JUDGMENT
A.V. Savant, J.
1. This is a petition by the wife of the detenu who is known by six different names such as Abdulla Muthalib @ Ahmed Mutalib @ Ahmed Koya @ Abdulla Ahmed Muthalib @ Abdulla Ahmed Arancada @ A.C. Abdulla who was residing at Nagdevi, Bombay. By virtue of an order issued on 29th April, 1995 in exercise of the powers conferred by section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short “the PITNDPS Act”) the said detenu has been detained with a view to preventing him from engaging in illicit traffic in psychotropic substances. The said order of detention dated 29th April, 1995 was served on the detenu on 3rd May, 1995 alongwith the grounds of detention. The detenu had made his representation to the detaining authority viz. respondent No. 2 – the Principal Secretary to the Government of Maharashtra, Home Department (Special), Mantralaya, Bombay-32 on 16th May, 1995 which was rejected by the detaining authority on 17th May, 1995.
2. A reference to the Advisory Board was made under section 9(b) of the said PITNDPS Act on 29th May, 1995. Declaration under section 10(1) of the said Act that the officer specially authorised by the Central Government viz. respondent No. 5 – the Additional Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi – was satisfied that the detenu was likely to engage in illicit traffic i.e. to say export from India of psychotropic substances in the inland area of one hundred kilometers in width from the coast of India falling within the territories of the State of Maharashtra which is an area highly vulnerable to such illicit traffic was made on 19th May, 1995 by the said respondent No. 5. On 2nd August, 1995 the Advisory Board submitted its report specifying in a separate paragraph thereof its opinion that there was sufficient cause for the detention of the detenu concerned. The order of confirmation was passed by the State Government under section 9(f) of the said Act on 16th August, 1995 after considering the report and opinion of the Advisory Board and the entire material that was placed before the State Government. The said order of detention dated 29th April, 1995, the grounds of detention, declaration made by the Additional Secretary to the Government of India on 19th May, 1995 under section 10(1) of the Act, confirmation made by the State Government on 16th August, 1995 under section 9(f) of the Act and the detenu’s continued detention are all challenged before us in this petition filed by the wife of the detenu. A few facts leading to the detention may be stated as under :
3. Acting on the basis of the specific intelligence, officers of the Directorate of Revenue Intelligence (for short DIR), Bombay intercepted two vehicles on 26th February, 1995 – a truck bearing registration No. MH-01-H-4828 and a tempo bearing registration No. MMK-3560 at Nita Road Lines Compound, Opp : Garba Devi Mandir, Narayan Gajanan Acharya Marg, Govandi, Bombay 400 088. Both the vehicles were parked back to back. The doors of both the vehicles were open and on boarding the said vehicles the officers of DIR alongwith the panchas found four persons who disclosed their names as (i) Abdulla Ahmed Arancada, the detenu, (ii) Palwinder Singh Kartar Singh, (iii) K.C. Anilkumar and (iv) Rajendra Singh Pritam Singh Mistry. The first two persons were in the truck whereas the next two persons were in the tempo. The officers also found that the said vehicles were containing 62 HDPE sacks (High Density Polyura Ethyene sacks) and 30 bags of Ambuja Cement. From the said 62 HDPE sacks, the officers recovered 2480 polythene bags in all containing 2083.200 kgs. of Mandrax tablets valued in the international market at Rs. 2,08,32,000/-. They were seized under the panchanama dated 26th February, 1995. Statements of all the four persons were recorded. Statement of the detenu was recorded under the panchanama made on 27th February, 1995 wherein he stated that he was doing business of travel agency in the name of M/s. Fujri Travels. The detenue admitted to have met Anilkumar Pillai in December 1994 in connection with the export of Mandrax Tablets to South African countries. He agreed to work with Anil Kumar for a handsome monetary consideration for smuggling the Mandrax tablets. The detenu agreed that when he had met Anilkumar on 23rd February, 1995 the later had asked him to arrange for a godown for storing 2 tonnes of Mandrax tablets and a tempo for transporting the same. It was decided that the detenue would bring the tempo on 25th February, 1995 near R.K. Studio where Anil Kumar would meet him to give delivery of the Mandrax Tablets. It appears that pursuant to this arrangement the detenu reached Chembur, though little late, on 26th February, 1995, in the morning, where Anil Kumar was waiting for him. The detenue escorted the tempo where the truck was parked and when the Mandrax tablets were being transferred from the truck to the tempo, all the four persons were apprehended by the D.I.R. Officers. There is no dispute before us that Mandrax tablets found with the detenue contained methaqualone which is a psychotropic substance.
