Supreme Court of India
Smt. Azra Fatima vs Union Of India And Others on 12 July, 1990
Equivalent citations: 1990 AIR 1763, 1990 SCR (3) 268, AIR 1990 SUPREME COURT 1763, 1991 (1) SCC 76, 1990 CRIAPPR(SC) 320, 1990 UP CRIR 433, 1990 IJR 283, 1991 SCC(CRI) 641, 1990 (3) JT 156, (1991) 53 ELT 508, (1991) EASTCRIC 213, (1990) 2 EFR 477, (1990) 2 RECCRIR 347, (1990) 2 ALLCRILR 190, 1990 BOM LR 515
Author: N.M. Kasliwal
Bench: N.M. Kasliwal, B.C. Ray
PETITIONER:
SMT. AZRA FATIMA
Vs.
RESPONDENT:
UNION OF INDIA AND OTHERS
DATE OF JUDGMENT12/07/1990
BENCH:
KASLIWAL, N.M. (J)
BENCH:
KASLIWAL, N.M. (J)
RAY, B.C. (J)
CITATION:
1990 AIR 1763 1990 SCR (3) 268
1990 SCC (1) 76 JT 1990 (3) 156
1990 SCALE (2)8
ACT:
Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988: Section 3(1), 3(3) and
10(1)--Detention-Communication of grounds--Principle of five
days and fifteen days-Inapplicable in respect of declara-
tion.
HEADNOTE:
The petitioner filed a writ petition in the High Court
challenging the detention of her husband, Syed Ali Raza
Shafiq Mohammed, under section 3(1) of the Prevention of
Illicit Traffic in Narcotic Drugs and Psychotropic Sub-
stances Act, 1988. The detenu was then already in jail as he
was involved in a case under the Act, and his bail applica-
tion in that case had been rejected. 3"he Division Bench of
the High Court dismissed the writ petition.
Before this Court in the Special Leave Petition it was
inter-alia contended on behalf of the detenu that: (i) the
mere possibility of the detenu's release on bail was not
enough for preventive detention unless there was material to
justify the apprehension that his detention would be neces-
sary in order to prevent him from engaging in illicit traf-
ficking in narcotic drugs and psychotropic substances, in
case of his release on bail; (ii) the detention orders of
Rai Chand Shah and Jai Lal Vora, who were arrested and
detained in the same raid, having been struck down by the
High Court on the ground that the medical report in respect
of the injuries sustained by Rai Chand Shah was placed in a
truncated form before the detaining authority, the detention
order of the detenu should also be set aside as it suffered
from the same vice; (iii) though the declaration was issued
under Sec. 10(1) of the Act on 20.1.1989 but the same was
served on the detenu on 10.2.1989 after an unexplained delay
of 21 days; and (iv) there was in an inordinate and unex-
plained delay in considering the representations made by the
detenu.
On the other hand, it was contended on behalf of the
respondents that: (i) it would depend on the facts and
circumstances of each case whether a detention order was to
be passed or not in case of a person who was already in
custody; (ii) the detaining authority could take into ac-
count the nature of the antecedent activities of the detenu
in order to
269
arrive at the conclusion that it was likely that after his
release from custody he would indulge in criminal activities
and it was necessary to detain him in order to prevent him
from engaging in such activities; and (iii) in the present
case there was complete awareness in the mind of the detain-
ing authority that if he was released on bail he was likely
to indulge in the criminal activities.
Dismissing the special leave petition, this Court,
HELD: (1) The material placed before the detaining
authority and the facts mentioned in the grounds of deten-
tion clearly go to show that the detaining authority was
fully aware that the bail application filed by the detenu
had been rejected. The detaining authority was also con-
scious of the fact that the two other detenus who were
arrested and detained in the same raid had already been
released on bail. [277B-C]
(2) The antecedents of the detenu which were clear from
his own statement went to show that he was initiated in drug
trafficking in 1984 and employed as a delivery hay on Rs.30
per day and within a short span of four years had himself
started buying and selling Narcotic Drugs and amassed huge
movable and immovable properties in Bombay. In the present
raid itself hereoin and Mandrax tablets worth Rs.
