested in the High Court may be the same but the manner in which the situation is obtained is patently different and While one process is covered by Section 11(1) of the Act, the other is not known to the statute and is exercised by an authority beyond the purview of subsection (1) of Section 11 of the Act. It is, therefore, our clear opinion that in a situation where the order of detention has been quashed by the High Court, subjection (2) of Section 11 is not applicable and the Detaining Authority is not entitled to make another order Under Section 3 of the Act on the same grounds.
In that case the order of detention was quashed on merits and not on the technical ground as in the present case. It may be relevant to mention here that in the earlier judgment delivered by this Court in Talib Khan's case (supra) relating to the petitioner, it was held that the District Magistrate was not competent to pass such order and, therefore, the detention order was without jurisdiction. No opinion was expressed on the grounds on which the order was passed. A distinction has to be made between the quashing of the order on merit by the High Court and quashing of the order on technical grounds. If the order has been quashed by the High Court on merits after examining the grounds then in that case the Detaining Authority could not pass a fresh order on the same grounds as those grounds have already been agitated before the court and those grounds were found to be illegal. Therefore, a fresh order on the same grounds cannot be permitted. But a distinction has to be drawn between quashing of the detention order on merits and quashing of the detention order on technical grounds. So far as quashing of the detention order on technical grounds is concerned, there is no prohibition for issue of fresh order but the quashing of detention order on merit will prohibit the passing of fresh order of detention on identical grounds.
14. Similarly in Chhagan Bhagwan Kahar's case (supra) the detention order was quashed on merits and not on technical grounds. In that case, the, detention order was passed under the Gujarat Prevention of Anti-Social Activities Act, 1985. In that case, the order was quashed on merits and one of the grounds which was canvassed before the Hon'ble Court was that in the earlier writ petition filed by the petitioner, the High Court quashed the earlier order of detention and the second Order has been passed by giving reference to the earlier judgment of the High Court and again he was detained. It was submitted in the return filed by the detaining authority that the detaining authority took into consideration the previous grounds of detention also to establish that the petitioner was engaged in bootlegging activities since long. In that context their Lordships of the Supreme Court observed by referring to the decisions in Hadibhandu Das and Har Jas Dev Singh as under:
It emerges from the above authoritative judicial pronouncements that even if the order of detention comes to an end either be revocation or by expiry of the period of detention there must be fresh facts for passing a subsequent order. A fortiori when a detention order is quashed by the court issuing a high prerogative writ like habeas corpus or certiorari the grounds of the said order should not be taken into consideration either as a whole or in part even along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the court strikes down an earlier order by issuing rule it nulifies the entire order.
In that case, the detaining authority has referr to the earlier detention order quashed by the High Court. The order of detention also contained fresh facts in addition to earlier grounds. Therefore, the order was 'quashed. As such that case is distinguishable. But in the present case, the situation is entirely different. In the present case, it is true that number of grounds, which have been raised in Annex. 2 were also commodity with the grounds mentioned in the earlier detention order passed under the National Security Act. But the Court had no occasion, to examine those grounds on merits and the writ petition was allowed on account of the fact that the District Magistrate had no power to issue the, order of detention. As such merits of those grounds was not gone into by this. Court.
15. Similarly in Jahangirkhan Fazalkhan Pathan's case (supra) a similar view was taken and it was held that same grounds which were cause of detention of the petitioner were reported in the second detention order. When the first order of detention was quashed by the Hon'ble Gujarat High Court. In that context, their Lordships of the Supreme Court after perusing all the papers took the view that once the High Court quashed the Order by examining those ground then on the same grounds another detention order cannot be passed. But as mentioned above this case is also distinguishable on the ground that in the present case the grounds were not held to be illegal for detention, but what was held was that the District Magistrate under the National Security Act has no power to issue the detention order. Therefore, this case is also distinguishable.
