JUDGMENT
D.K. Deshmukh, J.
1. The point that arises for consideration and decision in this petition filed under Article 226 of the Constitution of India, challenging the order dated 26th of May 1995 made by the Principal Secretary to the Government of Maharashtra, Home Department (Preventive Detention) and Detaining Authority, respondent No. 2, under the provisions of sub-section (1) of section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as “the Act” for the sake of brevity) placing one Shivkumar Shivramdas Sood under preventive detention is “Can a person be detained in custody under the preventive detention laws without the detaining authority recording a satisfaction in the detention order itself that the person concerned is likely to indulge in prejudicial activities in future if not detained in custody.” The order impugned is at Annexure ‘A’ to the petition. The order is accompanied by a communication dated 26th May 1995 addressed to the said Shivkumar Shivramdas Sood (hereinafter referred to as “the detenu”). The petitioner claims to be the son of the said detenu. The communication dated 26th May 1995, which is at Annexure ‘B’ to the petition, contains the grounds and reasons for making the order of detention at Annexure A. The order at Annexure A, after receipt of the report from the Advisory Board, was confirmed by the respondent No. 1 – State by its order dated 17th of August 1995 in exercise of its powers under Clause (f) of section 9 of the Act. The period of detention of the detenu was to be one year from 28th May 1995. Thus, when the matter was called out for final hearing, the period of detention was already over. However, Court took up the matter for final hearing on merits in view of the fact that by an order dated 18th August 1995 of the Competent Authority under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act“) made under sub-section (2) of section 68-F of the NDPS Act, the properties of the detenu were freezed. The order dated 18th August 1995 under sub-section (2) of section 68-F of the NDPS Act has been made by the Competent Authority on the basis of the order of detention and, therefore, the petition challenging the detention order has to be heard on merits and decided, though the period of detention of the detenu is over.
2. Perusal of the order of detention at Annexure A to the petition shows that it has been made by respondent No. 2 to prevent the detenu from engaging in illicit traffic in psychotropic substances. The grounds of detention at Annexure B show that on information received by the officers of the Narcotic Cell, Andheri Unit, Bombay, a trap was laid by the officers of the Andheri Unit of the Narcotics Cell, Bombay. It is further alleged that on 14-11-1994 the raiding party found the detenu in possession of two small transparent polythene packets containing light grey coloured tablets with a ‘swastik’ on one side and letter ‘N’ on the other side. It is further stated that the tablets from both the packets were tested on the field identification kit separately and the result was positive for Methaqualone, a psychotropic substance used in the manufacture of Mandrax tablets. It is further stated that the detenu himself stated in a statement that he made during the interrogation voluntarily that he had a factory at Mohilli Village, Saki Naka Pipe Line, Bombay, where he manufactured Mandrax tablets from Methaqualone powder. The factory was also searched by the officers on 14-11-1994 where they found that one Virendra Sood was taking out a tray from the dryer for manufacturing Mandrax tablets. During the search, implements and machines used for manufacture of Mandrax tablets were also seized. The statements of the detenu, according to the grounds of detention at Annexure B, were recorded on 14-11-1994, 16-11-1994, 18-11-1994 and 21-11-1994. It is further stated that in the statement made during investigation, the detenu stated that in the month of May 1994, one Shamim Qureshi requested the detenu to set up a unit for manufacturing Mandrax tablets for which the said Shamim would make investment and the tablets would be exported to South Africa. According to the grounds of detention, it was further stated by the detenu during investigation that the said Shamim and one Anis also undertook to supply Methaqualone powder to the detenu for making the Mandrax tablets. It is further stated that the detenu was paid an amount of Rs. 6 lakhs for the job. The grounds of detention at Annexure B also detail the statements made during investigation by Virendrakumar Omprakash Sood. It is further stated that the statements of one Deepak Shivkumar Sood were recorded by the authorities during investigation on 18-11-1994 and 19-11-1994. According to the grounds of detention, the said Deepak Sood in his statement stated that he along with his mother Smt. Brijmohini were assisting the detenu in the manufacture and sale of Mandrax tablets. The statement of Smt. Brijmohini, the wife of the detenu, was recorded on 18-11-1994 and according to the grounds, in her statement she also stated that she used to assist the detenu in the work of manufacture and sale of Mandrax tablets. In the grounds it is further stated that the statements of one Mohd. Ibrahim were recorded on 22-11-1994, 23-11-1994 and 29- 11-1994 wherein the said Mohd. Ibrahim stated that he was assisting the detenu in drug peddling and he was being paid commission by the detenu for the work done. It is further stated in the grounds that the detenue was arrested on 14-11-1994 and was produced before the Special Court for Greater Bombay. Initially the Court remanded the detenu to police custody and thereafter to judicial custody. It is further stated that along with the detenu, Virendra Sood, Sadguru Sugraj Sharma, Deepak Sood and Smt. Brijmohini Sood were also arrested and they were also placed in custody. It is further stated that Deepak Sood and Smt. Brijmohini Sood moved an application for bail before the Sessions Court which released Smt. Brijmohini Sood on bail on 23-12-1994. However, the bail application of Deepak Sood was rejected by the Court. He, however, moved this Court and this Court released him on bail by order dated 6-1-1995. Mohd. Ibrahim who was also arrested on 22-11-1994 in the same action was also released on bail by the Sessions Court by order dated 26-12-1994. In paragraph 33 of the grounds it is stated that respondent No. 2 is satisfied that it is necessary to detain the detenu under the provisions of the Act to prevent him from engaging in illicit traffic in psychotropic substances.