1,13,42,000 were seized from the ownership and possession of
the detenu. [277C-D]
(3) The detaining authority after taking into consider-
ation the material placed before him, arrived at the conclu-
sion that the detenu being in judicial custody may under the
normal law of the land he granted bail and be in a position
to continue to pursue his nefarious activities- [277E]
(4) The detaining authority in these circumstances
considered it necessary to invoke the law of preventive
detention under the Act to prevent the detenu from indulging
in prejudicial activities in future. In these circumstances,
it cannot be said that the order of detention was illegal on
the ground that it was passed while the detenu was already
in custody- [277F]
(5) The facts and circumstances of each case have to be
taken into consideration in the context of considering the
order of detention in the case of a detenu who is already in
jail. [273G]
N. Meera Rani v. Government of Tamil Nadu, JT (1989) 3 SCR
270
478; Dharmendra Sugan Chand Chelwat v. Union of India,
[1990] 1 SCC 746; Sanjeev Kumar Aggarwal Union of India, JT
(1990) 2 SCC 62; Smt. Shashi Aggarwal v. State of U.P., JT
(1988) 1 SC 88 and Ramesh Yadav v. District Magistrate,
Etah, [1985] 4 SCC 232, referred to.
(6) A perusal of the orders of the High Court quashing
the detention orders of Rai Chand Shah and Jai Lal Vora
shows that the basis for the detention orders were their
confessional statements. The High Court in this regard had
observed that the confessional statement of Rai Chand
Shah--which also formed integral and vital part of the
grounds of detention of Jai Lal Vora--being product of
threats and injuries sustained by him and further his medi-
cal report having been placed in truncated form before the
detaining authority, their detention became invalid. But, so
far as the case of the present detenu is concerned, his
detention was based on entirely distinct and separate mate-
rials including his own confessional statements. The basis
of the grounds of detention of the present detenu is not
rounded on the truncated form of medical report of injuries
sustained by Rai Chand Shah. Thus the present detenu cannot
take advantage of any orders passed by the High Court de-
claring detention orders of Rai Chand Shah and Jai Lal Vora
as illegal. [278A-E]
(7) So far as the provision of Sub-Sec. (3) of Sec. 3 of
the Act is concerned, it clearly provides that for the
purposes of clause (5) of Art. 22 of the Constitution, the
communication to a person detained in pursuance of a deten-
tion order of the grounds on which the order has been made
shah be made as soon as may he after the detention, but
ordinarily not later than five days, and in exceptional
circumstances and for reasons to be recorded in writing, not
later than fifteen days, from the date of detention. This
provision thus relates to the communication 01' the grounds
of detention. [279B-C]
(8) The principle of five days and fifteen days as
provided in Sub-section (3) of Section 3 of the Act relating
to communication of grounds of detention cannot be applied
in respect of declaration issued under Sec. 10(1) of the
Act. [280F]
(9) There is no force in the contention that there was
an inordinate delay in considering the representations
submitted by the detenu. The High Court has given adequate
and detailed reasons in holding that the delay has been
explained by the counter affidavit filed by the respondents.
[281A-B]
271
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Special Leave Petition (Criminal) No. 2531 of 1989.
From the Judgment and Order dated 29.9. 1989 of the Bombay High Court in Criminal Writ Petition No. 87 of 1989. U.R. Lalit and Mukul Mudgal for the Petitioner. Ashok H. Desai, Solicitor General, Ashok Srivastava and Ms. Sushma Suri for the Respondents.
The Judgment of the Court was delivered by KASLIWAL, J- This special leave Petition is directed against the Judgment of the Bombay High Court dated 29th September, 1989 dismissing Criminal Writ Petition No. 87 of 1989.