16. In Ramesh's case (supra), it was observed that the basic materials constituting subjective satisfaction in the earlier order of detention, which was quashed by the High Court considered along with other materials by the detaining authority in drawing subjective satisfaction for passing the fresh order of detention. It was held that such order cannot be sustained under the Gujarat Prevention of Anti-Social Activities Act, 1985.
17. We need not discuss the remaining authorities referred to by the learned Counsel as the same were considered by their Lordships of the Supreme Court in Chhagan Bhagwan Kahar's case (supra).
18. As against this, Mr. Joshi, learned Additional Advocate General appearing for the respondents has invited our attention to earlier cases, namely, Naranjan Singh Nathawan; Ujagar Singh; P.L. Lakhanpal; Jagdev Singh and Shivshankarlal Gupta referred to above.
19. We need not consider the earlier case in view of the latest judgment of the Hon'ble Supreme Court in N. Meera Rani's case (supra), wherein while considering the scope of Section 5A of the National Security Act, 1980 their Lordships of the Supreme Court after reviewing all the cases on the subject held that Under section 5A each ground provides a basis for detention and if one of the grounds was found to be non-existent or invalid then the whole order cannot be quashed if it can be upheld on one of the grounds. Mr. Joshi, learned Counsel for the respondents has emphasised that the argument of the learned Counsel for the petition need not be considered in view of the recent judgment of their Lordships of the Supreme Court that each ground provides an independent ground for detention. Learned Counsel has invited our attention to para 7 of the aforesaid judgment, which reads as under:
Section 5A of the Act clearly provides that the detention order Under Section 3 of the Act which has been made on two or more grounds, shall be deemed to have beep made separately on each of such grounds and accordingly such order shall not be deemed to be invalid merely because one or some of the grounds is or are invalid for any reason what so ever. It further says that the detaining authority shall be deemed to have made a detention order after being satisfied as provided in Section 3 with reference to the remaining grounds or ground. In other words, a ground of detention which is rendered invalid for any reason what so ever, shall be treated as non-existent and the surviving grounds which remain after excluding the invalid grounds shall be deemed to be the foundation of the detention order. Section 5A was inserted in the Act with effect from June 21, 1984 to overcome the effect of the decisions which has held that where one or more of the grounds of detention is found to be invalid, the entire detention order must fall since it would, not be possible to hold that the detaining authority making such order would have been satisfied as provided in Section 3 with reference to the remaining ground or grounds. It is, therefore, doubtful whether the construction of Section 5A suggested by learned Counsel for the appellant-petitioner can be accepted. How ever, in the present case, it is not necessary for us to express any concluded opinion on this point since we have reached the conclusion that the detention order must be quashed on one of the other contentions to which we shall advert later.
Learned Counsel submitted that this is recent judgment of a bench consisting of three Judges.
20. Learned Counsel has also invited our attention to the observations made in Shivshankar Lal Gupta's case (supra) where in Hon'ble Tulzapurkar, J. as he then was, observed as under:
It is clear that Section 5A will not be attracted to a case where the previous detention order has been struck down after holding each one of the grounds on which the same was based to be bad in law, that is to say, each one of the grounds was found to be either vague, non-existent, not relevant, not connected or not proximately connected with the detenu or invalid for any other reason what so ever...Though the principle of res-judicata of autrefois acquite may not strictly apply, it is clear that the principle of issue of estoppel will apply to such a case and the detenu will be entitled to plead that no fresh order of detention can be passed against him on the basis of the same grounds which had been considered by the Court to be bad and incapable of sustaining the detention order.
21. From this learned Counsel submitted that if the matter has been decided on merits in the earlier writ petition filed by the petitioner perhaps the contention of the learned Counsel for the petitioner would be sustainable. But that is not the case here.