3. In the petition, the detention order at Annexure A has been challenged on several grounds. However, at the hearing of the petition, only one ground was raised on behalf of the petitioner. The submission of the learned Counsel for the petitioner is that “Satisfaction to the effect that the detenu was likely to indulge in prejudicial activities in future and if not detained, he will continue to do so – not having been recorded. Order bad.” Thus it is the submission of the petitioner that in the grounds accompanying the detention order, the Detaining Authority has not recorded a satisfaction that the detenu is likely to engage himself in the illicit traffic in psychotropic substances in future, if he is not detained in custody has not been recorded and therefore in the absence of such a satisfaction being recorded in the order, the order is vitiated. In the submission of the petitioner, recording of such a satisfaction is a sine qua non for making an order of preventive detention. The learned Counsel for the petitioner contended that this ground has been specifically raised in the petition. Perusal of Ground No. (v) in the petition shows that it is the contention of the petitioner that the Detaining Authority has nowhere in the grounds of detention recorded his satisfaction that the detenu was likely to engage in illicit traffic in psychotropic substances in future and will continue to do so unless the detenu was prevented from doing so by making an order of preventive detention. It is the contention of the petitioner that in the absence of such a satisfaction being recorded in the grounds of detention, the Detaining Authority could not have at all invoked his extraordinary power of preventively detaining the detenu. Perusal of the return filed on behalf of respondent No. 2 shows that, according to respondent No. 2, the observation in paragraph 33 of the grounds of detention to the effect that he is satisfied that it is necessary to detain the detenu under the provisions of the Act to prevent him from engaging in illicit traffic in psychotropic substances amounts to recording the satisfaction that the detenu is likely to indulge in the same activities in future if he is not placed under detention.
4. The learned Counsel for the petitioner placed reliance on the observations of this Court in its judgment in Writ Petition No. 846 of 1988 Kalamkadarath Parikunhamed Kutty v. Shri R.C. Iyer and others, decided on 1st February 1989 where, according to the learned Counsel, it is clearly laid down that the recording of satisfaction by the Detaining Authority that the detenu is likely to engage in the similar activities in future if not placed under detention is vital and that must find a place in the grounds. The learned Counsel also placed reliance on the following judgments of this Court :-
i. Alka Subhash Gadia v. Additional Secretary to the Government of India, ;
ii. Criminal Writ Petition No. 794 of 1988, Smt. Savitri Subramanium Iyer v. The Union of India and others, decided on 26th October 1988;
iii. Criminal Writ Petition No. 121 of 1991, Smt. Bharati Mahesh Jaggar v. Union of India and others, decided on 18th July 1991;
iv. Criminal Writ Petition No. 1113 of 1991 and accompanying writ petitions, Azad Alam v. The Union of India and others, decided on 14th November 1991;
v. Criminal Writ Petition No. 1016 of 1991, Babulal Tekchand Jain v. The Union of India and others, decided on 7th October 1991;
vi. Criminal Writ Petition No. 678 of 1991, Shri Mohammed Jamil Umar v. Shri Mahendra Prasad and others, decided on 17th September 1991; and
vii. Criminal Writ Petition No. 698 of 1991, Smt. Sunayana Ranjit Malkani v. The Union of India and others, decided on 17th September 1991.