Syed Ali Raza Shafiq Mohammed was detained by an order of detention passed under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Sub- stances Act, 1988 (hereinafter referred to as the Act) dated 19.12.88 by the Secretary (II) to the Government of Maha- rashtra, Home Department. The detention order and the grounds of detention were given to the detenu on 20th Decem- ber, 1988. It may be mentioned that on 19.12.88 the detenu was already in jail as his bail application had been reject- ed. The wife of the detenu filed a writ petition before the Bombay High Court challenging the detention of her husband Syed Ali Raza Shafiq Mohammed. The Division Bench of the High Court dismissed the writ petition by order dated 29th September, 1989. The wife of the detenu has now filed the present Special Leave Petition aggrieved against the Judg- ment of the Bombay High Court. Learned counsel for the petitioner raised the following submissions before us:
(1) There were no prospects of the detenu being enlarged on bail as he was involved in a case under the Act where the offence was punishable with minimum sentence of ten years.
The bail application filed on behalf of the detenu was rejected by the Metropolitan Magistrate and the detenu had not filed any application for bail either in the Sessions Court or in the High Court.
(2) That detention orders of Rai Chand Shah and Jai Lal Vora had already been struck down by the High Court on the 272 ground that the medical report in respect of the injury sustained by Rai Chand Shah was placed in a truncated form before the detaining authority. The detention order of the present detenu also suffers from the same vice and as such his order of detention should also be set aside. (3) That a declaration was issued under Sec. 10 (1) of the Act on 20th January, 1989 and the said declaration was served on the detenu after an unexplained delay of 21 days. (4) The detenu submitted a representation on 31.1.89 which was jointly addressed to the Government of Maharashtra and the Government of India and the Hon'ble Advisory Board for revocation of the impugned order of detention. The State Government rejected the representation by its reply dated 21.2.89 and the Central Government by its reply dated 3.3.89. Thus there was an inordinate and unexplained delay in considering the said representations of the detenu and this violated the right of the detenu under Art. 22(5) of the Constitution of India. The order of detention is illegal on this count also.
We shall deal with the above contentions seriatem. With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years. It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be neces- sary in order to prevent him from engaging in illicit traf- fic in narcotic drugs and psychotropic substances, in case of his release on bail. A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention. It was further contended that the de- taining authority did not apply its mind to this aspect of the matter, that the detenu was already in custody and his bail application having been rejected there was no possibil- ity of his being released on bail in a serious offence under the Act. Reliance in support of the above contention was placed on recent decisions of this Court in N. Meera Rani v. Government of Tamil Nadu & Anr., JT 1989 (3) SC 478 and Dharmendra Sugan Chand Chelwat. v. Union of India & Ors., [1990] 1 SCC 746.
273On the other hand Learned,Solicitor General contended that it would depend on the facts and circumstances of each case whether a detention order is to be passed or not in case of a person who was already in custody. An order of detention can be validly passed against a person in custody where the detaining authority was already aware of such facts and it is satisfied that the detenu is likely to be released from custody in the near future. The detaining authority can take into account the nature of the antecedent activities of the detenu in order to arrive to the conclu- sion that it is likely mat after his release from custody he 'would indulge in criminal activities and it was necessary to detain him in order to prevent him from engaging in such activities in the present case there was complete awareness in the mind of the detaining authority about the detenu being in custody and that if he is released on bail he is likely to indulge in the criminal activities. The detaining authority was not only aware that the detenu was in jail but also noted the circumstances on