22. We are of the opinion that the contention of Mr. Joshi appears to be correct and deserves to be upheld. It is true that the earlier writ petition was allowed on the ground that the District Magistrate Jaisalmer had no jurisdiction to pass the order of detention under the National Security Act. But no decision was given on the merits of the grounds whether the detention order can be sustained or not. Hon'ble Tulzapukar, J. in Shivshanker Lal Gupta's case (supra) has observed that though the principle of res-judicata may not be strictly applicable but the principle of estoppel would certainly apply. It will not be open for the detaining authority to repeat the same grounds for detaining the detenu when those grounds have been found to be invalid by the High Court, and the order of detention was quashed. Since in the present case, as mentioned above, the detention order was not quashed on the merits, therefore, the contention of the learned Counsel for the petitioner cannot be accepted that the second order passed by the respondents Under Section 3 of the Act of 1988 should he quashed.
23. Now, we take up the next submission of the learned Counsel that the order of detention suffers from non-application of mine.
24. Learned Counsel has submitted that non-application of mind in the present case vitiates the detention order. Learned Counsel has delt with the individual grounds and by taking the various grounds mentioned in the detention order learned Counsel submitted that they suffer from vagueness, that in some of the cases the copies pertaining to these grounds were not given, that some of the grounds do not relate to narcotic drugs and in some of the grounds the petitioner has been exonerated and likewise.
25. It is true that the grounds mentioned in the detention order should be germene to the illicit trafficking of narcotic drugs and psychotropic substances. The detention under the Act of 1988 should necessarily be founded on the basis of indulging in narcotic drugs. In this connection, our attention was invited to the grounds mentioned in the detention order Annex. 2 dated 30-5-1989. In para 1 of the detention order the back-ground has been given as to how the detenu is involved in the illicit traffic in the narcotic drugs and psychotrapic substances. The detenu belongs to Jaisalmer and he is involved in the illict traffic of various drugs coming from Pakistan through Jaisalmer border and its onward transmission to Delhi and Bombay. In fact, lately Jaisalmer has become like a fable silk route for this illegal trafficking in the drugs. Looking to its geographical conditions and difficult certain of Thar desert it has provided a sanctuary to this illicit trafficking. In sub-para(1) of para 1 number of instance have been given of Rojnamcha where a strong suspicion about the involvement of the detenu has been enumerated. These instances show that history sheets was opened of the detenu and he was kept under surveillance From time to time he was found in suspicious, circumstances. Although these suspicious circumstances relate to illicit trafficking of Charas, Heroin. It is very difficult to catch such subtle operators of clandestine illicit trafficking. If it is possible for the Government to catch them, then perhaps prosecution would have been launched against them. But looking to the subtle operations of these operators it is not possible to collect necessary material for prosecution in criminal court. The Police reports, history sheets and various Rojnamcha reports show that the detenu is involved in the illicit trafficking, on this material the authorities were satisfied that there is a strong suspicion of detenu involving in illegal trafficking then subjective satisfaction cannot be interferred by the courts sitting in certiorari jurisdiction. We may recapulate the strong observations made by the Hon'ble Chief Justice in Prakash Chandra Mehtas's case as quoted above that the courts while examining the order of detention has a very limited jurisdiction and courts cannot sit as a court of appeal. It has been observed that a pregmatic approach has to be taken while judging the detention order that, whether there is material on which the detaining authority has rightly satisfied, or not. In the present case looking to the grounds mentioned in sub-para 1 of para 1 of the grounds it appears that there are allegations against the accused that he is being involved in illicit trafficing of various drugs and on that basis the detaining authority has subjectively satisfied. In the present case, on this ground alone the detention order is justified. But since number of grounds of attack have been made by the learned Counsel, therefore, we propose to discuss them also.