4. Pursuant to the above incident of 26th February, 1995, the detenu and three others were arrested on 27th February, 1995. A remand application was made on 28th February, 1995. Remand was initially obtained till 13th March, 1995. Subsequent remand applications were also granted and there is no dispute before us that on 29th April, 1995, when the order of detention was passed under section 3(1) of PITNDPS Act, as also on 3rd May, 1995 when it was served on the detenu, he was in jail. Incidentally, it may be mentioned that the detenu was also wanted in a murder case in Kerala where he was the co-accused alongwith six other accused. Though the other six accused were sentenced to life imprisonment for the offence of murder, the detenu, having obtained bail in that case, had jumped the bail and was absconding at the relevant time. The material before the detaining authority led it to record a finding that it was satisfied with respect to the detenu that with a view to preventing him from engaging in illicit traffic in psychotropic substances, it was necessary that the detenu should be detained under section 3 of the said PITNDPS Act.
5. The petition was admitted on 17th May, 1995. The affidavits in reply have been filed firstly, by Shri C.D. Singh, the Principal Secretary to the Government of Maharashtra, Home Department – respondent No. 2 who is the detaining authority, elaborating the entire material on the basis of which he had recorded his subjective satisfaction, that it was necessary to detain the detenu with a view to preventing him from engaging in illicit traffic in psychotropic substances. It is stated in the said affidavit dated 13th September, 1995 that the entire record and the relevant facts including the fact that the detenu was in jail and the imminent possibility of his getting bail and further imminent possibility of his indulging in similar prejudicial activities of illicit traffic in psychotropic substances was considered before passing the order of detention. With reference to the retraction of the confessional statement, it was stated that the retraction was an afterthought. There is also a reference to the consideration of the provisions of sections 37 of the N.D.P.S. Act, 1985 as also to the fact of absconding while on bail in the murder case. Taking into consideration the entire material on record the detaining authority has stated in its affidavit that there was reasonable apprehension in its mind that if the detenu was released on bail he would indulge in similar prejudicial activities in future and that it would not be possible to deal with him effectively under the ordinary law of land and with a view to preventing him from indulging in illicit traffic in psychotropic substances, it was necessary to detain him.
6. Another affidavit has been made on 16th September, 1995 by Shri V.S. Kambli, Desk Officer, Government of Maharashtra regarding the service of the detention order, grounds of detention and the committal order regarding the place of detention issued in accordance with law. Desk Officer Kambli has also referred to the reference made under section 9(b) of the PITNDPS Act, to the Advisory Board on 29th May, 1995, and the confirmation of the order under section 9(f) of the said Act in accordance with law. A further affidavit has been made by Shri C.D. Singh, the detaining authority on 13th October, 1995 in respect of some of the amended averments in the petition denying the correctness of the said averments. Another Desk Officer from the Home Department Shri Nalawade has made the affidavit on 3rd June, 1996 with respect of the proceedings that took place before the Advisory Board which interviewed the detenu and after considering the entire material before it found that there was sufficient cause for his detention as contemplated by section 9(c) of the PITNDPS Act.
7. On behalf of the Union of India and the concerned Additional Secretary who has issued the declaration under section 10 of the PITNDPS Act, Shri A.K. Srivastava has made an affidavit on 1st February, 1996 setting out the manner in which the proposal for issuance of a declaration under section 10(1) was received by the declaring authority and stating that the relevant material including the additional documents sent alongwith the said proposal as set out in the proforma were considered by the declaring authority. After referring to the entire material including the additional documents which were sent to the declaring authority, it is stated that the declaration was issued under section 10(1) of the Act on 19th May, 1995.
8. In the light of the above, we have heard all the learned Counsel at length, viz. Shri Karmali for the petitioner. Smt. Tahilramani for respondent Nos. 1 to 4, namely, the State Government and its officers and Shri Agarwal for respondent Nos. 5 and 6, namely, Union of India and the declaring authority.
