1990 (7) TMI 253 - SC - Indian Laws

Whether a detention order is to be passed or not in case of a person who was already in custody? Held that - The detaining authority was also conscious of the fact that the two other detenus who were arrested and detained 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 trafficking in 1984 and employed as a delivery boy on ₹ 30/- per day and 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 ₹ 1,13,42,000/- were seized from the ownership and possession of the detenu. Not only that the detenu was using three vehicles for transportation 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. 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. 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 representation against the declaration issued under Sec. 10(1) of Act As 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. Appeal dismissed.

Issues Involved:
1. Prospects of the detenu being enlarged on bail.
2. Similarity with the detention orders of Rai Chand Shah and Jai Lal Vora.
3. Delay in serving the declaration under Section 10(1) of the Act.
4. Delay in considering the detenu's representation.

Issue-wise Detailed Analysis:

1. Prospects of the detenu being enlarged on bail:

The petitioner argued that there were no prospects of the detenu being released on bail since he was involved in a case under the Act where the minimum sentence was ten years. The detenu's bail application had already been rejected, and no further bail application was filed. It was contended that preventive detention requires more than a mere possibility of release on bail; there must be material justifying the apprehension that the detenu would engage in illicit activities if released. The detaining authority did not apply its mind to the fact that the detenu was already in custody, and his bail application had been rejected. The court referred to precedents, including N. Meera Rani v. Government of Tamil Nadu and Dharmendra Sugan Chand Chelwat v. Union of India, to support this argument.

The Solicitor General countered that the validity of a detention order for a person already in custody depends on the facts and circumstances of each case. The detaining authority must be aware of the detenu's custody status and be satisfied that the detenu is likely to be released and would engage in criminal activities. The court cited Sanjeev Kumar Aggarwal v. Union of India, which held that no decision has ruled out the possibility of a valid detention order against a person in custody under any circumstances.

The court concluded that the detaining authority was fully aware of the detenu's custody status and the likelihood of his release on bail. The detaining authority noted the detenu's involvement in narcotic trafficking and the seizure of heroin and Mandrax tablets worth Rs. 1,13,42,000/-. The authority concluded that preventive detention was necessary to prevent the detenu from engaging in prejudicial activities. Thus, the detention order was not illegal on this ground.

2. Similarity with the detention orders of Rai Chand Shah and Jai Lal Vora:

The petitioner argued that the detention orders of Rai Chand Shah and Jai Lal Vora were struck down by the High Court due to the truncated medical report of Rai Chand Shah's injuries. Therefore, the detention order of the present detenu should also be set aside.

The court found no merit in this contention. The High Court quashed the detention orders of Rai Chand Shah and Jai Lal Vora because their confessional statements were based on threats and injuries, and the medical report was not fully presented to the detaining authority. However, the present detenu's detention was based on distinct and separate materials, including his own confessional statements. The truncated medical report of Rai Chand Shah was not a basis for the present detenu's detention. Therefore, the present detenu could not benefit from the High Court's orders regarding Rai Chand Shah and Jai Lal Vora.

3. Delay in serving the declaration under Section 10(1) of the Act:

The petitioner contended that the declaration under Section 10(1) of the Act was served on the detenu after an unexplained delay of 21 days. The detenu should have been served with the declaration within five days, and reasons for any delay should have been recorded in writing within fifteen days.

The court rejected this contention. The grounds of detention were communicated to the detenu on 20th December 1988, complying with Section 3(3) of the Act. The declaration under Section 10(1) was made on 20th January 1989 and served on the detenu on 10th February 1989. The delay was sufficiently explained in the counter affidavit, stating the process of forwarding and translation. The court agreed with the High Court's finding that the detenu was not denied an opportunity to make an effective representation against the declaration.

4. Delay in considering the detenu's representation:

The petitioner argued that there was an inordinate and unexplained delay in considering the detenu's representation submitted on 31st January 1989. The State Government replied on 21st February 1989, and the Central Government replied on 3rd March 1989, violating the detenu's right under Article 22(5) of the Constitution.

The court found no merit in this argument. The High Court had provided adequate and detailed reasons, supported by the respondents' counter affidavit, explaining the delay. The court agreed with the High Court's finding and dismissed this ground.

Conclusion:

The court found no force in the petition and accordingly dismissed it.

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