26. It may be stated that in view of the decision of their Lordships of the Supreme Court in N. Meera Rani's case (supra) given by a Bench consisting of three Judges wherein Hon'ble J.S. Verma, J. has observed after surveying all the cases on the subject in para 7 as quoted above in the judgment that even if the order has been passed based on various grounds and after treating some of the grounds to be invalid or non-existent the surviving grounds remain then the order shall be deemed to have been passed on that ground alone. This was observed in connection with Section 5A of the National Security Act, 1980. We have similar provision here in the present Act of 1988 which is analogous to Section 5A of the Act of 1980 i.e. Section 6 which reads as under:
6. Grounds of detention serverable.--Where a person has bees detained in pursuance of an order of detention under Sub-section (1) of Section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly--
(a) such order shall not be deemed to be invalid or incoperative merely because one or some of the grounds is or are--
(i) vague,
(ii) not-existent,
(iii) not relevant,
(iv) not connected or not proximately connected with such person, or
(v) invalid for any other reason what so ever, and it is not therefore possible to hold that the Government or Officer making such order would have been satisfied as provided in Sub-section (1) of Section 3 with reference to the remaining ground or grounds and made the order of detention.
(b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said subsection (1) after being satisfied as provided in that Sub-section with reference to the remaining ground or grounds.
Therefore, the reasoning given in the case of Prakash Chandra Mehta (supra) is equally applicable in the present case also. Since sub-para (1) of ground 1 itself is exhaustive and copies of all the history sheets have been given to the detenu even if all other contentions of the learned Counsel are accepted then too also this sub-para (1) of ground 1 is sufficient to detain the petitioner. Learned Counsel has tried to distinguish that the question of non-application of mind and vagueness and other grounds are two different situations. Learned Counsel submitted that on account of non-application of mind the order can be quashed. It is true that if all the grounds mentioned in the order show a complete non-application of mind then the order can be quashed. But in one or two grounds if certain irrelevant factors or the irrelevant consideration which ought not to have been taken into consideration have been taken into consideration then the whole of the order cannot be quashed, in view of the provisions of Section 6 of the Act of 1988. Learned Counsel has invited our attention to ground No. 2 in which it has been stated that on 24-8-1986 a truck bearing No. RSF 1874 was seized by the Directorate of Revenue Intelligence, Zonal Unit, Bombay and 472 kgs. Heroin and 1041 kgs, Hashish were recovered and there were reports about the involvement of the detenu. But in that case the detenu was acquitted by the Collector Customs, Bombay. Therefore, learned Counsel submitted that this ground ought not to have been taken into consideration since the detenu was acquitted by the Collector Customs, Bombay. Therefore, it shows a clear non application of mind. Likewise, learned Counsel has submitted that similarly in ground No. 7 sub-ground (1) to (6) it is alleged that most of the grounds have no releations with the illicit trafficking and it has also been pointed out that these grounds related to the criminal cases involving offences like Under Sections 342, 363, 333, 120B, 147, 149 323, 341, 302, 307, 353, 333, 114 IPC under Foreign Exchange etc. It has also been mentioned that in some of the cases Final Reports have been given and in some of the, cases has been acquitted Therefore, it was submitted that all these grounds ought not to have been taken consideration On the basis of this, learned Counsel submitted that this shows the non-application of mind as well as they ace not germene to the main order of detention. It is true that the grounds mentioned in sub-grounds of ground 7 (1) to (6) do not relate to the grounds connected with illicit trafficking, but it shows the criminal tendency of detenu. These grounds have hardly anything to do with the illicit trafficking but it only gives an impression of the criminal tendency of the detenue. As already mentioned above, the grounds should be germene to the Act of 1988 and other grounds which are not germene to the Act cannot be taken into consideration for a subjective satisfaction for the attention of the detenu under the Act of 1988. But as already mentioned above if we are satisfied that sub-ground (1) of ground I itself is so potential then we need not to go into other grounds, Since the learned Counsel has raised them therefore, they Ere required to be mentioned.