9. The following contentions have been raised before us :
i) That the detaining authority, respondent No. 2, has shown its awareness of the fact that the detenu was in custody on 29th April, 1995, yet the detaining authority has not recorded its satisfaction, as is required by law, that despite the detenu being in judicial custody, it was satisfied, that with a view to preventing him from engaging in illicit traffic in psychotropic substances it was necessary to detain him. Hence, it is contended that the order of detention dated 29th April, 1995 is bad in law since the detention is impermissible in law and hence illegal.
ii) While issuing the declaration under section 10(1) of the PITNDPS Act, the declaring authority respondent No. 5 had not considered the “additional documents” placed before it. As a result of the failure on the part of the declaring authority to consider the said “additional documents” before issuing the declaration under section 10(1). Counsel contends that the declaration has been issued in slipshod manner and is, therefore, illegal and bad in law.
iii) It is contended that the allegation that the detenu was involved in a murder case is wholly irrelevant and extraneous for the purposes of recording the satisfaction required by section 3(1) of the said PITNDPS Act and, therefore, the satisfaction is vitiated on account of an irrelevant circumstances.
iv) The Advisory Board did not forward the record of its proceedings to the State Government when it made its report and sent its opinion on 2nd August, 1995 as required by section 9(c) of the said PITNDPS Act. The second limb of this argument is that assuming that the Advisory Board had sent the record of its proceedings alongwith its report and opinion to the State Government, while passing the order of confirmation under section 9(f) of the Act on 16th August, 1995, the State Government has not considered the record of the proceedings of the Advisory Board and hence the order of confirmation issued on 16th August, 1995 is bad in law.
v) The detaining authority has not shown its awareness to the fact that the detenu had retracted his statement on 28th February, 1995 and assuming that the detaining authority had shown its awareness to the fact of retraction of the statement, the detaining authority has not reflected its reaction to it in the order of detention and hence the order of detention is bad in law.
vi) Lastly, it was contended that while furnishing the grounds of detention one of the many documents served on the detenu namely the copy of Remand Application dated 28th February, 1995, though legible, contains an illegible endorsement in the margin in handwriting and hence it is violative of the guarantee enshrined under Article 22(5) of the Constitution of India and hence renders the detention order illegal.
10. With regard to the first contention that the detention is impermissible in law and hence illegal on account of the fact that the detenu was in judicial custody and there is failure to record the requisite satisfaction of likelihood of getting bail and indulgence in similar prejudicial activities justifying the passing of an order of detention, Shri Karmali has invited our attention to several decisions of the Supreme Court. Similarly, both Shri Agarwal and Smt. Tahilramani appearing for the respondents have also invited our attention to several decisions of the Supreme Court as also of this Court. We do not consider it necessary to refer to each and every decision cited at the bar but a reference to those which have a direct bearing on the points raised may briefly be made.
11. In the case of Rameshwar Shaw v. District Magistrate, Burdwan and another, reported at it has been clearly stated that the satisfaction of the detaining authority to which section 3(1) refers is subjective satisfaction and is not justifiable except in certain exceptional circumstances. However, it is not open to the detenu to ask the Court to consider the question as to whether the said satisfaction of the detaining authority can be justified by applying certain objective test with reference to the question of detention of the person who is already in custody, it has been observed that where the authority acting bona fide considers his past conduct and antecedent history which justify a conclusion that if the said person is not detained, he may indulge in prejudicial activities in the event of his being released on bail; the order of detention could be made. It is true that in the facts of the case before the Constitution Bench the learned Judges came to the conclusion that it was not possible to record a satisfaction that the detenu in that case needed to be detained while he was in judicial custody. However, in para 10 of the Judgment at page 338 of the report (A.I.R. 1964 S.C.) it has been observed that it would be both inexpedient and undesirable to lay down any inflexible test and the question will have to be considered on the facts of each case.
12. In N. Meera Rani v. Government of Tamil Nadu and another, reported at , the Supreme Court on a review of the entire law on the subject observed that conclusion about the validity of the detention order in each case has to be reached in the facts of the particular case and observations made in each of the reported decisions, which were considered, had to be read in the context in which they were made. In para 21 of the judgment at page 2038 of the report the Supreme Court observed thus:
A ‘review’ of the above decisions reaffirms the position which was settled by the decision of a Constitution Bench in Rameshwar Shaw’s case (supra). The conclusion about validity of the detention order in each case was reached on the facts of the particular case and the observations made in each of them have to be read in the context in which they were made. None of the observations made in any subsequent case can be construed at variance with the principle indicated in Rameshwar Shaw’s case (supra) for the obvious reason that all subsequent decisions were by benches comprised of lesser number of Judges. We have dealt with this matter at some length because an attempt has been made for some time to construe some of the recent decisions as modifying the principle enunciated by the Constitution Bench in Rameshwar Shaw’s case (supra).
