JUDGMENT
Arunachalam, J.
1. Both these habeas corpus petition are disposed of together by a common order, since the petitioners in both these petitions are stated to be involved in the same ground case and the contentions raised are also identical.
2. Detenu in H.C.P. No. 399 of 1992 is the husband of the detenu in H.C.P. No. 392 of 1992. Both of them have pleaded for issue of a habeas for their production before this Court to be set at liberty, after quashing the impugned orders of detention dated 12-8-92, passed against them by the first respondent in exercise of the powers conferred under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotripic Substances Act, 1988 (Central Act 46 of 1988), with a view to preventing them from engaging in possession and selling of Narcotic Drugs.
3. The grounds of detention in HCP 392/92 disclose that on 22-1-1992, Kaliamurthy, Inspector of Police, Law & Order, Tiruvottiyur Police Station, while conducting investigation in Cr. Nos. 103 and 104 of 1992 interrogated one Ellamalli and Sekar (detenu in HCP 399/92) accused therein. They gave information that detenu in HCP No. 392 of 1992 was indulging in selling brown sugar at the rate of Rs. 100/- per packet at her residence at No. 10, Second Street, S.P. Koil Street, Tiruvettiyur to school and college going students and also to other youngsters. After recording the said information in the general diary, the said Inspector of Police entrusted Rs. 200/- to a decoy on the next morning, instructing him to purchase two packets of brown sugar from her. The said decoy Bazarullah purchased heroin from the detenu in H.C.P. No. 392 of 1992 and produced them before the Inspector of Police. Thereafter following the procedure mandated, the said Inspector of Police, along with the decoy, secured detenu (Malar) and when enquired she admitted, of her having sold brown sugar. She voluntarily produced, at the time of personal search by women constables, four small paper packets, each containing 300 mg of brown sugar, from her waist. From her residence, she produced a plastic cover containing brown sugar weighting 40 gms as well as Rs. 2044/-, the sale consideration of such illicit sale. Rs. 200/- sent through the decoy was also recovered from the possession of the detenu. Detenu was arrested, produced before a Magistrate and remanded to judicial custody. Detenu was released on bail by the Court of Sessions, Chengalpattu, subsequently. Report of the Chemical Analyst was obtained and a final report was laid before the Sessions Court, Chengalpattu.
4. Whileso, on 14-6-1992 at or about 4-45 a.m. in front of Tablets India (Pvt) Ltd. Madras-81, P. John Rose, Sub-Inspector of Police, NIB, CID and his party, while watching for narcotic cases, on specific information, intercepted both the detenue. After observing formalities ordained by law and with the consent of the detenus, the polythene cover produced by the detenu in HCP No. 399 of 1992 was checked and it was found to contain four magazine paper packets of heroin, weighing 36 gms. Detenu in HCP No. 392 of 1992 had also produced voluntarily from her waist another plastic cover containing heroin weighing 10 gms. Another crime was registered and both the detenus were produced before the Metropolitan Magistrate, Who remanded them to judicial custody. However, both of them were enlarged on bail by this Court by order dated 7-7-1992. Report of the Chemical Analyst was obtained and it disclosed that the seized contraband was diacetyl morphine derived from opium alkaloid morphine. This instance is now pending investigation. From the aforestated facts, detaining authority arrived at his subjective satisfaction to preventively detain both the detenus.
5. As far as the detenu in H.C.P. No. 399 of 1992 is concerned, the grounds of detention refer to seizure of a money purse from him by Sub-Inspector of police, NIB, CID, Madras on 13-3-1991 at about 3-30 p.m. at the junction of Tiruvottiyur High road and Varadappa Naidu Street; Madras, which, on scrutiny, was found to contain 58 small paper packets of heroin powder weighing 20 gms. Usual formalities of producing before the Magistrate, obtaining remand and satisfying that the contraband seized was heroine by obtaining the report from the Chemical Analyst, were all followed.
6. Again on 21-1-1992 at 8-30 p.m. at Kalyani Chetty Nagar, Tiruvottiyur, Inspector of Police, Law & Order, Tiruvottiyur chased this detenu (Sekar) and his mother Illamalli and had them searched. From the detenu, a paper packet containing four small paper packets of brown sugar weighing 300 mgs and cash of Rs. 95/- being the sale proceeds of brown sugar were seized, leave alone seizure from his mother. Even in respect of said crime, due formalities were followed. It was thereafter that on 14-6-1992 both the detenus were arrested by the Sub-Inspector of police, NIB, CID, when they had possessed heroin.
