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Madhya Pradesh High Court · body

2011 DIGILAW 1364 (MP)

Shiv Shankar Agarwal v. Union Of India

2011-12-02

G.D.SAXENA, S.K.GANGELE

body2011
Judgment S.K. GANGELE, J. ( 1. ) PETITIONER has filed this petition against the order of detention dated 6th May, 2011 passed by respondent No. 3 under section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. ( 2. ) THE Authority in the grounds of detention has mentioned that on specific information a Preventive Unit of the Central Bureau of Narcotics, Gwalior raided the godown of M/s Balaji Trading Company at Gwalior and seized 4110.540 Kgs. of Poppy Husk and 91.240 Kgs Poppy Straw Powder under section 60 (1) and (2) of the Narcotics Drugs and Psychotropic Substances Act, 1985, for brevity the 'NDPS Act'. During investigation it was found that one Mr. Surendra. Singh had PS-3 licence of retail Poppy Straw seller. However, he disclosed the fact that he was only receiving an amount of Rs. 5000/- per month and he was working as a proxy of the petitioner, who had been working with Mr. Idu Khan. Both, petitioner and Idu Khan, were engaged in purchasing Poppy Straw and Poppy Straw Powder and it was sold illicitly. THE said product was being sold illegally to clients of Punjab and Haryana. It is further noted by the Authority that the petitioner and and Idu Khan deliberately recorded less quantity of Poppy Straw and Poppy Straw Powder in the stock register. THE Authority also analyzed the mobile calls of the petitioner and Mr. Idu Khan and found that the petitioner is in illegal trade for last five years. THE representative samples from seized Poppy Straw and Poppy Straw powder were drawn on 7-10-2010 and sent to Government Opium and Alkaloid, Neemuch (MP) for chemical analysis. As per the report in regard to analysis all the samples were of Poppy Straw within the meaning of NDPS Act. On the basis of the aforesaid facts the Authority has observed that it is necessary to detain the petitioner to prevent him from indulging in illicit trafficking of Narcotic Drugs i.e. Poppy Straw and Poppy Straw powder. Copies of documents, on which the Authority relied on, have been supplied to the petitioner. ( 3. ) AGAINST the aforesaid order of detention the petitioner preferred a representation before the Government of India, Department of Revenue, Ministry of Finance, New Delhi. That representation has also been rejected by the Secretary, Department of Revenue. Copies of documents, on which the Authority relied on, have been supplied to the petitioner. ( 3. ) AGAINST the aforesaid order of detention the petitioner preferred a representation before the Government of India, Department of Revenue, Ministry of Finance, New Delhi. That representation has also been rejected by the Secretary, Department of Revenue. The petitioner was provided an opportunity to make representation before the Central Advisory Board. He availed the aforesaid opportunity and represented before the Central Advisory Board through his counsel. The Board also rejected the representation of the petitioner and affirmed the order of detention. ( 4. ) LEARNED Counsel for the petitioner has submitted that the order of detention of the petitioner is not sustainable because a criminal case is pending against him on the same facts before the Competent Court and the petitioner has been granted bail in the aforesaid case. He further submitted that in order to deny the benefit of bail the Authority has passed the order of detention and there is no sufficient ground in regard to subjective satisfaction of the Authority for passing the order of detention. In support of his contentions learned counsel relied on the judgment of Hon'ble the Supreme Court in the case of Rekha vs. State of Tamil Nadu through Secretary to Government and another, reported in (2011) 5 SCC 244 . Hon'ble the Supreme Court in the case of Collector and District Magistrate, W. G. Distt. Eluruk, Andhra Pradesh and others vs. Sangala Kondamma, reported in / (2005) CCR 30 (SC), has held, as under, in regard to satisfaction of the Detaining Authority :- "9. We notice from the preamble and statements and objects of the Act that it aims to prevent a person from indulging in certain illegal activities enumerated therein by his preventive detention. For the said purpose, the Detaining Authority must be satisfied that the proposed detenu is likely to indulge in such illegal activities in future also. This is a satisfaction that could be reasonable arrived at by the Detaining Authority only be examining the material that is produced by the authority proposing his detention. In such a process, a Detaining Authority may not always take into consideration a stray or solitary incident which may not give rise to a reasonable apprehension or satisfaction as to such future act of the proposed detenu. In such a process, a Detaining Authority may not always take into consideration a stray or solitary incident which may not give rise to a reasonable apprehension or satisfaction as to such future act of the proposed detenu. Therefore, it is necessary for the authority proposing the detention of a person under the Act to produce such material which shows the continuous previous illegal activities of the proposed detenu which would satisfy the Detaining Authority of the need for detaining such a person. In other words, the material produced by the authority proposing the detention should form a chain of incidents last of which will have to be proximate to the date of proposed detention while other acts must be proximate to each other. Thus, if the facts placed before the Detaining Authority are proximate to each other and the last of the fact mentioned in proximate to the order of detention then the early incidents cannot be treated as stale and detention order cannot be set aside. In the instant case, it is seen that between the period from 10-1-2001 and 25-10-2002 the detenu was involved in five incidents of bootlegging which are reasonably proximate to each other and the last of the incidents being proximate to the order of detention, we think the High Court was not justified in treating the two incidents of 17-1-2000 and 10-1-2001 as stale by taking them in isolation. In our opinion, the Court should have considered the proximity of the incidents between themselves which indicates the possibility of the proposed detenu. continuing to indulge in the illegal activities which require his preventive detention. In the present case, as noticed above, the five incidents recorded in the order of detention being proximate enough to each other shows the continuity of the acts of the detenu. In such a fact situation, we think the High Court erred in coming to the conclusion that two of the five grounds being not proximate to the order of detention and the order of detention was based on stale grounds. In such a fact situation, we think the High Court erred in coming to the conclusion that two of the five grounds being not proximate to the order of detention and the order of detention was based on stale grounds. While it can be stated that the incidents of 17-1-2000 and 10-1-2001 could not by themselves have been sufficient grounds to detain the detenu but would certainly become a relevant material along with other three grounds dated 3-2-2002, 6-10- 2002 and 25-10-2002 to come to the conclusion that there is need for detaining the detenu to prevent him from indulging in similar activities in the future." ( 5. ) SECTION 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 gives power to the Authority to order detention of a person with a view to prevent him from engaging in illicit traffic in narcotic drugs and psychotropic substances. In the order of grounds of detention the Authority has mentioned detailed facts which proves that the petitioner has been in illicit trading of narcotic drugs and psychotropic substances for the last five years. The order of the Authority is not based on the basis of solitary act. Proper opportunity has been provided to the petitioner and copies of all the documents have also been supplied to the petitioner. The Detaining Authority has also mentioned the fact in regard to grant of bail to the petitioner, however, the petitioner had been in the aforesaid activities for the last five years. ( 6. ) IN our opinion, the order of detention of the petitioner passed by the Competent Authority is passed on the basis of subjective satisfaction of the Authority and for that purpose there was sufficient material before the Authority. IN our opinion, it is necessary to detain the petitioner to prevent him from illicit trading of narcotic drugs and psychotropic substances, hence, we do not find any merit in this petition. It is hereby dismissed. No order as to costs. Petition dismissed.