Kashi Nath Tiwary v. Union Of India — 1999 DIGILAW 525 (PAT)

Judgment S.K.Katriar, J. 1. This is a petition under Article 226 of the Constitution of India, wherein the sole petitioner seeks quashing of the order of his detention, dated 21.5.1998 (Annexure-C to the counter-affidavit), whereby he has been detained under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as the Act), and prays for the consequential relief of being set at liberty by a writ of habeas corpus. 2. On the basis of secret information, the respondent-authorities had raided the residential premises of one Radhey Shyam Sao at Stoowarganj, Mohania, on 27.11.1997 at 15.00 hours, and found one person trying to escape, who was intercepted and arrested. He turned out to be the present petitioner. The premises of the said Radhey Shyam Sao was searched and 76 kgs. of ganja packed in two gunny bags of 39 kgs. and 37 kgs. each was recovered. A photocopy of the recovery memo, dated 27.11.1997 is Annexure-A to the counter-affidavit. The petitioner was examined under Section 67 of the Act, and in his voluntary statement on 27.11.1997, admitted recovery of the aforesaid 76 kgs. of ganja from his possession which he had brought from village Masarah along with the said Radhey Shyam Sao which was kept in the said premises for sale. He had also stated in the said statement that he had been arrested by Mohania Police Station in October 1996, in a similar offence under the Act, and was lodged in Sasaram Jail, Photocopy of the petitioners statement is Annexure-B to the counter-affidavit of the respondents. The previous case was registered as NDPS Case No. 155 of 1996, and the trial is pending. 3. The petitioner was in the present case arrested on the spot on 27.11.1997, was produced in the Court of learned Sessions Judge, Sasaram, on 28.11.1997, and was remanded to judicial custody. He was in judicial custody from 27.11.1997 and was ultimately granted bail by this Court by order, dated 31.8.1998, passed in Cr. Misc. No. 15362 of 1998. A complaint petition with respect to the present allegations was filed against the petitioner herein the Court of the learned Sessions Judge, Sasaram, on 16.1.1998 (Annexure 2 to the writ petition), and cognizance was taken under Sections 8, 20(b)(i), 25, 27-A and 29 of the Act. Misc. No. 15362 of 1998. A complaint petition with respect to the present allegations was filed against the petitioner herein the Court of the learned Sessions Judge, Sasaram, on 16.1.1998 (Annexure 2 to the writ petition), and cognizance was taken under Sections 8, 20(b)(i), 25, 27-A and 29 of the Act. As stated above, the bail application of the petitioner was twice rejected by the learned Sessions Judge, Sasaram, and he was ultimately released by orders of the High Court. On the basis of the complaint petition pending in the Court of Sessions Judge, Sasaram, which has been registered as NDPS Case No. 5 of 1997, it is manifest that a substantive case with respect to just the same occurrence and just the same allegations under the Act is already pending against the petitioner herein, and the present detention order impugned herein is on the self-same facts. 4. On the basis of the aforesaid materials, the Joint Secretary, Ministry of Finance, Department of Revenue, Govt. of India, was pleased to order for detention of the petitioner, vide order No. 801/98 PITNDPS, dated 21.5.1998, which also incorporated the grounds of detention. A copy of the same is marked Annexure C to the counter-affidavit. According to the respondents, a copy of the same was served on the petitioner on 1.6.1998 through the Superintendent of the District Jail, Sasaram, along with the translated copies of the detention order in Hindi, a language known to the petitioner, and proper acknowledgment was obtained from the petitioner himself on every page of the detention order. The petitioner submitted a representation to the Advisory Board against the detention order which was rejected by the Advisory Board, and the detention order was approved. This position is manifest from a copy of the order, dated 3.8.1998, marked Annexure 3 to the writ petition. By his order the detaining authority took note of the order of approval of the Advisory Board and passed order under Section 9(f), read with Section 11 of the Act, detaining the petitioner herein for a period of one year with effect from 1.6.1998. By his order the detaining authority took note of the order of approval of the Advisory Board and passed order under Section 9(f), read with Section 11 of the Act, detaining the petitioner herein for a period of one year with effect from 1.6.1998. The text of the said detention order, dated 3.8.1998 is set out herein-below for the facility of quick reference : Wherean as order F. No. DO 1/5/98 PITNDPS, dated 21.5.1998 has been passed by the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue under Section 3(i) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 for the detention of Shri Kashi Nath Tewary S/o Late Shri Ram Dal Tewary. And whereas the case of Shri Kashi Nath Tewary S/o Late Ram Dal Tewary was placed before the Advisory Board, who are of the opinion that there is sufficient cause for his detention. And whereas the Central Government has fully considered the report of the Advisory Board and material on records. Now, therefore, in exercise of the powers conferred by Section 9(f) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, the Central Government hereby confirms the aforesaid detention order and further directs that under Section 11 of the said Act the said Shri Kashi Nath Tewary S/o Late Ram Dal Tewary be detained for a period of one year from the date of his detention i.e., from 1.6.1998. Sd/- (R.K.Guptan) Under Secretary to the Government of India Shri Kashi Nath Tewary S/o Late Ram Dal Tewary C/o The Superintendent, Central Jail Buxar (Bihar) 5 There is no material on record to indicate that any action at all has been initiated against the said Radhey Shyam Sao. 6. The respondents have filed a counter-affidavit sworn by the Joint Secretary (NC), Ministry of Finance, Department of Revenue, Govt. of India. 