JUDGMENT
H.H. Kantharia, J.
1. As these four writ petitions arise out of same facts and circumstances and the points of law are also the same, they are heard together and are being disposed off by this common judgment.
2. The petitioner in Writ Petition No. 452 of 1991 is the brother-in-law of the detenu Abdul Kader Gafoor Imam Shaikh (hereinafter referred to as “the said Kader”), the petitioner in Writ Petition No. 453 of 1991 is the brother of the detenu Umer Abdul Aziz (hereinafter referred to as “the said Umer”), the petitioner in Writ Petition No. 491 of 1991 is the wife of the detenu Sultan Hussain Tafzool (hereinafter referred to as “the said Sultan”) and in Writ Petition No. 552 of 1991 the petitioner is the brother of the detenu Narendrasingh Jamindar Singh (hereinafter referred to as “the said Narendrasingh”).
3. The petitioners in all these four writ petitions under Article 226 of the Constitution of India have challenged the detention orders passed by the Secretary (Preventive Detention) to the Government of Maharashtra, Home Department and the Detaining Authority on March 30, 1991 detaining the said Kadar, Umer, Sultan and Narendarsingh with a view to preventing them from engaging in possessing, selling and purchasing narcotic drugs, under sub-section (1) of section 3 of the Prevention of Illicit Traffic in Narcotics Drugs and Psychotropic Substances Act, 1988.
4. The facts as emerge from the grounds of detention which gave rise to these writ petitions are as under:—
The officers of the narcotic cell of Bombay Police received a secret information that one Darshan Kumar Dogra and one Purshottamlal Madanlal Sharma (hereinafter referred to as “Dogra” and Sharma” respectively) from Jammu had contacts with narcotic traffickers in Bombay upon which the Bombay Police of Narcotic cell instructed the informant to contact the abovesaid two persons and present himself as customer for the drugs. The informant obtained from the above said two persons a sample of white powder which he passed on to the police on April 17, 1990. Thereafter, the said Dogra and Sharma were interrogated by the police when it was revealed that they had procured the sample form detenu Kader in wit petition No. 452 of 1991. Dogra and Sharma, instead of being arrested were instructed to get in touch with Police Sub-Inspector Vijay Salaskar of the narcotic cell of the Bombay police, as a potential customer. Accordingly, police sub-inspector Salaskar was introduced by a fictitious name Vijay Sharma to kader on April 18, 1990 in his house at Nagdevi Street, Sub-inspector Salaskar in disguise as Vijay Sharma made an offer to Kader to buy two packets of heroin which Kader agreed to supply at the rate of Rs. 1.5 lacs per k.g. but insisted that he would not make delivery at Nagdevi Street. Sub-inspector Salaskar, therefore, gave his address as Transit Campt, Jogeshwari (E). Then at about 9.00 p.m. Kader met sub-inspector Salaskar and told him that he (Kader) would phone Salaskar the following day to inform him about the time and place of delivery.
Next day, Salaskar telephoned kader on telephone No. 333089. He was told that the delivery would be given at 8.00 p.m. in front of Petrol Pump, Charnal Area, Dongri. Sub-inspector Salaskar told Kader that he was interested only in 1/2 kg. of heroin and Kader told him to bring Rs. 75,000/-. On April 19, 1990 the police called two panchas and proceeded towards Charnal in a hired tempo and reached there at about 7.45 p.m. But Kadre was not to be seen there. Salaskar telephoned Kader upon which Kader told him that his brother by name Umer would be going to give delivery when Salaskar gave him the tempo number and told him that the tempo would be parked in front of Hind Automobile Petrol Pump. Dogra and Salaskar sat in the driver’s cabin while the panch witnesses and officers kept watch from a safe distance. Soon thereafter a person by name Umer who introduced himself as the brother of Kader arrived there. The officer showed him a plastic bag containing fake currency notes. Umer (detenu in Writ Petition No. 453 of 1991) then handed over the polythene bag to the officer. immediately Umer was apprehended, the polythene bag was opened in the presence of panch witnesses and the content of the bag was found to be white powder. The powder was tested on a Drug Identification Kit and the test confirmed it to be heroin and the weight was 500 gms. Umer disclosed that the heroin was brought by Kader from one Shaikh Mohd. Hussain of Zakaria Masjid Street.