Then in para 22 of the Judgment, the Supreme Court in Meera Rani’s case summed up its conclusions in the following words at page 2038:
We may summarise and reiterate the settled principle. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case: preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordinarily it is not needed when the detenu is already in custody: the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release. This appears to us to be the correct legal position.
13. Then again in Dharmendra Suganchand Chelawat and another v. Union of India and others, reported at , the Supreme Court had occasion to consider the question of detention of a person who was in custody and the Supreme Court observed that the grounds of detention must show that the detaining authority was aware of the fact that the detenu was already in custody and that there were compelling reasons for passing the order of detention. In Kamarunnissa v. Union of India and others, reported at , the Supreme Court clearly laid down that even in case of a person in custody a detention order can be validly passed if (i) the authority passing the order is aware of the fact that he is actually in custody and (ii) if he has reason to believe that on the basis of reliable material placed before it (a) there is real possibility of his release on bail and (b) on being so released he would in all probability indulge in prejudicial activities and (iii) it is felt essential to detain him to prevent him from so doing.
14. Apart from the ratio of the above mentioned decisions, which we have highlighted, Shri Agarwal and Smt. Tahilramani placed strong reliance on the following two decisions of the Supreme Court:—
In Birendra Kumar Rai v. Union of India and others, reported at 1993 Cri.L.J. 158, the detenu was already in jail in connection with the offences punishable under the Arms Act and the Motor Vehicles Act. He was arrested on 21st November, 1990 in connection with the said offences and while his bail application was pending, an order of detention was passed under the PITNDPS Act on 4th December, 1990 which was served on him on 10th December, 1990. The Supreme Court considered the entire material that was placed before the detaining authority and came to the conclusion that there was voluminous evidence placed before the detaining authority to come to the conclusion that it was necessary to detain him under the PITNDPS Act. This was despite the fact that the complaint under the N.D.P.S. Act was pending against the detenu in respect of which provisions of section 37 of the N.D.P.S. Act would be attracted. It appears from para 9 of the judgment at page 161 of the report, that if the detaining authority was aware of the fact that the detenu was in jail and that he had applied for bail and had recorded its finding of the possibility of his being released on bail and indulging in prejudicial activities, it was sufficient to justify passing of the order under section 3 of the PITNDPS Act.
15. Similarly in Smt. Azra Fatima v. Union of India and others, , the Supreme Court had occasion to consider a similar situation where an accused was arrested for the offence punishable under the N.D.P.S. Act on 22nd October, 1988, his application for bail was rejected on 21st November, 1988 and still the order of detention was issued on 19th December, 1988. Dealing with the similar contention in para 13 of the Judgment at page 1767 of the report, it was observed that the material placed before the detaining authority and the facts mentioned in the grounds of detention clearly show that the detaining authority was fully aware of the fact that the bail application filed by the detenu had been rejected by the Magistrate and the detaining authority was also aware of the fact that two other detenus arrested and detained had already been released on bail. The detaining authority had further arrived at the conclusion that the detenue being in judicial custody may, under the ordinary law of land, be granted bail and, thereafter would be in a position to continue to pursue his nefarious activities and thus with a view to preventing him from indulging in prejudicial activities, it was necessary to detain him under section 3(1) of the Act. The Supreme Court upheld the order of detention despite the fact that the accused was detained in connection with the offence punishable under the N.D.P.S. Act and his application for bail was rejected.
16. We may now briefly refer to a few decisions of this Court. In Criminal Writ Petition No. 1601 of 1992 of Leena Shiriskar v. Union of India, decided by Tipnis and Dudhat, JJ., on 26th and 27th July, 1993, a similar contention was raised. After considering the relevant authorities the Division Bench referred to the affidavits filed on behalf of the detaining authority and came to the conclusion that despite the detention order being issued at a time when the detenu was in judicial custody, the same was valid. The contention that no order of detention can be issued if the accused is in jail in connection with an offence punishable under the N.D.P.S. Act, 1985 or even when his application for bail has been rejected, has been, in terms, turned down in a series of decisions of this Court which have been referred to in para 9 of the Judgment in Leena Shiriskar’s case (supra). This Court has observed that there is always some possibility of bail being granted even to an accused in a N.D.P.S. case. In the case of Smt. Azra Fatima v. Union of India being Criminal Writ Petition No. 87 of 1989 decided by another Division Bench it was held that even if there is a remote possibility of the detenu getting bail, the detaining authority can validly pass the order of detention.