the basis of which he was satisfied that the detenu was likely to come out on bail and continue to engage himself in the criminal activities. It was submitted that the High Court has considered this aspect of the case and has given detailed reasons for upholding the order of detention and there is no ground or justification for interfering in the order of the High Court. Reliance in support of the above contention was placed on San jeer Kumar Aggarwal v. Union of India & Ors., JT [1990] 2 SC 62. We have given our thoughtful consideration to the argu- ments advanced by Learned counsel for the parties on the above point. The latest decision of this Court on the above point is Sanjeev Kumar Aggarwal v. Union of India & Ors., (supra) decided on 4th April, 1990 in which all the earlier cases decided by this Court have been considered including the-cases of N. Meera Rani v. Dharmendra Sugan Chand Chelwat (supra) on which reliance has been placed by the Learned counsel for the petitioner. It was observed in Sanjeev Kumar Aggarwal's case that no decision of this court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circum- stances. Therefore, the facts and circumstances of each case have to be taken into consideration in the context of con- sidering the order of detention in the case of a detenu who is already in jail. The counsel for the detenu in the above case strongly relied on Smt. Shashi Aggarwal v. State of U.P. & Ors., JT [1988] 1 SC 88 and Ramesh Yadav v. District Magistrate, Etah & Ors., [1985] 4 SCC 232 and contended that the bail application could be opposed if moved or if en- larged the same can be questioned in a higher court and on that ground the detention order should be held to be 274 invalid. The Court negatived the above contention by observ- ing that in N. Meera Rani's case a Bench of three Judges noted the above observations in Smt. Shashi Aggarwal's case and Ramesh Yadav's case and it was said that they were made on the facts of those particular cases. The Court further held in the above case that on the material relied upon by the detaining authority it could not be said that there was no awareness in the mind of the detaining authority about the detenu being in custody and that if he is released on bail he is likely to indulge in the prejudicial activities. If we examine the facts of the case before us as stated in the grounds of detention it would be clear that on the basis of specific information officers of the Narcotics Control Bureau, Bombay searched room No. G-2, Purab Paschim Apartments, Gilbert Hill Road, Munshi Nagar, Andheri (West), Bombay-58 and recovered 56 Kgs. 650 gms. of Heroin (33 Kgs. 150 gms. white and 23 kgs. 500 gms. brown) and 4000 Mandrax Tablets (Methaeualone) totally valued at Rs. 1, 13,42000 on 21.10.88.
One Mr. Syed Asgar Ali was found in the room. During the course of the search another person named Abdul Sattar Abdul Samad came on Motorcycle No. BLC 7768 Make Hero Honda and entered into the premises. Thereafter, two more persons came into the premises who gave their names as Ali Raza Shafiq Mohamed (detenu in the present case) and Thakur Singh. The Officers also searched and seized a Bajaj Scooter MAQ 169, the Motorcycle No. BLC 7768 and Fiat Car No. MMH 4348 which were parked in the compound of the said society. According to the present detenu the said three vehicles belonging to him were used for transportation of Narcotic Drugs. Telephone No. 6288769 was found installed in the prem- ises. It was subscribed by one Shirish Parikh K. 18 Azad Nagar Society, Juhu Scheme, Road No. 7, Bombay-56. The detenu disclosed that he was living in Flat No. 15, 4th Floor, Chandra Co-op. Housing Society Ltd. Dawood Baug, Andheri, Bombay-58, which was also searched on 21.10.88 but nothing incriminating was found in the flat. Telephone No. 6284105 was found installed there, which is subscribed by the detenu. The detenu also disclosed that he was having two shops (i) M/s Ali Decorators, G-I, Parag Niketan, 10th Road, Juhu, Bombay400 049 (ii) M/s Ali Decorators, Shop No. 9, A- Wing, Twin Tower, Lokhandwala Complex, Andheri (West), Bombay-58 both of which were searched on 21.10.88 and some documents were seized from the former shop. Nothing was seized from the 2nd shop.
275The statements of the detenu were recorded on 21.10.88, 22.10.88 and 7.11.88 under Section 67 of the NDPS Act, 1985. With regard to the statement given by the detenu on 21.10.88 it was mentioned as under in the grounds of detention.