7. On these facts, Mr. Rajesh Kumar Singh, learned counsel for the petitioner, submitted that the respondent-authorities have quite arbitrarily, unreasonably, and illegally started a substantive case against the petitioner, and have also passed the impugned detention order on the self-same facts, as a result of which he continues to be in detention ever since 27.11.1997, through he was released by the High Court on bail by order, dated 31.8.1998. 8. Mr. 8. Mr. Harendra Prasad Singh, learned Additional Counsel for the Central Government, in reply, submitted that such twin action on the part of the respondent-authorities is quite permissible in law. He placed reliance on a judgment of the Supreme Court Dharmendra Suganchandra Chelawat V/s. Union of India, 1990 CrLJ 1232 . He also placed reliance on a few other judgments which clearly support the contention of the respondent-authorities. 9. This Court has no hesitation in rejecting the contention advanced on behalf of the petitioner and hold that such twin action, namely, instituting a substantive case and passing an order of detention on the self-same facts is permissible in law. It is manifest from paragraphs 4 and 6 of the order of detention, dated 21.5.1998 (Annexure-C), that the detaining authority was aware of the complaint petition on the self-same facts pending against the petitioner. 10. Learned counsel for the petitioner next submitted that the grounds of detention have not been served on him at all and he was, therefore, prejudiced in making his representation before the Advisory Board. He endeavoured to support this contention by inviting our attention to the aforesaid order, dated 3.8.1998 (Annexure 3), issued under the signature of R.K. Guptan, Under Secretary to the Govt. of India, the endorsement of which is as follows : "....Shri Kashi Nath Tewary S/o Late Ram Dal Tewary C/o The Superintendent, Central Jail Buxar (Bihar) Copy to (1) Superintendent, Central Jail, Buxar, (Bihar), to serve the original order on the detenu and return the copy to the under signed along with detenu s dated acknowledgment. An extra copy of this order is also enclosed for jail record...". Learned counsel for the petitioner placed reliance on the position that the detention order was forwarded to the Central Jail at Buxar, whereas he was lodged in Sasaram Jail. He, therefore, strained to infer that the same could not have been, and was in fact, not served on him in Sasaram Jail. 11. Learned Addl. SCCG, in reply, submitted that the grounds of detention were served on him in Sasaram Jail on 1.6.1998, and the detenus signature and the acknowledgment is recorded on every page of the detention order covering 10 pages. A photocopy of the entire detention order recording the original acknowledgment of the detenu is marked Annexure C to the counter-affidavit. Learned Addl. SCCG, in reply, submitted that the grounds of detention were served on him in Sasaram Jail on 1.6.1998, and the detenus signature and the acknowledgment is recorded on every page of the detention order covering 10 pages. A photocopy of the entire detention order recording the original acknowledgment of the detenu is marked Annexure C to the counter-affidavit. Following is the acknowledgement at the bottom of each page : "Prapt Kiya Kashinath Tiwari Tarikh 1.6.98." 12. This Court is convinced on a bare perusal of the detention order (An-nexure-C), that the same was served on the detenu on 1.6.1998. It is further manifest from the materials on record that he did submit his representation before the Advisory Board which was duly considered and rejected. This contention of the petitioner as to non-service of the detention order is, therefore, rejected. 13. It was also submitted on behalf of the petitioner that no action at all has been initiated against the said Radhey Shyam Sao, who, on the face of it, is an accomplice. The learned Addl. SCCG was unable to explain the position, nor is there any explanation in the counter-affidavit. However, this Court is of the view that we do not wish to go into the circumstances which led to non-initiation of action against the said Radhey Shyam Sao in contrast to that of the petitioner. The petitioner appears to be a habitual offender which might have weighed with the detaining authority. Further more, failure to act against Radhey Shyam Sao cannot be itself invalidate a seemingly lawful action against the petitioner. Thus, the contention of the petitioner as to non-initiation of action against the said Radhey Shyam Sao is hereby rejected. 14. It was lastly submitted on behalf of the petitioner that delay in serving the detention order on the detenu is hit by Article 22(5) of the Constitution of India, read with Section 3(3) of the Act. Thus, the contention of the petitioner as to non-initiation of action against the said Radhey Shyam Sao is hereby rejected. 