17. Similar view has been taken by another Division Bench of M.L. Pendse and D.J. Moharir, JJ., in Criminal Writ Petition No. 120 of 1990, decided on 11th April, 1990. That was also a case of detention under the PITNDPS Act and the order of detention was issued on January 24, 1989 which was served on the detenue on 31st January, 1989 while he was in judicial custody in connection with an offence punishable under the N.D.P.S. Act. The detenue was arrested on October 19, 1988 and the detenue had not even applied for bail in the N.D.P.S. case. Despite this, the Division Bench took the view in para 3 of its Judgment that there was nothing to prevent the detenu from applying for release on bail whenever convenient. In this view of the matter, the Division Bench came to the conclusion that passing of an order of detention in respect of a detenue who is already in jail in connection with an offence punishable under the N.D.P.S. Act was not impermissible in law.
18. In Criminal Writ Petition No. 12 of 1995 decided by another Division Bench of A.C. Agarwal & Moorthy, JJ., on 18th July, 1995, the same question arose before this Court. That was a case where detention order was issued on 24th November, 1994 under the PITNDPS Act. The detenue was already arrested in connection with the offence punishable under the N.D.P.S. Act on 10th June, 1994 and his application for bail made on 16th July, 1994 was rejected on 10th October, 1994. Making a reference to some of the Supreme Court decisions, which we have referred above, this Court took the view that it was possible that the detenu may again apply for bail and may in all probability be released on bail. In this view of the matter, the Division Bench came to the conclusion that there was likelihood of his indulging in prejudicial activities in the event of his being released on bail and hence, passing of an order of detention was justified. While we are bound by the ratio of the decision of the Supreme Court, we are in respectful agreement with the ratio of the decision of this Court mentioned above.
19. In the light of the above legal position, we will turn to the pleadings before us. However, before doing that, we would like to observe that while the exercise of the power of preventive detention must be strictly within the safeguards provided by the Constitution and the law, there could be no dispute that the purpose of exercise of all the powers by the Government must be to promote the common well-being and must be to subserve the common good. It is necessary to protect the individual right in so far as practicable which are not inconsistent with the well-being of the Society. The various procedural safeguards must be construed in proper light and from pragmatic commonsense point of view. This has been observed by the Supreme Court while dealing with the question of preventive detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. 1974 in the case of Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala and others, reported at . While making the above observations in Para 81 of the Judgment, at page 701 of the report, the Supreme Court has concluded as under:—
“We must remember that observance of written law about the procedural safeguards for the protection of the individual is normally the high duty of public official but in all circumstances not the highest. The law of self-preservation and protection of the country and national security may claim in certain circumstances higher priority”.
20. In the case before us what was evident from the record before the detaining authority is that the detenu was involved in the racket of export of Mandrax tablets. He was known by as many as six different names. He was caught red-handed while indulging in the act of transfer of Mandrax tablets from one vehicle to another. The ground of detention record the fact, after setting out the entire history of his previous conduct, that the detenu was involved with a gang of trafficers in Mandrax tablets to South African countries and that in the event of his being released on bail, he would indulge in similar prejudicial activities. In the affidavit of Shri C.D. Singh made on 13th September, 1995, it is categorically stated in para 5 as under:—
“It is crystal clear therefore, that there was a compelling necessity to issue the order of detention while detenu was in custody which has been accordingly stated by me in the Grounds of Detention. The gravity of the prejudicial activity in which the detenu is involved, pending bail application filed by him, imminent possibility of his getting bail and the further imminent possibility of his indulging in similar prejudicial activities in future upon his release on bail were the pressing and compelling reasons which prompted me to issue the impugned order of detention though the detenu was in custody. I had applied my mind to every vital aspect of the matter. My subjective satisfaction has been correctly recorded. I deny that my satisfaction is impaired rendering the order of detention mala fide, null and void”.
It must be stated in fairness to Shri Karmali that no argument was advanced before us challenging the subjective satisfaction recorded by the detaining authority that in the event of the detenu being released on bail, he would in all probability indulge in prejudicial activities.
21. In connection with the first contention a suggestion was also made by Shri Karmali that in view of the provisions of section 37 of the N.D.P.S. Act, 1985 the detenue was not likely to be released on bail in the N.D.P.S. case and this aspect ought to have been considered while passing the order of detention. There is a specific answer to this contention and we find that in para 13 of the Affidavit of Shri C.D. Singh made on 13th September, 1995 where it has been stated as under:—
“13. With reference to para 5(ix) of the petition, I say that when I issued the order of detention, I had taken into consideration the provisions of section 37 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. Section 37 of the N.D.P.S. Act does not totally prohibit the grant of bail. The possibility of the detenu being released on bail cannot be ruled out. I deny that I ought to have refrained for issuing the order of detention”.