"In your statement of 21.10.88 you inter-alia, stated that you have a business of Video Libraries and Marriage decora- tions; that you own the property and vehicles mentioned above; that you were initiated into drug trafficking some time in 1984 by one Anwar, owner of Anwar Star Petrol Pump Crawford Market, that in the beginning you were employed as a delivery boy on a compensation of Rs.30 per day; that you used to deliver Heroin to customers on the road side; that after sometime you started procuring Heroin from Pathans and repacking it in small packets and you used to store it in public toilets with the help of Municipal Sweepers and sell the same: that you used to buy heroin for Rs. 16,000 to 20,000 and sell it for RS. 18,000 to 25,000 per K.g. that you were making a profit of Rs.4,000 to 5,000 that your main selling points were Colaba and Nariman Point; that there were a number of brokers hovering around the above places who contact the customers; that you gave samples to brokers who showed them to the customers; that if a sample was approved and the price agreeable, then you used to ask the purchaser to meet you at some point in Juhu or Andheri or some other places, that you used to pick up the required quantity of Heroin and deliver it to the customer and col- lect the money; that initially you were storing the Heroin in your flat and later on you used to store it in the said room No. G/2, Purab Aur Paschim Apartments, Gilbert Hill Road, Andheri (W), Bombay-58. As regards the source of the Heroin and Mandrax tablets you stated that you acquired 29 kgs. of white Hereoin in instalment from one Mangal Pandey of Banaras and the remaining white hereoin from one Raichand Chandmal Shah, that 25 kgs. of Brown Heroin was purchased from one Asgar of Phulgalli, Bhendi Bazar who has since died; that you did not know the address of Mangal Pandey, that you purchased the Heroin on credit; that over the last about 31/2 years you must have sold 300 kgs. of Heroin that all the movable and immovable property acquired by you has been purchased from the profits from drug trafficking; that your income from legal business 276 of Video library and decoration is about Rs.2,000 per month."
The statement recorded on 22.10.88 as mentioned in the grounds of detention is reproduced as under:
"In your next statement of 22.10.88 you stated that because you had to make 3-4 trips to your native place and that was the reason why such a large quantity of heroin was lying with you; that you were keeping one car and two wheeler because you required them for transporting/selling of Man- drax tablets and it is advisable to use different vehicles in this business; you further stated that Abdul Sattar and your brother Syed Asghar Ali were not involved in this business and that they did not know that you are dealing in heroin; they were present in the room where heroin was seized on 21.10.88; because you had sent them to supervise masonry work"
The detaining authority further made the following observations in the grounds of detention:
"You were arrested on 22.10.88 and produced before the Additional Chief Metropolitan Magistrate (Holiday Court) on
23.10.88 who remanded you to Judicial Custody till 4.11.88 which was extended from time to time. You also filed appli- cation for bail on 21.11.88 which was rejected by the AddI. Chief Metropolitan Magistrate, 8th Court, Bombay. It may be further important. to note that in the grounds of detention the detaining authority had noted that the other detenus Shri Raichand Shah and Sh. Jailal Keshavlal Vora were already released on bail on 18.11.88 on furnishing a bail for an amount of Rs. 1,50,000 each in cash. After taking note of all the above circumstances the detaining authority made the following observations in respect of the detenu having a likelihood of being released on bail:
"It is clear that there is a ring of traffickers in heroin and Mandrax tablets in Bombay and you are a part of the ring and you have been habitually engaging yourself in posses- sion, sale, purchase, transportation and storage of narcotic drugs and Psychotropic substances. 1 am aware that you 277 are still in judicial custody but I am also aware that under the normal law of the land you may be granted bail and be in a position to continue to pursue your nefarious activities. I, therefore, consider it necessary to invoke the law of preventive detention and detain you under the PIINDPS Act, 1988 to prevent you from indulging in such prejudicial activities in future."