27. Similarly, learned Counsel has also invited out attention to ground No.3 where in it has been pointed out that the detenu was previously involved in the illegal trafficking of ready made garments and beedies and now he has switched over to illegal trafficking of charas and heroin. II is alleged that on 24-8-1986 some heroin and charas was seized from truck No. RRQ 1365. Heroin about 198.925 kgs. was seized on 11-6-1986 and a case was registered against one Nihal Khan but he is absconding and from the record it was found that the detenu was also involved in it on the basis of the statement of one Gaji Khan son of Basant resident of Choudhariyan, in which be has said that in the heroin seized by the police from truck No. RRQ 1365 the detenu had a share in it. But it has been argued that on the day when this heroin was seized the detenu was under detention at Ajmer and he was released on 17-6-1987. Therefore, he cannot be said to be involved in this affair. It is true that there might be an allegation against the detenu but his arrest could not make much of difference because in involvement of these illicit trafficking, the physical presence of the person is not necessary. They are subtle operators and by sitting at a remote corner they can still manage their affairs through their representatives in a clandestine manner. In this connection, on the question of non-application of mind and the grounds being vague and irrelevant consideration. Learned Counsel has invited our attention to Dharamdas Sham Lal Agarwal v. Police Commissioner and Anr. . In that case, it was on served as under:
Material or vital facts regarding subsequent acquittal of detenu in two of the criminal cases mentioned in the grounds not placed before detaining authority at the time of daawing subjective satisfaction--Consequently detention order vitiated by non-application of mind.
This was a case under the Gujarat Prevention of Anti-Social Activities Act, 1985. But in view of Section 6 of the Act of 1988 that detention order cap be sustained even if one ground is valid along with other invalid and nonexistent grounds as the detention order shall be deemed to have been passed on each ground. This view has been expressed by a larger bench in the recent case of N. Meera Rani (supra) consisting of 3 Judges and the judgment was delivered by Hon'ble J.S. Verma. Therefore, this judgment being later in point of time as well as consisting of three judges is binding on us and in view of the observations made in the aforesaid judgment as quoted above, it cannot be said that, some of the grounds on which the detenu has been acquitted and the same have been mentioned in the order, the said detention order cannot be said to be illegal. On similar aspect learned Counsel has also invited our attention to State of U.P v. Kamal Kishore Sain ; and Prakash Chandra Kasliwal v. The Union of India and Ors. (1986) 2 Judicial Surveyor) In view of the latter judgment as mentioned above all the grounds mentioned by the learned Counsel regarding non-application of mind, vagueness and non-existence, the order of detention cannot be quashed.
28. Learned Counsel has also submitted that on various grounds certain copies demanded by the detenu have not been supplied and his application was rejected and as such he could not be able to make an effective representation. Learned Counsel submitted that merely because some of the documents related to secret copies of the intelligence report they were not made available to him. This argument was in relation to Article 2(5) of the Constitution of India.
29. It is true that the incumbent should be given all the relevant material which is necessary for making an effective representation by the detenu before the Advisory Board. The failure to supply the copies can some time result in depriving the detenu a reasonable opportunity to defend himself before the Advisory Board. The detenu demanded the copies on 16-6-1989 vide Annex. 4, but his application was rejected on 12-7-1989 and he was communicated of the decision vide Annex. 5. It has been observed in number of cases by their Lordships of the Supreme Court from time to time that copies which are necessary should be given to the detenu but at the same time it was also observed that it was not necessary to give all the copies of the intelligence report and gist thereof would be sufficient. Mr. Joshi, learned Additional Advocate General has invited our attention to Wasisuddin Ahmed v. District Magistrate, Aligarh, U.P. and Ors. State of Rajasthan and Anr. v. Shamsher Singh and submitted that the State is not bound to disclose the intelligence reports. Learned Additional Advocate General has invited our attention to the observations of their Lordships of the Supreme Court in Wasiuddin Ahmed (supra) which reads as under:
Under Article 22(6), the District Magistrate was, therefore, not bound to disclose the intelligence reports and it was also not necessary for him to supply the history sheet, if any. In Khudiram Das v. State of West Bengal , the Court in somewhat similar circumstances, held that the non-disclosure of the history sheet had not the effect of invalidating the order of detention Under clause (6) of Article 22 of the Constitution of India it has been clearly mentioned that nothing in clause (5) shall require an authority making an order of detention, to disclose facts which such authority considers to be against the public interest. Now in case all the copies of the intelligence report is given to the detenu then the very purpose of secrecy will be frustrated and no person will come forward to assist the administration and disclose the facts, which could not be apparently obtained. At the same time the disclosure of the sources would jeopardise the life and liberty of that man. Therefore, in order to safe-guard that secrecy and public interest the supply of intelligence report has not found favour with the courts in various decisions. After all the courts are not sitting on the orders of detention as courts of appeal. We have to by and large satisfy our-selves as to whether there exists a ground which can reasonably sustain the detention of the incumbent and there is no mala ride involved in the matter. In fact the creation of the Advisory Board Under Section 9 of the Act of 1988 was only to ensure that there is no mala fide or any victimization or any consideration other than germene to the Act. In these circumstances, the non-supply of the copies of the intelligence reports in the present case cannot be of any avail to the detenu.