On the basis of the information given by Umer, Kader was traced and was brought to the office of the narcotic cell at old Princess Street Police compound on the Picket Road. In the night of April 19, 1990 kader said that heroin which was seized from him brother had been purchased from one Mehamood and offered to take police to his residence. Accordingly he led police and panch witnesses to the building bearing Municipal No. 93/95 in Zakaria Masjid Street, Dongri and took them to 2nd floor in Room No. 14. On knocking at the door of the said room, a female voice responded and asked for the identity of the caller. Kader said that it was he upon which the door was opened. The lady introduced herself to be wife of Mehamood who was at the particular time not available. The premises were searched by the police. When the door of the bathroom was opened, one person who gave his name as Mehamood alias Shaikh Mohd. Hussain came out and was identified by Kader. From a steel cup-board police recovered two packets covered with brown paper the contents of which were similar like the powder previously seized. However, the same was ascertained to be charas weighing 1kg.
On April 20, 1990 Kader’s residence at 274, Jammu Masjid Trust Building, Nagdevi Street, was visited by the police alongwith kader and two panch witnesses. Kader’s wife opened the door of Room No. 16. From the loft therein, two plastic pots were recovered. One of them was found to contain number of packets. From the said packets. 1.3 kgs. of opium was recovered. The other pot contained hashish weighting 900 gms. On further interrogating Kader he volunteered to point out a person who was having 2 kgs. of heroin. He accordingly led the police and panch witnesses alongwith Picket Road via Mahatma Jyotiba Phule Market and Mahamedali Road to a building known as Ali Javed Noor Manzil. He took the police to Room No. 6 on the 1st floor. A person by name Mohd. Umer Rajab Hussain was found there with the members of his family. He took out two polythene bags and handed over to the police. The contents of the said bags were heroin weighing 2 kgs.
On April 21, 1990 the said Mohd. Umer Rajab Hussain told the police the one sultan Hussain alias Mamu had given him two kgs. of heroin and that the said Mamu often visited Starwel hotel at Juhu Tara Road to deliver the goods to the customers and take money, normally in the evening. The police accompanied by two panch witnesses and the said Mohd. Umar Rajab Hussain went to Starwel hotel. Immediately thereafter a person carrying one polythene bag got down from a fiat car bearing No. MAM-9598 to whom Mohd. Umer pointed out. The officer apprehended the said person who gave his name as Sultan Hussain residing at Holy Chawl 127, Hill Road, Bandra (West). The bag found with him contained 500 gms of heroin. The said Sultan Hussain Tafzool Hussain (detenu in Writ Petition No. 491 of 1991) told the police that one Narendarsingh who was staying at Aarey Milk Colony, had given him 500 gms. of heroin and that Narendarsingh would be still having more heroin and he was to receive money for 500 gms of heroin from Sultan near Jal hotel. The police accompanied by two panch witnesses and said Sultan went towards Aadar hotel near Jal hotel on the Southern side of Nehru Road. After sometime one Maruti jeep bearing No. GAQ-5657 went there from the eastern side and haulted in front of Aadar hotel. One person get down from the said jeep with polythene bag to whom Sultan pointed out as Narendarsingh whom police apprehended. Narendrasingh (detenu in Writ Petition No. 552 of 1991) gave his residential address as Unit No. 26, Aarey Milk Colony, Goregaon (East). The polythene bag found in his possession contained heroin and weighed 500 gms. There was also a person called Rajendra Singh who was brother of Narendrasingh in the jeep. Narendrasingh volunteered to point out pure heroin kept in his house and also offered the police to show the utensils and other things used for the purpose of making pure heroin from crude heroin. Narendrasingh accordingly took the police to his house and showed everything to the police as to how he made pure heroin from crude heroin.
After arresting the four detenus and others, they were produced before the Metropolitan magistrate, 23rd Court (Holiday) at Esplanade at Bombay on April 21, 1990. They were remanded to the police custody initially and were then released on bail on different dates.
