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Issues Involved:
1. The petitioner was already in custody under the NDPS Act when the detention order was passed. 2. Some documents relied upon by the detaining authority were not supplied to the petitioner. 3. Despite a specific request in the representation dated 17.06.2010, the documents were not supplied. 4. There was inordinate and unexplained delay in passing the detention order. 5. The grounds of detention did not indicate any prejudicial activities after the petitioner returned to India on 24.05.2009. Issue-wise Detailed Analysis: Re: Maintainability The court examined whether the detention order under COFEPOSA merges with the Advisory Board's opinion and the confirmatory order under section 8(f). It was concluded that the detention order does not merge with the Advisory Board's opinion or the confirmatory order. The Advisory Board provides a constitutional safeguard and does not function as an appellate body. The court cited various precedents, including Vijay Kumar v. Union of India and State of Madras v. Madurai Mills Co. Ltd., to explain that the doctrine of merger is not applicable here. The court affirmed that the detention order could be challenged under Article 226 of the Constitution. Point No.1: The petitioner was already in custody under the NDPS Act when the impugned detention order was passed The court acknowledged that a detention order can be validly passed against a person already in custody if the detaining authority is aware of the custody and there are compelling reasons justifying the detention. The court cited Dharmendra Suganchand Chelawat v. Union of India and Kamarunnissa v. Union of India to outline the requirements for such detention orders. It was found that the detaining authority was aware of the petitioner's custody and the imminent possibility of his release on bail. Therefore, the detention order was justified. Point No.2: Some documents which had allegedly been relied upon by the detaining authority had not been supplied to the petitioner The court observed that non-supply of documents relied upon by the detaining authority impairs the detenu's right to make an effective representation. The court referred to M. Ahamedkutty v. Union of India, which emphasized that failure to furnish such documents is a denial of the right to make an effective representation. It was found that the documents mentioned in paragraph 52 of the grounds of detention were not supplied to the petitioner, which was fatal to the continued detention. Point No.3: Despite a specific request having been made in the representation dated 17.06.2010, the documents had not been supplied The court noted that the petitioner's representation specifically requested the documents, but they were not supplied. This non-supply of requested documents further impaired the petitioner's right to make an effective representation. The court concluded that this was another ground making the continued detention illegal. Point No.4: There was inordinate and unexplained delay in the passing of the detention order The court examined the steps taken by the respondents and found that the processing of the detention order involved several rounds of meetings and discussions, which were reasonable given the complexity of the case. The court cited Rajendrakumar Natvarlal Shah v. State of Gujarat and Ahamedkutty to explain that some delay in passing a detention order is permissible if it is justified. The court concluded that there was no inordinate or unexplained delay in this case. Point No.5: The grounds of detention did not indicate any prejudicial activities after the petitioner returned to India on 24.05.2009 The court found that the grounds of detention did indicate prejudicial activities of the petitioner after his return to India. The first paragraph of the grounds of detention clearly mentioned that the petitioner continued his illegal activities post-May 2009. Therefore, this plea was found to be untenable. Conclusion: The court concluded that the continued detention of the petitioner was illegal due to the non-supply of relied-upon documents and the failure to provide requested documents. The petition was allowed to this extent, and the respondents were directed to set the petitioner at liberty forthwith unless he was required to be in custody in some other case.
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