30. Learned Counsel has also argued that the detenu could not exercise his right of representation before the Advisory Board properly. Learned Counsel submitted that the order was issued by the Chairman of the Advoisory Board Annex. 6 on 6-7-1989 and it was sent to the Superintendent, Central Jail, Jodhpur and the same was communicated to the detenu on 11-7 1989 vide Annex. 7 and be was taken to Jaipur for appearance before the Advisory Board on 12-7-1989 at 3.30 P.M. Learned Counsel submitted that the time kg was so short that the detenu even could not collect his thoughts properly and seek advice of any of his friend or his representative. Learned Counsel submitted that it was mentioned in the letter of the Superintendent, Central Jail that be will have to appear himself and not through any representative or counsel. This has certainly prejudiced his effective right of making representative before the Advisory Board. It is true that as per Annex. 7 it was mentioned by the Supreintendent, Central Jail, Jodhpur that he has to appear personally and not through his representative. But this fact was not stated by the Advisory Board in its communication Annex. 6. It was clearly mentioned in Annex. 6 which reads as under:
7. Shri Gazi Khan s/o Shri Jummekhan detenu, through Central Jail, Jaisalmer the detenue be initimated regarding the time, place and date of hearing. He may also be informed that if he wishes to appear before the Advisory Board to state his case he is legally entitled to do so.
In this connection, learned Counsel has invited our attention to A.K. Roy v. Union of India and Anr. , wherein it was observed as under:
To read the right of legal representation, in Article 22(5) is straining the language of that article. Clause (5) confers upon the detenu the right to be informed of the grounds of detention and the right to be afforded the earliest opportunity of making a representation against the order of detention. That right has undoubtedly to be effective, but it does not carry with it the right to be represented by a legal practitioner before the Advisory Board merely because, by Section 10 of the National Security Act, the representation made by the detenu is required to be forwarded to the Advisory Board for its consideration. If anything, the effect of Section 11(4) of the Act. which conforms to Article 22(3)(b), is that the detenu cannot appear before the Advisory Board through a legal practitioner ...If the detaining authority or the Government takes the aid of a legal practitioner or a legal advisor before the advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner ....The embargo on the appearance of legal practitioners should not be extended so as to prevent the detenu from being aided or assisted by a friend who, in truth and substance is not a legal practitioner. Every person whose interests are adversely affected as a result of the proceedings which have a serious import, is entitled to be beard in those proceedings and be assisted by a friends.
Similarly, the learned Counsel has also invited our attention to the Board of Trustees of the port of Bombay v. Dilip Kumar Raghavendranath Nadkarni and Ors. , wherein it was observed that in a domestic enquiry if the Management is represented by a lawyer or by a legally trained person then the delinquent should also be afforded a reasonable assistance may be of lawyer if situation so warrants.