7. Dr. G. Krishnamurthy, learned counsel appearing on behalf of the petitioners in both these hebeas corpus petitions, raised the following contentions :-
(i) grounds of detention refer to recording of information received from the accused in Tiruvottiyur Police Station Crime Nos. 103 and 104/92 in the general diary. The said general diary had not been supplied to the detenu in HCP No. 392 of 1992 to make an effective representation;
(ii) the detaining authority had not satisfied himself that the detenus were indulging themselves in illicit traffic in relation to narcotic drugs and psychotropic substances, other than those permitted under the Narcotic Drugs and Psychotropic Substances Act, 1985, or any rule or order made or any condition of any licence, term or authorisation issued thereunder. It was submitted that unless such an exclusion was made by the detaining authority in the process of his subjective satisfaction, the impugned orders will have to be necessarily invalidated;
(iii) in the representation dated 20-8-1992 detenus have stated that one Yuvaraj, son of Rama Rao may be deputed to represent them before the Advisory Board. However, the detaining authority had chosen to investigate the availability of the said Yuvaraj to the detriment of the petitioners, for, while rejecting the representation, the detaining authority has stated that Yuvaraj was not available at the address furnished by the detenus. There was also delay in the disposal of the representation;
(iv) the grounds of detention were not served on the detenus within the stipulated period and hence both the orders of detention will have to be voided;
(v) In both HCP’s the occurrence in the ground case was on 14-6-1992 and the report of the Chemical Analyst had been received even on 8-7-1992. There was a delay of more than one month in passing the impugned orders of detention, which are dated 12-8-1992. On the ground of this delay in passing these preventive orders, petitioners are bound to succeed;
(vi) the ground case had ended in acquittal of both the detenus and hence these preventive orders cannot be sustained;
(vii) some pages in the paper book supplied to the detenus, along with the grounds of detention, are illegible.
8. On all these contentions, we have heard Mr. I. Subramaniam, learned additional Public Prosecutor.
9. We have carefully considerd the contentions advanced by either side. General diary information referred to in the grounds of detention, has no correlation to the ground case and obviously it has been referred to, in passing, while narrating the adverse crime. It is not disputed that the petitioners have not asked for supply of such general diary information in their representation. We are satisfied that no prejudice has been caused to the detenus on this score, for they are not, as a matter of right, entitled to a copy of the general diary, which has not been relied upon for the purpose of passing the impugned orders. In Abdul Sathar Ibrahim Manik v. Union of India, while referring to the failures to supply the bail application and the order refusing bail, the Apex Court had started that it does not in any manner prejudice the detenu for making a representation particularly when he was fully aware of the contents of the application made by himself and also the refusal order. Further, when they were not referred to or relied upon, the non supply does not affect the detention. It is settled law that prejudice, due to non-supply of those documents not relied upon, will have to be established. But that has not been done in this case. Principle enunciated by the Supreme Court will apply to the instant facts.
10. The second contention deserves outright rejection. Act 46 of 1988 was intended to provide for detention in certain cases for the purpose of preventing the illicit traffic in narcotic drugs and psychotropic substances, since such activities of a considerable magnitude were clandestinely organised and carried on. In pursuance of the said object, under S. 2(e) of the Act ‘illicit traffic’ has been defined. We are unable to agree with Dr. G. Krishnamurthi on the facts placed before us that before a person could be detained preventively under this Act, the detaining authority has to satisfy himself that illicit traffic in relation to narcotic drugs psychotropic substances was other than those permitted under the Narcotic Drugs and Psychotropic Substances Act, 1958 or any rule or order made, or any condition of any licence, term of authorisation issued, irrespective of specific facts more so when the facts disclose direct seizure from the person of the detenus, who had no explanation to offer about the lawful possession of such drugs. S. 2(e) of the Act defining ‘illicit traffic’ takes in its fold under (iv) dealing in any activities in narcotic drugs or psychotropic substances other than those provided sub-clauses (i) to (iii). We are not concerned in this habeas corpus petitions about the headline or letting any premises for the carrying on of any of the activities referred to in sub-clauses (i) to (iv) of S. 2(e) of the Act. This contention shall stand rejected.
11. We are unable to see any delay in the disposal of the representation. The representation dated 20-8-1992 was disposed of on 27-8-1992. We are unable to agree with the petitioners’ counsel that the enquiry made by the detaining authority to trace Yuvaraj had resulted in prejudice to the case of the detenus, before the Advisory Board. The reason is simple. In the representation, both the detenus have pleaded that Yuvaraj, son of Ramarao may be deputed to appear on their behalf before the Advisory Board. If the representation of the detenus had to be effectively considered, it stands to reason that Yuvaraj must be traced to make him aware of the request of the detenus to produce him before the Advisory Board to represent them. The meeting of the Advisory Board was held only on 9-10-1992. Contrary to the submissions made by the petitioners’ counsel, the manner in which the representation was disposed of by the State Government, after ascertaining the availability of Yuvaraj, to our mind, shows an effective a proper disposal. This ground does not enure in favour of the detenus.