(We must clarify that the reference to section 37 of the PITNDPS Act, 1988 must be read as reference to section 37 of the N.D.P.S. Act, 1985. PITNDPS Act, 1988 has only 16 sections and what is relevant and what was considered by the detaining authority was section 37 of the N.D.P.S. Act, 1985. PITNDPS Act is obviously a typing error). We find no merit in this suggestion of Shri Karmali and hence reject the same.
22. It is also clear from the observations of the Constitution Bench in Rameshwar Shaw’s case that the subjective satisfaction recorded by the detaining authority is normally not justiciable, except in certain exceptional circumstances, as set out in the case of Khudiram Das v. The State of West Bengal and others, reported at . However, none of the exceptional circumstances, as indicated in para 9 of the decision, in Khudiram Das’s case has been pointed out here and hence, it is not necessary for us to elaborate on the ratio of the decision in the case of Khudiram Das. In our view, the subjective satisfaction recorded by the detaining authority in the case before us has not been vitiated by any of the circumstances indicated in para 9 of the decision in the case of Khudiram Das. This is not a case of a dishonest exercise of powers or an exercise of powers for an improper motive. This is not a case of the detaining authority acting under the dictates of another authority. The satisfaction recorded by the detaining authority is after taking into account all the relevant and germane circumstances. No irrelevant or extraneous circumstance has been taken into account while arriving at the subjective satisfaction for passing the order of detention under section 3 of the PITNDPS Act. In this view of the matter, we are of the view that there is no merit in the first contention raised by Shri Karmali that since the detenu, was in judicial custody on 29th April, 1995 the passing of the order of detention was vitiated by any mala fides, either legal or otherwise or that passing an order of detention against the detenu in this case who was already in judicial custody was impermissible in law and hence, illegal. We reject the said contention.
23. The second contention is that while issuing the declaration under section 10(1) of the PITNDPS Act, the declaring authority respondent No. 5 has not considered the “additional documents” placed before it and hence, the said declaration is bad in law. Our attention has been invited to the proposal that was sent on 9th May, 1995 by the sponsoring authority viz. the Assistant Collector (Narcotics), Directorate of Revenue Intelligence, Colaba, Bombay, to the declaring authority in the Ministry of Finance, Department of Revenue, at New Delhi. The proposal was accompanied by certain documents and in para 5 of the proposal viz. the covering letter dated 9th May, 1995, Item (v) reads as under:-
“(v) Additional documents as shown in Col. No. 11 of the proforma”.
Col. 11 mentions four documents as under:—
“(1) Remand Application No. 44/95 dated 4-5-95 and Court’s order thereon.
(2) Additional reply to bail application dated 10-4-95 of Shri Abdulla Ahmed Arancada & Court’s order thereon.
(3) Misc. Application No. 265/1995 dated 5-5-95 of Abdulla Ahmed Arancada on medical grounds
(4) Department’s reply to the Misc. Application 265/1995 dated 5-5-95.
This contention has been taken in amended ground 5-A(iii) at page 17-K of the petition. The declaration issued by the Additional Secretary, Government of India, Ministry of Finance and Department of Revenue on 19-5-1995 is at Exhibit F/pg. 41. The affidavit of Shri A.K. Srivastava on behalf of respondents No. 5 & 6 viz. the declaring authority and the Union of India sets out in para 4 that the “additional documents” were considered by the declaring authority, alongwith ground of detention and the material served on the detenue. The said para 4 in the affidavit of Shri A.K. Srivastava may be reproduced as under:—
“4. As regards para 5-A(iii) it is submitted that the additional documents i.e. (i) Remand Application No. 44/95. dated 4-6-95 and Court’s order thereon, (ii) Additional Reply to bail application, dated 10-4-95 of Shri Abdulla Ahmed Arancada and Court’s order thereon, (iii) Misc. Application No. 265/95, dated 5-5-95 of Abdulla Ahmed Arancada on medical grounds, and (iv) Department’s reply to the Misc. Application No. 265/95 dated 5-5-95 alongwith grounds of detention and the documents relied upon by the detaining authority were placed before the declaring authority and the same were perused by the declaring authority. Declaring Authority has considered the grounds of detention and the material served on the detenue and issued the declaration. Thus, there is no merits in this contention also”.
