Ammini Jose v. Government Of Kerala — 1995 DIGILAW 8 (KER)

Judgment :- THOMAS, J. Petitioner's husband is under detention now pursuant to a detention order passed by the Government of Kerala under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short the Act) on 19-7-1993. Petitioner's husband (hereinafter referred to as the detenu) was taken into custody on 27-7-1993, but he escaped from it on 29-12-1993. However, the authorities nabbed him again and he is now in detention. It appears that the representation made by the detenu was rejected by the Government. Now his wife has filed this Original Petition for a writ of habeas corpus on the ground that the detention is unlawful. 2. The following is the short summary of the facts which led to the detention order : Superintendent of Customs searched one of the rooms of a tourist house at Thiruvananthapuram and recovered two packets of 'Hashish Oil' from underneath a mattress. They came to know after interrogation of the occupant of the room that detenue was involved in the dealings related to the contraband. A search was thereupon made in the hotel in which detenu was checked in. The Customs Officials interrogated the detenu and his co-occupant and their statements were recorded. They disclosed to the officials how the 'Harish Oil' was procured. On such disclosure the officials arrested the detenu and his companion. Detenu was, however, released on bail on 27-2-1993. The detention order (Ext. P1) was passed thereafter. 3. Mainly three points have been urged by the learned counsel for the petitioner for establishing his case that detention of the detenu is unlawful. They are : (1) There was no application of mind of the detaining authority, which is evident from a transparent discrepancy as between the detention order and the grounds set forth in support thereof. (2) Grounds for detention are unsupported by materials. (3) The Detaining Authority (The Government of Kerala) was not in fact satisfied that detenu was engaging in illicit traffic in narcotic drugs and psychotropic substances. 4. The first point was sought to be made out on the basis of a seeming discrepancy as between Ext. P. 1 detention order and Ext. P3 (grounds of detention). In Ext. (3) The Detaining Authority (The Government of Kerala) was not in fact satisfied that detenu was engaging in illicit traffic in narcotic drugs and psychotropic substances. 4. The first point was sought to be made out on the basis of a seeming discrepancy as between Ext. P. 1 detention order and Ext. P3 (grounds of detention). In Ext. P1 the detention order was passed on the premise that Government of Kerala is satisfied that with a view to preventing the detenu from engaging in illicit traffic in narcotic drugs and psychotropic substances it is necessary to make an order directing him to be detained. But what is stated in Ext. P. 3 is this. "It is therefore reasonably apprehended that you will continue to engage in illicit traffic in narcotic drugs as defined under Section 2(e)(iii) read with sub-clause (2) of Section 2(e)(v) of the Act." The contention is that even though the authority was not satisfied that the detenu was trafficking in psychotropic substances, the Government passed the decision order on the wrong assumption that he was doing that also. 5. Narcotic Drug is defined in Section 2(xiv) of the Narcotic Drugs and Psychotropic Substances Act (for short the NDPS Act) as "coca leaf, cannabis, opium poppy straw and includes all manufactured drugs." "Manufactured drug" is defined in Section 2(xi). There is no dispute that 'Hashish Oil' would fall within the ambit of the definition of 'Narcotic Drug'. The definition of Psychotropic Substance (Section 2(xxiii) shows that none of the items which is a narcotic drug is a psychotropic substance. So the argument appeared, at the first blush, forceful that when the detaining authority mentioned that the detenu was indulging in illicit traffic in both categories of articles but in fact he was not trading in one of them, there could have been non-application of the mind of the detaining authority. But when we read the definition of "illicit traffic in relation to narcotic drug and psychotropic substances" as it appears in Section 2(e) of the Act, we are convinced that if a person engages in illicit traffic in either narcotic drugs or psychotropic substances, it is called in law "illicit traffic in relation to narcotic drugs and psychotropic substances." The conjunctive expressions used in Ext. P. 1 (illicit traffic in narcotic drugs and psychotropic substances) seems to have been borrowed from the Act itself. P. 1 (illicit traffic in narcotic drugs and psychotropic substances) seems to have been borrowed from the Act itself. Even if a person engages himself in illicit traffic only in psychotropic substances or only in narcotic drugs, he could still be called in law as a trafficker in narcotic drugs and psychotropic substances. Further again, if a person engages himself in illicit traffic in both substances, then also it can be termed illicit traffic in narcotic drugs and psychotropic substances. 6. We are, therefore, not inclined to accept the first point raised by the learned counsel for the petitioner. 7. As for the second point, learned counsel for the petitioner invited our attention to the following statements made by the Secretary to the Government in the "Grounds" of detention : "Even though Criminal prosecution proceeding against you is pending decision in the jurisdictional Court of law, ........" It is contended that a satisfaction formed on the basis of a fallacious assumption cannot sustain the detention order because no prosecution proceedings has in fact been commenced so far against the detenu. 8. It is true that prosecution proceedings would commence formally only with the taking of cognizance of the offence. Since the Customs Officials had not filed any complaint before the Court till the date of the detention order, no Court had occasion to take cognizance of the offence. But the fact cannot be overlooked that the detenu was arrested in connection with an offence and criminal proceedings have been commenced with that, even though such proceedings may not amount to 'Prosecution Proceedings'. But when the Secretary to Government used the expression 'Criminal Prosecution Proceedings' he would certainly have had in mind the criminal proceedings initiated against the detenue. So, we are not persuaded to interfere with the detention order for that reason either. 