12. From the files produced, we are able to see that the grounds of detention where served on the detenus on 14-8-1992, two days after the order of detention was served. Under S. 3(3) of the Act, service of grounds is within the statutory period. This ground shall stand negated totally.
13. The sixth contention, though appears attractive has no merit in it. In Shiv Ratan Makim v. Union of India, the following observations have been made :
“The object of making an order of detention is preventive while the object of a criminal prosecution is punitive. Even if a criminal prosecution fails and an order of detention is then made, it would not invalidate the order of detention, because “the purpose of preventive detention being different from conviction and punishment and subjective satisfaction being necessary in the latter, the order of detention would not be bad merely because criminal prosecution has failed … But if the object of making the order of detention is to prevent the commission in future of activities to injurious to the community, it would be perfectly legitimate exercise of power to make the order of detention.”
On the facts placed before us, we have no hesitation in observing that the orders of detention have been passed plainly and indubitably with a view to preventing the petitioners from continuing their nefarious activities and, therefore, the impugned orders are perfectly valid.
14. In Mohd. Subrati v. State of West Bengal, Dua, J., speaking for the Bench, stated that the jurisdiction under the Act may be invoked, when the available evidence does not come up to the standard of judicial proof but is otherwise cogent enough to give rise to suspicion in the mind of the authority concerned that there is a reasonable likelihood of repetition of past conduct which would be prejudicial inter alia to the security of the State or the maintenance of Public order for that was a case relating to detention under the Maintenance of Internal Security Act, 1971. Principle underlying is the same for the subjective satisfaction herein relates to the possibility of the detenus indulging in repetition of prejudicial activity of similar nature in future.
15. Petitioners’ counsel referred to the decision of a Division Bench of this Court in Md. Jaufer Faleel Rahman v. State of Tamil Nadu, 1988 Mad LW (Crl) 75 (SN) in support of his proposition that if the ground case fails before a criminal court, the impugned order of detention cannot be sustained. On the facts available, the Division Bench has stated as follows :-
“Though it is not correct to say that solely or mainly because the petitioner has been acquitted in the criminal case, he is entitled to be enlarged from preventive detention, at the same time, it does not follow that the termination of the proceedings in a criminal case in favour of the petitioner on identical facts is of no consequence. The facts and circumstances of each case have ultimately to demarcate the callous or colourable exercise of power from the activist or alert application of the Executive’s mind in making the impugned order. In this case, it is not challenged that the criminal Court found that the seizure has not been satisfactorily established and the statement given by the petitioner was not voluntary. Inasmuch as the seizure has not been established in the criminal Court, the very basis of the order of detention goes. His continued detention is, therefore, illegal.”
These observations speak for themselves. The basis of the crime itself was doubted and seizure not having been established, on the peculiar facts placed before the said Division Bench, they were constrained to void the order of detention. Such contingency does not arise on the instant facts, because subjective satisfaction has been arrived at in respect of the possibilities of the detenus indulging in future nefarious activity.
16. In Ayyappan v. The Commissioner of Police, Madurai City, 1993 MLJ (Crl) 211 another Division Bench of this Court, following the ratio in Md. Jaufer Faleel Rahman’s case 1988 Mad LW (Crl) 75 (SN), has held that the order of detention therein had to be voided since the finding of the criminal court was that no such occurrence had taken place while acquitting the accused. The Division Bench has been very careful in observing “that the continued detention was held to be illegal in the circumstances of that case”. It cannot be gainsaid that an universal ratio cannot be formulated or mechanically applied, for the fact in each case will dictate the need to hold in favour or against the detenu.
17. Though the ground of delay in passing of the impugned orders do not form part of the writ petition we directed the learned Additional Public Prosecutor to place before us the file to satisfy ourselves if there had been any unexplained delay in the passing of the impugned orders. We are able to see that the ground instance had taken place on 14-6-1992 and the report of the Analyst was received on 16-7-1992. The proposal, and the documents, forwarded by the sponsoring Authority on 4-8-1992. After consideration of the material placed the impugned orders of detention were passed on 14-8-1992. We are unable to see enormous delay, much less unexplained, in the passing of the impugned orders. This ground has no merit.
18. In Abdul Salam v. Union of India, the Supreme Court observed that if the delay in passing of the order of detention gets reasonably explained, it cannot be said that because of the delay necessary nexus got severed and that the grounds have become stale and illusory. Delay by itself would not invalidate the detention. We have already stated the facts and we hold that on this point the detenus cannot succeed.
19. The last ground relates to illegibility of three pages in the paper book supplied to the detenus. Though we are unable to hold that they are totally not legible, we find that they are only printed forms No. 95. Detenus have been furnished with correlated mahazars for seizure, which are clear. Apparently, there cannot be any prejudice to the case of the detenus, on this score.
20. Now that all the grounds of attack have been negatived, the net result is that both these habeas corpus petitions shall stand dismissed.
21. Petitions dismissed.