24. Thus, it appears to us that while issuing the declaration under section 10(1) of the PITNDPS Act, the 5th respondent Additional Secretary had considered the entire material, including the “additional documents”, that were placed before him. Since the order of detention was issued on 29th April, 1995 and since the proposal was sent to the declaring authority at Delhi on 9th May, 1995, the sponsoring authority has taken care to send the “additional documents” which had come on record after the issuance of the order of detention. The four documents mentioned above are dated 4th May and 5th May, 1995. We have perused the said documents. They are the successive Remand Application, Bail Application and the replies filed thereto. It is clear to us from the pleadings summarised above that the declaring authority had taken into consideration these “additional documents” while issuing the declaration under section 10(1) of the PITNDPS Act.
25. In the background of this factual position, we will refer to the authorities on the second contention raised before us. Reliance was sought to be placed by Shri Karmali on the observations in the case of Shri Jagprit Singh v. Union of India, reported in Judgment Today 1990(3) S.C. 293, to contend that if the issuance of the declaration was vitiated in any manner, it would affect the detenu’s right to make the representation to the declaring authority under Article 22(5) of the Constitution. In the case of Shri Jagprit Singh, the declaration did not make the detenu aware of his right of representation against the declaration. However, the Supreme Court observed in para 5 at page 294 of the report that there was some controversy as to whether the detenu has right to make a representation to the declaring authority or not. But the Supreme Court declined to express any opinion on this question for the purpose of that case. In Jagprit Singh’s case, though the declaration was made on 4th October, 1988, the detenu was informed as late as on 17th November, 1988, that is to say one month and 13 days later about his right to make a representation. This delay was held to be quite unreasonable in the facts of that case. However, we must hasten to add that in the declaration before us, which was issued on 19th May, 1995, the declaring authority has categorically observed in the concluding para that the detenu has a right to represent to the declaring authority, the Central Government, as also to the State Advisory Board against the declaration in the manner specified in the Grounds of Detention. Thus, in our view, there is nothing in the observations in Jagprit Singh’s case which supports the petitioner’s contention.
26. Reliance was also sought to be placed by Shri Karmali on the observations of the Supreme Court in the case of Satar Habib Hamdani v. K.S. Dilip Sinhji and others, reported at . In para 7 of the Judgment, at page 420 of the Report it has been observed that the Advisory Board will necessarily have to go behind the declaration to consider the question whether there is sufficient cause for continued detention. The two safeguards provided to the detenu against continued detention, at that stage, are the application of mind by the specified authority before making a declaration and the consideration of the question by the Advisory Board. No breach of any of these safeguards is alleged before us and hence, in our view, the ratio of the said decision in Satar Habib Hamdani’s case can have no application to the facts of the case before us.
27. Similarly, the ratio of the Supreme Court decision in the case of Abdul Rehiman v. State of Maharashtra and others, reported at 1996 Supreme Court Cases (Cri.) 83 on which Shri Karmali sought to place reliance, can have no application to the facts of the present case. The observations in para 6 of the Judgment in Abdul Rehiman’s case show that the declaration was made on the ground that there was a violation of the condition of bail and this assumption was found to be factually incorrect. Consequently, the declaration made on such incorrect assumption of the violation of the condition of bail was held to be illegal and liable to be quashed. In the case before us, there is no incorrect assumption which has crept into the process of consideration of the relevant material before issuance of the declaration under section 10 in the present case. Hence, with respect, the ratio of the decision in Abdul Rehiman’s case can have no application in the facts of the case before us.
28. As against the above authorities on which Shri Karmali sought to place reliance in support of his second contention, Shri Agarwal and Smt. Tahilramani invited our attention to the Supreme Court decision in the case of Smt. Hawabi Sayed Arif Sayed Hanif v. L. Hmingliana and others, reported at . Relying upon the observations made in para 13 of the decision at page 815 of the Report, Counsel for the respondents contended that it is not possible to equate the right to make a representation as against the declaration with the right to make a representation against the order of detention, which right is guaranteed by Article 22(5) of the Constitution of India. The Supreme Court in para 13 of its Judgment in Smt. Hawabi Sayed’s case referred to its earlier decision in the case of Smt. Azra Fatima v. Union of India and others, reported at and came to the conclusion that the contention regarding delayed communication of declaration vitiating the order of detention was liable to be rejected.