31. It is true that so far as the legal proposition is concerned, in case of detention legal practitioners will normally be not permitted but in case the Advisory Board seeks assistance of a lawyer then the detenu will also be provided the services of a lawyer. But in other cases where detenu has made a representation and wishes to be personally heard then he could be called for giving him personal bearing and in a given case even the detenu can be provided with next friend to be represented. But that will depend upon case to case.
32. Mr. Joshi, learned Additional Advocate General has also invited our attention to Aijay Kumar v. Union of India and Ors. (1982) 2 SCC 57) wherein it was observed as under:
Natural justice. Examination of detenu's witesses and assistance of detenu's friend -Specific prayer regarding, must be made by detenu in proceedings before the Board and not merely in his representation to the Board--In absence of such a prayer, held, the Board cannot be said to have acted illegally and in violation of principles of natural justice in taking a decision without examining the witnesses and without assistance of detenu's friend.
It is true that by inadvertance in the order Annex. 7 it has been mentioned that he will not be entitled to any assistance from his legal representative. If the detenu would have asked for the same when he appeared before the Advisory Board, there is no reason why the Advisory Board consisting of three Hon'ble Judges of this Court could have declined him of the assistance of a friend if he so desired. In fact, the constitution of the Advisory Board consisting of three judges is an insulation against the arbitrariness. In case the detenu had made a request and if the Advisory Board felt necessary, the detenu could have been provided with the assistance. But in the present case, we find that no such request was made before the Advisory Board for seeking assistance of any friend. Therefore, in these circumstances, the argument of the learned Counsel in this regard cannot survive.
33. Lastly, learned Counsel has submitted that there was a considerable delay in disposing of the representation of the detenu. In this connection, learned Counsel submitted that the detenu had submitted his representation on 16-6-1989 to the detaining authority and this representation was rejected by the detaining authority on 11-7-1989 vide Annex. 5. As such there was a delay of 26 days. Learned Counsel has invited our representation to Smt. Khatoon Begum v. Union of India and Ors. ; Harish Pahwa v. State of U.P. and Ors. ; Rama Dhondu Borade v. V.K. Saraf, Commissioner of Police and Ors. and Prof. Khaidem Ibocha Singh Ors v. The State of Manipur and submitted that since there was unexplained delay and in view of the decisions of their Lordships of the Supreme Court, the representation Should be considered expenditiously, therefore, the detention order Should be quashed.
34. As against this, Mr. Joshi, learned Additional Advocate General submitted that it is not a hard and fast rule that the delay in every case is fatal. An additional affidavit has been filed of Shri Murlidhar, Deputy Superintendent of Police, Jaisalmer and it has been submitted that the representation submitted by the detenu on 16-6-1989 was brought through special messenger to Jaipur on 19-6-1989 as 18-6-1989 was Sunday. On 19-6-89 the representation was placed before the Assistant Secretary with the proposal that report may be called for on the representation submitted by the detenu from the District Magistrate. Jaisalmer from where the case was Sponsored for detention of the detenu Under the Act of 1988. It is also submitted that copy of the representation was also forwarded to the Advisory Board. This proposal Jaisalmer far sending his comments. The letter was received in the office of District Magistrate on 22-6-89, who collected all informations and verified all facts stated in the representation from various agencies and the comments of District Magistrate, Jaisalmer were forwarded to the State Govt. on 29-6-89. The comments were received by the State Government on 1-7-1989 and it was placed for perusal of the Assistant Secretary on 3-7-1989. The Assistant Secretary prepared a detailed note incorporating the comments of the District Magistrate on the representation submitted by the detenu and placed for perusal of the Deputy Secretary on 9-7-1989. It is also submitted that the file of the representation was forwarded to the Special Secretary (Home) who recommended on 10-7-1989 that the representation submitted by the detenu deserves to be rejected and with his note he forwarded it to the Home Secretary and the Home Secretary in turn approved it on 10-7-1989 and the same was placed before the Home Minister who approved the recommendation of the Special Secretary (Home) on 11-7-1990. The decision of the State Government was thus forwarded to the detenu by the order dated 11-7-1989 and the Advisory Board was also informed of the decision taken by the Government on the representation submitted by the detenu by the communication dated 11-7-1989-The meeting of the Advisory Board took place on 12-7-1989. It was placed before the Advisory Board along with the representation of the petitioner. From these facts, learned Counsel has submitted that it is not a case of undue delay in disposing of the presentation of the detenu. In support of the aforesaid contention, learned Counsel has also invited our attention to Raisuddin alias Babu Tamchi v. State of Uttar Pradesh and Anr. : State of Rajasthan v. Shamsher Singh ; State of U.P. v. Hari Singh Thakur and Frances Coralte Mullin v. W.C. Khambra and Ors. .