5. It is in the above background that the four detenus were detained by the impugned detention orders.
6. A number of contentions are raised by different petitioners in the different petitions. However, there is a common contention raised by all the petitioners which has been canvassed before us and on that ground alone all the writ petitions should succeed and, therefore, we are inclined to limit our discussions only to the said ground taken by all the petitioners and other grounds need not be considered at all.
7. Thus, the contention raised on behalf of the petitioners by their learned respective Counsel is that the alleged incident had taken place on April 18, 1990 whereas the orders of detention were passed only on March 30, 1991. The submission of the learned Counsel is that thus there was an inordinate delay in issuing detention orders although the whole investigation in the case was over by May, 1990 and as such there was no nexus between the alleged prejudicial activity of the various detenus and the passing on of the detention orders which resulted in violating the safeguards mandated under Article 22(5) of the Constitution. The learned Counsel also urged that the live-link between the alleged prejudicial activity and the impugned detention orders has been snapped and thus, the detention orders were vitiated.
8. This contention raised on behalf of the petitioners is dealt with by the Detaining Authority in its affidavit. Thus, according to the Home Secretary of the Government of Maharashtra incharge of the Preventive Detention, there was no delay in issuing detention orders. He admitted that the alleged incident took place on April 18, 1990 and the various detenus were released on bail on diverse dates. According to him, therefore, there was apprehension that the detenu would start indulging in prejudicial activities, and hence material was collected and proposal was prepared. Time was taken for scrutiny of the proposal at various levels. Ultimately, the Additional Commissioner of Police, South Region, Greater Bombay, submitted the proposal in respect of the various detenus and proposal was made on December 29, 1990 which was received in the Home Department on January 24, 1991. The Home Secretary considered the proposal, scrutinised the documents and started dictating draft of the grounds of detention on February 15, 1991 which dictation he finished on February 19, 1991. He then contended that in the meanwhile on February 16, 1991 the Government called for additional information about the bail orders. The additional documents alongwith information called for were received on March 21, 1991. He then considered the proposal alongwith all the documents once again and finalised the grounds of detention and issued the detention orders on March 30, 1991. Under these circumstances, the Home Secretary contended that the time taken for issuing detention orders was not only reasonable but also necessary and thus there was neither delay in issuing detention orders nor was the livelink snapped. In his submission, therefore, the detention orders were not vitiated in any manner whatsoever. Similar arguments were advanced before us by the learned Public Prosecutor appearing on behalf of the respondents.
9. We are not able to persuade ourselves to agree with the submissions made by the learned Public Prosecutor inasmuch as what has been stated in the affidavit of the Home Secretary are the bare facts leading to the issuance of the detention orders and the delay in doing so is not at all explained. Although the alleged incident took place on April 18, 1990 the proposal to pass detention orders was made only on December 29, 1990. In the meanwhile the investigation was over, charge-sheets were also filed an the detenus were released on bail. Admittedly, the detenus were released on bail somewhere in the month of August, 1990. There is no explanation as to the delay from August to December, 1990. Initially, the draft of the grounds of detention was dictated from 15-2-1991 to 19-2-1991. Thereafter some additional documents were received on March 21, 1991. The detention orders were passed on 30th March, 1991. The delay between 21-3-1991 and 30-3-1991 has also not been explained. At any rate, the live-link between the alleged prejudicial activates and the impugned detention orders between April 18,1990 and March 30, 1991 was snapped. The inordinate delay has not at all been explained. This certainly vitiated the detention orders. The continued detention of the four detenus therefore cannot be permitted. Further the Home secretary in his affidavit also had contended that after the detenus were released on bail they did not indulge in any prejudicial activities. In this view of the matter the impugned detention orders will have to be quashed and set aside and the detenus will have to be released.
10. In the result, all the four writ petitions succeed and the same are allowed. The impugned detention orders in all four writ petitions are quashed and set aside. The four detenus are ordered to be set at liberty forthwith unless required in some other case or cases. Rule is accordingly made absolute in each of the writ petitions.
