9911796707
TMI Blog1990 (5) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... Isamuddin @ Anand be detained and kept in custody in the Yervada Central Prison, Pune. The grounds of detention were also served on the same day i.e. February 15, 1990 immediately after his arrest by the Customs Authorities. On July 19, 1989 the staff of the Preventive Collector- ate Customs, Bombay impounded two fiat cars bearing Nos. GJV 5440 and MHY 2625. The drivers of the said cars namely Aslam Mohammad Nazir and Mohammad Yakub Sheikh were apprehended. On search of the two cars, 100 packets of brown coloured powder purporting to be narcotic drug of Pakistan origin was found out of the dickies of the cars. The narcotic drug recovered from the dickies of the said cars weighed 100 kgs. and its value in the market is about 2.34 crores. Car No. GJV 5440 belonged to the petitioner-detenu, Syed Farooq Mohammad and the other car No. MHY 2625 belonged to one C.P. Reddy, an Officer of international airport who was also apprehended and his statement u/s 108 of the Customs Act was recorded. It was revealed from his statement that this car was also used for transporting heroin along with petitioner's car. The statements of Aslam Mohammad Nazir and Moham- mad Yakub Sheikh who were appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him on 4-5 occasions and he received ₹ 5,000 each time from Hameed. From the statement of Hameed recorded by the Customs Officials, it appears that on July 19, 1989 afternoon he collected two drivers namely Aslam Mohd- Nazir and Mohd. Yakub Sheikh and two fiat cars from Farooq of Bombay Central. This Farooq was introduced to him by Mohd. Nasir, a narcotic drug dealer who is now detained m' Rajasthan in connection with a drug case. The detaining authority searched the residence of the detenu on July 20, 1989 but nothing incriminating could be found therefrom. After recording the statements of these persons and examining and considering the test reports dated October 13, 1989, September 29, 1989 and November 15, 1989 which mentioned that the brown powder contained in those 100 packets is narcotic drug coming within the Narcotic Drugs and Psychotropic Substances Act, the impugned order of detention was made on December 20, 1989 and the petitioner was arrested and detained on service of the order of detention on February 15, 1990. The challenge to the detention order had been made in the instant writ petition principally on four grounds which are as under: (1) The impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch has been seized from the dickies of the two cars. This contention of the learned counsel is totally devoid of merit in as much as the statements of these three persons as recorded by the Customs Officials u/s 108 of the Customs Act clearly implicate the petitioner who knowing fully that these two cars will be used for the purpose of transportation of prohibited drugs i.e. heroin and for selling of the same, handed over the keys of the two cars to the said two drivers who were sitting at his residence with Hameed on the asking of Hameed for carrying the contraband goods. In these circumstances, it is meaningless to argue that the statements of these three persons did not implicate the petitioner. All the aforesaid three persons were well known to the petitioner and were sitting at the petitioner's residence, they were given the keys of the petitioner's car as well as the keys of the car of C.P. Reddy which was brought to his garrage for repairs by one Ravi Poojari through whom C.P. Reddy sent his car for repairs. The petitioner knowing fully well that these two cars will be used for the purpose of transporting contraband goods i.e. heroin from the truck stationed at Kali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considering all these, passed the order of detention on December 20, 1989. In these circumstances, it cannot be said that the delay of five months in making the impugned order of detention rendered the detention illegal and bad as it was made on stale ground. The detention order has been made with promptitude considering the relevant and vital facts proximate to the passing of the impugned order of detention. This ground of challenge is, therefore, totally unsustainable. The third ground of challenge is that the relevant document i.e. bail application of the petitioner and order made there on which might have been considered by the detaining authority were not supplied to the petitioner and as such his right of making effective representation guaranteed under Article 22(5) of the Constitution of India has been seriously prejudiced. This ground is without any substance because firstly there is nothing to show from the grounds of detention that the rejection of this bail application by the Sessions Judge, Greater Bombay on January 5, 1990 was considered by the detaining authority before passing the impugned order of detention and as such this being not referred to in the grounds of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ict Magistrate, Dhanbad, Bihar and Ors., [1986] 3 SCR 905. Wherein the detenu was served with the order of detention u/s 3(2) of the National Scurity Act while he was in jail custody in connection with the criminal charge u/s 302 I.P.C. The question arose whether in such cases where the detention order which was passed before the detenu surrendered before the Court and was taken into custody in a criminal case, should be served on the detenu after he has surrendered in the criminal case and was in jail as an under-trial prison- er. It has been held by this Court that: " ..... the power of directing preventive detention given to the appropriate ,authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised ..... " This ruling as well as the ruling in Suraj Pal Sahu v. State of Maharashtra a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Criminal Procedure. It has been urged in this connection that this unusual delay in arresting the petitioner shows that there was no real and genuine apprehension in the mind of the detaining authority regarding the necessity of detention of the petitioner and as such continued detention of the petitioner is illegal and contrary to law. It is apropos to refer in this connection to the averments made on behalf of the respondents in para 7 of the counter-affidavit. It has been stated therein that the Department served two notices, one of which was accepted by his mother and the second by his brother, Nizamuddin for handing over the same to the petitioner, as the petitioner was not available in the house. It has been submitted that the petitioner deliberately avoided making himself available to the Department and thus delayed completion of investigation of the case. Instead of appearing before the Department, the petitioner applied to the Sessions Judge for anticipatory bail which was rejected on 5.1.1990. Thereafter, the petitioner approached this Court for anticipatory bail, which was granted on 22.1.1990. It is, therefore, evident that the petitioner absconded and tried to evade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id of any merit. It has also been submitted on behalf of the petitioner that the representation made by the detenu on February 28, 1990 both to the Chairman, Advisory Board as well as to the Central Government were not disposed of till March 29, 1990 when the said representation was rejected by the Central Government. It has been submitted that this long delay of one month made the continued detention of the petitioner invalid and illegal. The counsel for the respondents has produced before this Court the relevant papers from which it is evident that after receipt of the representation of the petitioner, it was sent to the detaining authority for his comments and immediately after the comments of the detaining authority were received the same were processed and put up before the Minister concerned who rejected the representation after considering the comments of the detaining authority and the State Government. It has been urged on behalf of the petitioner that the comments were not duly considered. This submission is not at all tenable in as much as it is evident from the relevant papers produced before this court that the Central Government passed the order after considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