35. From the survey of thesa cases, the ratio which emerges is that since the liberty of an individual/citizen is involved, therefore, there should not be any compromise on the delay and undue negligence on the part of the State in disposal of the representation. It is no gain saying that liberty of the individual is paramount and the detention always puts a cloack on the liberty of individual and courts have always frowned upon the delays in disposing of the representation in the matter of detention. But no hard and fast rule has been laid down. Each case has been disposed of on its own merit. Where the Courts found that there is an unexplained delay then in that case detention has been quashed. But in a number of cases on being satisfied that the delay has been satisfactorily explained then in those case the Court has negatived the delay. Now from the cases which have been referred to by both the learned Counsel, it appears that no hard and fast rule has been laid down and the cases have been disposed on their individual merits.
36. In Khatoon Begum's case (supra) it has been observed as under:
The right and obligation to make and to consider the representation at the earliest opportunity is a Constitutional imperative which can not be curtailed or abridged. If the Parliament or the State Legislature making the law providing for preventive detention devises a circumlocutory procedure for considering the representation or if the interdepartmental consultative procedures are such that delay becomes inevitable, the law and the procedures will contravene the constitutional mandate. It ie essential that any law providing for preventive detention and any authority obliged to make orders for preventive detention should adopt procedures calculated towards expeditious consideration of representations made by detenue.
Similarly, in Harish Pahwa's case (supra) there was a delay of about 22 days on account of procedural problem and it was observed that in the way the matter has proceeded from table to table in the Secretariat was not satisfactory and as such the detention order was quashed.
37. Likewise in Rama Dhondu Borade's case (supra) there was an unexplained delay of 32 days and that was held in the facts and circumstances of that case to be a fatal one.
38. Likewise in Prof. Khaidem Ibocha Singh's case (supra) there was an explained delay of 17 days.
39. Therefore, the ratio of all these cases is that there should be an expeditious disposal of the representation of the detenu as individual liberty of the citizen is at stake.
40. As against this in Franch Coralie Mullin's case (supra) it has been observed as under:
The detaining authority must provide the detenue a very early opportunity to make a representation must consider the representation as soon as possible preferably before the representation is forwarded to the Advisory Board, must forward the representation to the Board before the Board makes its report and must consider the representation entirely independent of the hearing by the Board or its report, expendition being essential at every stage. How ever, the time-imperative can never be absolute or obsessive and and there has be lee-way, depending upon the necessities of the case But no allowance can be made for lethargic indifference or needless procrastination, though allowance must surely be made for necessary consulation where legal intricacies and factual ramifications are involved. The burden of explaining the necessity for the slightest departure from the time-imperative is on the detaining authority.
Similarly in Hari Singh Thakur's (supra) it has been observed that a casual in such matter should not be taken. Similar principle has been reiterated in Raisuddin alias Babu Tamch's case and Shamsher Singh's, case.
41. Thus the total analysis is that the burden is heavy on the detaining authority to explain the delay, In the present case as from the facts mentioned in the additional affidavit and referred to above, it cannot be said that there was undue lethargy or indifference. But in the present case we are satisfied that the delay has been satisfactorily explained by the respondent State and the order cannot be quashed on the ground be delay.
42. In the result, we don't find any merit in this writ petition and the same is dismissed.