The judgements referred to above reiterate the same principle which is laid down by this Court in Kalamkadarath Kutty’s case.
5. The learned Additional Public Prosecutor appearing for the respondents submitted that in the order of detention it has been mentioned by the Detaining Authority that he was satisfied that with a view to preventing the detenu from engaging in illicit traffic in psychotropic substances, it was necessary to pass the order of detention. According to the learned Additional Public Prosecutor, this averment was sufficient to convey to the detenu the reason why he was being detained and why the order of detention was passed against him. According to him, the omission with regard to the recording of the satisfaction mentioned above in the grounds would not in any way hamper the detenu in giving his reply to the order of detention and that being the case there was no violation of Article 22(5) of the Constitution of India. He therefore submits that the order of detention ought not be interfered with. It is to be found that precisely the above argument advanced on behalf of the respondents was raised in Writ Petition No. 846 of 1988 and a Division Bench of this Court has repelled this argument. The Division Bench observed that the Detaining Authority having set out the facts in existence on the basis of the existing state of things ought to have recorded its satisfaction that he apprehends that the detenu would indulge in prejudicial activities in future. It is to be seen here that an order of detention under section 3 of the Act can be made by the Detaining Authority with a view to prevent a person from engaging in illicit traffic in psychotropic substances. The need to prevent a person from engaging in illicit traffic in psychotropic substances arises because the Authority is satisfied that the person concerned is likely to engage in future also in illicit traffic in psychotropic substances if not preventively detained. Therefore, recording of such a satisfaction is necessary for the Detaining Authority to get the jurisdiction and power to make an order of preventive detention. Thus, recording of satisfaction to the above effect is a sine qua non for making an order of preventive detention.
6. It is to be seen that Article 22(5) of the Constitution of India provides certain safeguards to a person who is being detained under various laws pertaining to preventive detention. Under Article 22(5) of the Constitution, when a person is detained by virtue of an order under any such law, the Detaining Authority has to, as soon as possible, communicate to such person the grounds on which the order has been made and the detenu is to be afforded an opportunity of making a representation against the order. These are constitutional requirements which cannot be violated.
7. In the present case, the Detaining Authority has recorded its satisfaction as required under section 3 of the Act to the effect that with a view to prevent the detenu from indulging in the prejudicial activity in question, it is necessary to detain him. It has also furnished to the detenu the grounds on which the order has been made. However, the grounds which have been furnished to the detenu merely narrate the events which have already occurred and the materials which were placed before the Detaining Authority at the time of making the order of detention. The grounds of detention also contain inferences drawn by the Detaining Authority from the materials placed before it. One inference that has to be drawn by the Detaining Authority on the basis of the materials placed before it before making an order is that the detenu is likely to indulge in such prejudicial activities in future also. If the Detaining Authority does not record the satisfaction that the detenu is likely to indulge in the prejudicial activities in future also, the very basis of the detention order disappears. Hence this satisfaction must be expressly recorded in the order of detention or the grounds supporting such order. It may be pointed out here that recording a satisfaction that the person concerned is likely to indulge in the prejudicial activities in future also is necessary for vesting the jurisdiction and power in the Detaining Authority to make the detention order and therefore the grounds of detention must explicitly record the satisfaction of the Detaining Authority. Therefore, the submission made on behalf of the respondents that the satisfaction of the Detaining Authority can be inferred from the observations in paragraph 33 of the grounds of detention to the effect that the detenu is being detained to prevent him from engaging in illicit traffic in psychotropic substances cannot to accepted.
8. The learned Additional Public Prosecutor next submitted that in the affidavit filed by the Detaining Authority in the present petition, the Detaining Authority has stated that at the time of making the order, he was satisfied that unless preventively detained, the detenu would revert to similar prejudicial activities in future. Therefore, according to the learned Additional Public Prosecutor, any deficiency or lacunae in the order of detention was cured because of the above referred averment in the affidavit of the Detaining Authority. In support of this proposition, he relied on the judgments of this Court in –
i. Criminal Writ Petition No. 12 of 1995, Shri Omprakash Parshuram Rihal v. Shri C.D. Singh, decided on 18th July 1995; and
ii. Criminal Writ Petition No. 1601 of 1992, Smt. Leena Chandrakant Shiriskar v. Shri D.K. Jain, decided on 26th/27th July 1993.