9. The third point is built up on the following materials. Though Ext. P. 1 detention order was passed stating that "the Government of Kerala is satisfied" that it is necessary to pass the detention order, the grounds of detention appended to the order (ext. P3) show that Sri. C. P. Nair (Commissioner and Secretary to Government - Home) was satisfied that such a detention is necessary. Though Ext. P. 1 detention order was passed stating that "the Government of Kerala is satisfied" that it is necessary to pass the detention order, the grounds of detention appended to the order (ext. P3) show that Sri. C. P. Nair (Commissioner and Secretary to Government - Home) was satisfied that such a detention is necessary. It is contended that there was no governmental satisfaction, but it was only a person's satisfaction which is insufficient to detain a citizen of India as a preventive measure eroding into his fundamental rights. 10. Section 3 of the Act (material portion) is following : "The Central Government or a State Government, or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government or any officer of a State Government not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner) that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary so to do, make an order directing that such person be detained." Under the Section any one of the four authorities can pass the detention order, (1) Central Government, (2) Any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for this purpose, (3) State Government (4) Any officer of the State Government, not below the rank of a Secretary to the Government specially empowered for this purpose. It is averred in the Original Petition that Sri C. P. Nair, Commissioner and Secretary to Government has not been specially empowered by the State Government to pass the detention order under Section 3 of the Act. That averment does not seem to have been controverted. Even otherwise, the fact is that the detention order as against this detenu was passed by the State Government and not by any officer. 11. That averment does not seem to have been controverted. Even otherwise, the fact is that the detention order as against this detenu was passed by the State Government and not by any officer. 11. Learned Government Pleader contended that the satisfaction entered by the Secretary was not his personal satisfaction but it was the satisfaction of the Government as governmental work was allocated to him in accordance with the 'Rules of Business' made by the Governor of Kerala in exercise of the power under Article 166(3) of the Constitution of India. Now we will consider that argument. 12. As per Rules 22 of the "Rules of Business" so made, every minister in charge of the department is empowered to issue directions, by means of Standing Orders, for disposal of cases in the department concerned. However, Rule 23 provides that the minister concerned can make arrangements with the Secretary concerned as to the matters which are to be brought to his personal notice. One such Standing Order is dated 29-11-1988 and it reads thus :- "Chief Minister is pleased to delegate the following powers to the Secretary to Government. Home Department, under Rules 22 and 23 of the Rules of Business of the Government of Kerala :- 'To pass the detention orders under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (Central Act 46 of 1988)'". 13. We must point out that validity of the said Standing Order has not been questioned before us. A larger Constitution Bench of the Supreme Court has held in Samsher Singh v. State of Punjab, AIR 1974 SC 2192, that the official is the machinery for the discharge of the function of the Government and Governor making Rule under Article 166(3), can, apart from allocating the various steps among Ministers, further designate the particular function or other administrative decisions to be taken by the civil servant. "The Minister lays down the policies. The Council of Ministers would settle the major policies. When a civil servant takes a decision, he does not do it as a delegate of the Minister. He does it on behalf of the Government. The officers are the limbs of the Government and not his delegates". The Constitution bench was upholding the principles laid down in two earlier decisions of the Supreme Court. When a civil servant takes a decision, he does not do it as a delegate of the Minister. He does it on behalf of the Government. The officers are the limbs of the Government and not his delegates". The Constitution bench was upholding the principles laid down in two earlier decisions of the Supreme Court. A Sanjeevi v. State of Madras, AIR 1970 SC 1102 and Ishwarlal v. State of Gujarat, AIR 1968 SC 870. The position is thus un-assailable now that Government functions can be discharge by the officials to whom the business is allocated in such manner as the government deems necessary. The Governmental functions cannot be performed dehors human agency. Thus the Home Secretary of Government of Kerala while considering the case of the petitioner was, without doubt, exercising the powers of the government. The satisfaction arrived at by him is not merely personal satisfaction (Sic) of the official. It is one way of government reaching the satisfaction and when government declared so in the detention order, the satisfaction reached by the officer secured the official imprimatur of the government. 14. Even that apart, when government had notified in Ext. P1 that Government is satisfied of the grounds, there can be a presumption in favour of regularity of official acts and such presumption cannot be rebutted by merely pointing out that the Secretary concerned has reached the satisfaction. At any rate the satisfaction expressed by the Home Secretary in Ext. P3 is evidence of governmental exercise in reaching the satisfaction. So the expression in Ext. P3, instead of rebutting the presumption, would further bolster up the presumption. We may observe that the petitioner could not rebut the presumption. We find it difficult to interfere with the detention order on any one of the three grounds urged before us. The original petition is accordingly dismissed. Petition dismissed.