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2007 (9) TMI 681 - SC - Indian Laws

Issues Involved:
1. Denial of Constitutional right to be represented before the Advisory Board.
2. Delay in disposal of representation dated 26th May, 2000.
3. Validity of the detention order while the appellant was in judicial custody.

Summary:

1. Denial of Constitutional Right to be Represented Before the Advisory Board:
The appellant contended that his Constitutional right to appear before the Advisory Board was denied, as neither he nor his advocate could appear due to delayed communication. The High Court rejected this contention, and the Supreme Court upheld this decision, noting that the appellant was aware of the Advisory Board meeting date in advance and had advised his counsel to attend. The Court found no merit in the claim that the communication was ante-dated or that the appellant was deprived of his right to representation.

2. Delay in Disposal of Representation Dated 26th May, 2000:
The appellant argued that his representation based on fresh facts should have been disposed of promptly, but there was a delay of 40 days. The Supreme Court acknowledged the delay but distinguished between the illegality of further detention and the validity of the original detention order. The Court cited previous judgments, including Meena Jayendra Thakur Vs. Union of India, to assert that a subsequent infraction does not vitiate the original detention order.

3. Validity of the Detention Order While the Appellant was in Judicial Custody:
The appellant argued that the detention order was mechanically passed without considering that he was in judicial custody and unlikely to be released on bail due to Section 37 of the NDPS Act. The Supreme Court emphasized the necessity for the detaining authority to consider the likelihood of the appellant being released on bail and engaging in illicit activities. The Court found that the detaining authority had not adequately justified the likelihood of the appellant's release on bail, as required by law. The Court referred to several precedents, including Amritlal & Ors. vs. Union Govt. and Dharmendra Suganchand Chelawat & Anr. Vs. Union of India & Ors., to highlight the need for proper application of mind by the detaining authority.

Conclusion:
The Supreme Court concluded that the detention order could not be sustained due to the failure of the detaining authority to properly consider the likelihood of the appellant being released on bail. The appeal was allowed, and the impugned judgment was set aside.

 

 

 

 

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