Thus the material placed before the detaining authority and the facts mentioned in the grounds of detention clearly go to show that the detaining authority was fully aware that the bail application filed by the detenu had been rejected by the Additional Chief Metropolitan Magistrate 8th Court, Bombay- The detaining authority was also conscious of the fact that the two other detenus who were arrested and de- tained in the same raid had already been released on bail. The antecedents of the detenu which were clear from his own statement went to show that he was initiated in drug traf- ficking in 1984 and employed as a delivery boy on Rs.30 per day Within a short span of four years the detenu himself started buying and selling Narcotic Drugs and amassed huge movable and immovable properties in Bombay. In the present raid itself heroin and Mandrax tablets worth Rs. 1, 13,42000 were seized from the ownership and possession of the detenu. Not only that the detenu was using three vehicles for trans- portation of these Narcotic drugs. The detaining authority after taking into consideration the above materials placed before him, arrived to the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities. The detaining authority in these circumstances considered it necessary to invoke the law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future. In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody It was next contended on behalf of the petitioner that the detention orders of Rai Chand Chandmal Shah and Jai lal Keshavlal Vora had already been struck down by the High Court on the ground that the medical report in respect of the injury sustained by Rai Chand Shah was placed in a truncated form before the detaining authority. It was thus argued that the detention order of the present detenu also suffers from the same vice and as such his order of deten- tion should also be set aside.
278We see no force in this' contention. We have perused the orders of the High Court quashing the detention orders of Rai Chand Shah and Jai Lal Vora. A perusal of the orders of the High Court shows that the basis for the detention orders of Rai Chand Shah and Jai Lal Vora were their confessional statements. It was alleged before the High Court that Rai Chand Shah was given a severe beating on account of which he sustained serious injuries and as such his alleged confes- sional statement should not have been made a ground of detention. The High Court in this regard observed that the confessional statement of Rai Chand Shah being product of threats and injuries sustained by him and his medical report having been placed in truncated form before the detaining authority, the certificate showing injuries in detail not having been placed before the detaining authority by the sponsoring authority, the detention became invalid. Now so far as Jai Lal Keshav Lal Vora is concerned the High Court took the view that the statements of Rai Chand Shah formed integral and vital part of the grounds of detention of Jai Lal Vora and if such important and vital part of the materi- al is obliterated and excluded it is not possible to say that the remaining material is ample and more than suffi- cient to justify the detention of Jai Lal K. Vora. The detention order of Jai Lal K. Vora was also declared ille- gal. Now so far as the case of the present detenu Syed Ali Raza Shafiq Mohd. is concerned as already mentioned above his detention is based on entirely distinct and separate materials including his own confessional statements. The basis of the grounds of detention of the present detenu is not rounded on the truncated form of medical report of injuries sustained by Rai Chand Shah. At the most it can be considered as a supplementary kind of material for the detention order of the present detenu. Thus the present detenu cannot take advantage of any orders passed by the High Court declaring the detention orders of Rai Chand Shah and Jai Lal K. Vora as illegal.
It was next contended on behalf of the petitioner that though a declaration was issued under Sec. 10(1) of the Act on 20th January, 1989 but the same was served on the detenu on 10.2.89 after an unexplained delay of 21 days. It was vehemently contended on behalf of the detenu that the detenu ought to have been served with the declaration as soon as may be after the issue of such declaration, but ordinarily not later than 5 days and in case it was not done within five days then reasons ought to have been recorded in writ- ing for explaining the delay and that also could not have been later than 15 days in any case. Learned Counsel in this regard submitted that under clause (5) of Art. 22 of the Constitution a right is guaranteed to the detenu to afford an earliest opportunity of making a representation against the order of 279 detention. It was contended that when the liberty of a citizen is taken away he ought to be afforded an opportunity of making representation at the earliest and the provisions contained in Sub-Sec. (3) of Sec. 3 of the Act should in terms also apply in the case of communicating the declara- tion issued under Sec. 10(1) of the Act.