14. It was lastly submitted on behalf of the petitioner that delay in serving the detention order on the detenu is hit by Article 22(5) of the Constitution of India, read with Section 3(3) of the Act. Article 22(5) of the Constitution reads as follows : "When any person is detained in pursuance of an order made under any law providing for preventive detention, the authorities making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall offer him the earliest opportunity of making representation against the order." Section 3(3) of the Act re?ds as follows : "For the purpose of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but, ordinarily not later than five days and in exceptional circumstances and for the reasons to be recorded in writing, not later than fifteen days, from the date of detention. 15. In order to substantiate his contention, learned counsel for the petitioner expounded the following chronology of events : 27.11.1997 The petitioner was arrested in the premises of Radhey Shyam Sao, while in possession of 76 kgs. of ganja. 16.1.1998 Complaint Case No. NDPS 5/97, was filed in the Court of learned Sessions Judge, Sasaram. 21.5.1998 The detention order and the grounds was passed by the detaining authority (Annexure-C to the counter affidavit). 1.6.1998 The detention order and the grounds was served on the petitioner. 3.8.1998 Consequent upon the approval accorded by the Advisory Board, the detaining authority confirmed the order of detention (Annexure 3 to the writ petition). 16. On these facts, learned counsel for the petitioner submitted that though the petitioner was arrested on 27.11.1997, the detaining authority took six months to pass the impugned order of detention, dated 21.5.1998. He further submitted that the detention order, dated 21.5.1998 was served on him on 1.6.1998. In any view of the matter, the detention order was served clearly beyond the permissible time limit available to the detaining authority in law. He further submitted that the detention order, dated 21.5.1998 was served on him on 1.6.1998. In any view of the matter, the detention order was served clearly beyond the permissible time limit available to the detaining authority in law. He further submitted that no reason at all has been recorded explaining the delay beyond five days in service of the order of detention as mandated by Section 3(3) of the Act. Learned counsel relied on a Division Bench judgment in Madhya Pradesh High Court 1993 Cri LJ 3731 (Arjun Singh V/s. Union of India), wherein it has been held that the order of detention passed more than six months after the occurrence i.e., seizure of the contraband goods, the right of the detenu to make effective representation was infringed and the detention order was held to be arbitrary and illegal. 17. Learned Addl. SCCG in reply submitted that the delay in passing the detention order by itself is not of much avail to the petitioner. The facts and circumstances of each case, the attending and the surrounding circumstances leading to the delay, gravity of the allegations, etc. are crucial in determining the question. He relied on a Division Bench judgment of the Rajasthan High Court 1993 Cri LJ 2231 (Alfoodin Ghosi V/s. Union of India). The order, dated 3.8.1998 (Annexure 3), is the order of the detaining authority approving the order of detention after considering the representation of the detenu and also after receipt of the report of the Advisory Board, states that he shall be detained for a period of one year from the date of his detention, i.e., from 1.6.1998. In such circumstances, learned counsel submitted, the period contemplated by Section 3(3) of the Act commenced on 1.6.1998 in view of the fact that the order of detention, dated 1.6.1998 (Annexure C) was served on the detenu on 1.6.1998 itself. There is, therefore, no question of infraction of the mandatory provisions of Section 3(3) of the Act. 18. Having given our anxious consideration, we are convinced that there is no violation of the provisions of Article 22(5) of the Constitution of India nor of the provisions of Section 3(3) of the Act. This Court is of the view that the grounds of detention had to be communicated to the petitioner within a period of five days commencing on 1.6.1998. This Court is of the view that the grounds of detention had to be communicated to the petitioner within a period of five days commencing on 1.6.1998. As we have found herein above, the same was served on the detenu on 1.6.1998. There was thus full compliance of the provisions of Section 3(3) of the Act as well as Article 22(5) of the Constitution of India. 19. In the result, the writ petition is dismissed and the order of detention, dated 21.5.1998 (Annexure-C to the counter-affidavit), read with the order, dated 3.8.1998 of the detaining authority (Annexure 3 to the writ petition), are hereby upheld. The aforesaid order, dated 3.8.1998 of the detaining authority (Annexure 3) states that the petitioner shall be de ained for a period of one year from the date of his detention, i.e., 1.6.1998, which period has expired on 31.5.1999. In such circumstances, the petitioner is entitled to be set at liberty in terms of the said order, dated 3.8.1998 unless detained by any other order under the Act, or needed in any other case. R.N.Sahay, J. 20 I Agree.