He also relied upon the observations made by the Supreme Court in its judgment in Prakash Chandra v. Commissioner and Secretary, Govt. of Kerala, . Perusal of the judgment of this Court in the case of Omprakash Rihal referred to above shows that the decision relates to the recording of satisfaction by the Detaining Authority to the effect that though at the time of making the detention order the detenu was in judicial custody, still the order of preventive detention was necessary. In its judgment in this case this Court has held that if the order of detention or the grounds accompanying it shows awareness on the part of the Detaining Authority that at the time of making the order of detention, the Detaining Authority was alive to the fact that the detenu was in judicial custody, then in the affidavit filed before this Court the Detaining Authority can give details about satisfaction that inspite of the detenu being in judicial custody, why it was necessary to make an order of preventive detention. To the same effect is the ratio of the judgment of this Court in Leena Shiriskar’s case. The law laid down by this Court in the above two decisions relied on by the learned Additional Public Prosecutor is clearly inapplicable to the facts in the present case. Firstly, in both the cases what was allowed to be furnished in affidavits were the details of the satisfaction which is clearly recorded in the detention order. In the present case, there is total absence of the satisfaction by the Detaining Authority that the detenu, if not preventively detained, is likely to indulge in the prejudicial activities. It may further be pointed out here that the recording of satisfaction about the likelihood of the person concerned indulging in prejudicial activities is a condition precedent for vesting the power in the Detaining Authority for making an order of detention. The consideration as to whether, though it is necessary to detain the person concerned preventively because he is likely to indulge in the prejudicial activities in future, should he be so detained at this juncture because he is in judicial custody are two different things. One relates to the very vesting of power in the Authority and the other relates to the advisability of making the order at that juncture or point of time. The two requirements cannot be said to be on the same footing. It may be further pointed out here that after recording a satisfaction that the person concerned is likely to indulge in the prejudicial activities in future, the Authority gets the jurisdiction or power to make the order. The subsequent stage is for the Authority to consider whether the order of preventive detention is to be made immediately though at that point of time the person concerned is in judicial custody. The law on the point that has been pointed out is that if the Authority shows its awareness in the grounds of detention that it was aware that the person concerned was in judicial custody at that point of time, still it considered it necessary to make the order of preventive detention against him, the Authority can substantiate this satisfaction recorded by it in the grounds of detention by placing materials before the Court by way of an affidavit in the event of the order being challenged. In the present case, there is total absence of the satisfaction being recorded by the Detaining Authority. Therefore, there is no question of the Detaining Authority being permitted to give the details about the satisfaction.
9. The learned Additional Public Prosecutor relied on the observations of the Supreme Court in paragraph 81 of its judgment in Prakash Chandra’s case (supra). Perusal of the observations of the Supreme Court in paragraph 81 of the judgment, in our opinion, do not in any way help the respondents. The present case is of no-compliance with one of the basic requirements for vesting of powers in the Detaining Authority to make an order of preventive detention and, therefore, no amount of pragmatic approach and common sense can condone such a basic deficiency. The Supreme Court in the same paragraph 81 has observed “Preventive detention unlike punitive detention which is to punish for the wrong done, is to protect the society by preventing wrong being done.” Thus it is clear that an order of preventive detention would be made only after the authority is satisfied that the wrong is likely to be done. Thus, satisfaction of the Detaining Authority that the person concerned is likely to indulge in an activity prejudicial to the interest of the society, if not preventively detained is absolutely necessary.
10. It becomes clear from what has been observed above that in the detention order, the Detaining Authority, respondent No. 2, has failed to record a satisfaction that the detenu is likely to indulge in prejudicial activities in future which was necessary to be recorded in order to vest in the Detaining Authority the power to make an order of preventive detention and therefore, the order of detention is invalid.
11. In the result, therefore, the petition succeeds and the order dated 26th May 1995 made by the respondent No. 2 is set aside. As stated above, the period of detention has already come to an end on 29th May 1996 and therefore there is no necessity of passing an order for release of the detenu. Rule made absolute in the above terms. No order as to costs.