We see no force in the above contention. So far as the provision of Sub-Sec. (3) of Sec. 3 of the Act is concerned it clearly provides that for the purposes of clause (5) of Art. 22 of the Constitution, the communication to a person detained in persuance of a detention order of the grounds on which the order has been made shah be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention. This provision thus relates to the commu- nication of the grounds of detention. In the case before us the grounds of detention were admittedly communicated on 20th December, 1988, while the detention order was of 19.12.88- Thus there is full compliance of the above provi- sion and the order of detention cannot be challenged on this ground. Now so far as the guarantee under Clause (5) of Art. 22 of the Constitution is concerned there can be no manner of doubt that the person detained under any law of preven- tive detention ought to be communicated the grounds on which the order has been made so as to afford him the earliest opportunity of making a representation against the order. The detenu was served with the grounds of detention on 20th December, 1988 and the detenu had full and ample opportunity to make a representation against the detention order. Sub- Sec. (1) of Sec. 10 of the Act reads as under:
"Notwithstanding anything contained in this Act, any person (including a foreigner) in respect of whom an order of detention is made under this Act at any time before the 31st day of July, 1990, may be detained without obtaining, in accordance with the provisions of sub-clause (a) of clause (4) of Art. 22 of the Constitution, the opinion of an Advi-
sory Board for a period longer than three months but not exceeding six months from the date of his detention, where the order of detention has been made against such person with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, and the Central Government or any officer of the Central Govern- ment, not below the rank of an Additional Secretary to that Government, specially empowered for the 280 purposes of this section by that Government, specially empowered for the purposes of this section by that Govern- ment, is satisfied that such person engages or is likely to engage in illicit traffic in narcotic drugs and psychotropic substances into, out of, through or within any area highly vulnerable to such illicit traffic and makes a declaration to that effect within five weeks of the detention of such person."
In the counter affidavit filed before this Court it has been stated in para (L) as under:
"Regarding the declaration, it may be stated that the same was dispatched by the Ministry of Finance on 20.1.1989 to the Home Secretary, Government of Maharashtra, Bombay, Maharashtra Government forwarded it to NCB, Bombay which was received in the NCS office on 1.2.89 from the State Govern- ment. It was then sent for translation, 4th and 5th Febru- ary, being holidays (being Saturday and Sunday) the declara- tion was dispatched on 6.2.89. It was received by the Jail authorities on 10.2.1989 and served on the detenu same day."
Thus the declaration had been made in this case on 20.1.89 by the Ministry of Finance within the statutory period of five weeks of the detention and the period taken in serving the same on the detenu on 10.2.89 has been sufficiently explained. The detenu was lodged in Central Prison Bombay and the Advisory Board had fixed a date on 23.2.89 and as such the detenu had ample opportunity to challenge the declaration. The High Court has also gone in detail in dealing with this aspect of the matter, and we agree with the finding recorded by the High Court. The principle of five days and fifteen days as provided in Sub-Section (3) of Section 3 relating to communication of grounds of detention cannot be applied in respect of declaration issued under Sec. 10(1) of the Act. In the facts and circumstances of this case we are fully satisfied that the detenu has not been denied any opportunity of making any effective repre- sentation against the declaration issued under Sec. 10(1) of the Act.
The last submission made on behalf of the detenu is that the detenu had submitted a representation on 31.1.89 jointly addressed to the Government of Maharashtra, the Government of India and the Advisory Board. The State Government re- jected the representation 281 by its reply dated 21.2.89 and the Central Government by its reply dated 3.3.89. It was thus contended that there was an inordinate and unexplained delay in considering the said representations and this is violative of the right of the detenu conferred under Clause (5) of Art. 22 of the Consti- tution- The point should not detain us any longer as we fully agree with the finding of the High Court, recorded in this regard. The High Court has given adequate and detailed reasons in holding that the delay has been explained by the counter affidavit filed by the respondents. Thus we find no force in this ground of the detenu that his representations were disposed of after an inordinate and unexplained delay. As a result of the above discussion, we find no force in this petition and it is accordingly dismissed.
Petition dismissed.
R.S.S. 282