29. In view of the above, we find no merit in the second contention raised by Shri Karmali that while issuing the declaration under section 10(1) of the PITNDPS Act the declaring authority has not considered the “additional documents” placed before it and this has resulted in the detenu’s right under Article 22(5) being vitiated. On facts, we find that the additional documents were considered by the declaring authority and hence, there is no merit in the second contention raised by Shri Karmali.
30. The third contention is that the consideration of the fact of involvement of the detenu in a murder case in Kerala is wholly irrelevant and an extraneous circumstance for recording the satisfaction for passing the order of detention under section 3(1) of the PITNDPS Act and hence, the order of detention is bad in law. A perusal of the record would show that in the grounds of detention the first 14 paragraphs deal with prejudicial activities of the detenu engaging himself in the illicit traffic of psychotropic substances for preventing which the order of detention has been issued under section 3(1) of the said Act. The background of the detenu and the incident of 26th February, 1995 in connection with illegal traffic of a huge quantity of Mandrax tablets has been elaborated by the detaining authority from para 1 till para 14 of the Grounds of Detention. There is not a whisper in these 14 paragraphs that the detenu was also involved in a murder case in Kerala. After setting out the elaborate facts of the detenu being engaged in illicit traffic of psychotropic substances viz. the export of Mandrax tablets to South African Countries, the detaining authority has in the opening sentence of para 15 recorded the following subjective satisfaction :
“From all the above discussion and material placed before me, it is clear that you are involved with a gang of drug traffickers in Mandrax tablets to South African Countries”.
It is this subjective satisfaction, alongwith other circumstances viz. likelihood of getting bail and indulging in similar prejudicial activities, in future which is the basis of the issuance of the order of detention. The basic facts considered for recording this subjective satisfaction elaborately deal with the past conduct and antecedent of the detenu, on the basis of which an inference can be drawn in presenti about the future course of conduct in which he was likely to indulge. It is only incidentally in para 15 that a reference is made to the fact that the detenu was absconding after having obtained bail in the murder case in Kerala. It is only in connection with his having jumped bail that for giving details of the said fact, a reference is made to the murder case in Kerala. In the affidavit made by Shri C.D. Singh on 13th September, 1995 he has categorically stated in para 14 that while recording his satisfaction there is only a reference to the background of the detenu viz. his involvement in the murder case. However, that does not constitute the basic fact on which the order of detention was issued. The order of detention has been issued on the basis of the details of the conduct of the detenu and the other attendant circumstances which give rise to a reasonable apprehension that if the detenu is released on bail, he will indulge in similar prejudicial activities in future.
31. However, what Shri Karmali contended was that this is an irrelevant circumstance vitiating the order of detention. Reliance was sought to be placed again on the observations of the Supreme Court in the case of Khudiram Das’s case, . We have already indicated briefly, the extraneous circumstances indicated by the Supreme Court in para 9 of its Judgment in the case of Khudiram Das which may vitiate the order of detention such as dishonest exercise of power, exercise of power for improper purpose, exercise of power at the behest or dictates of some other authority, etc. We do not think that the ratio of the observations in para 9 and para 15 of the Judgment of the Supreme Court in Khudiram Das’s case can have any application to the facts of the present case.
32. Similarly, the ratio of the observations in the case of Vashisht Narain Karwaria v. State of U.P. and another, reported at , can have no bearing on the contentions raised before us. In the case of Vashisht Narain Karwaria, the Supreme Court came to the conclusion in para 10 of the Judgment that certain extraneous material and averments which were not made mention of in the Grounds of Detention might have influenced the mind of the detaining authority to some extent one way or the other in reaching the subjective satisfaction to take the decision of directing the detention of the detenu. The contention that, had those extraneous material not been placed before the detaining authority, he might or might not have passed the order of detention was upheld by the Supreme Court and, thus, it was held that the detention order suffers from the vice of consideration of extraneous material vitiating the validity of the order. These observations are made in the facts of the said case where a conclusion was reached that the circumstances were not averred or made mention of in the grounds of detention, but were placed before the detaining authority. Nothing of the kind has happened in the case before us and, as observed by the Constitution Bench of the Supreme Court, in Rameshwar Shaw’s case (supra) the subjective satisfaction recorded by the detaining authority is not justiciable. It has been said in para 9 of the Judgement in Rameshwar Shaw’s case that it is also true that in deciding the question as to whether it is necessary to detain a person, the authority has to be satisfied that if such a person is not detained he may act in prejudicial manner and the conclusion can be reasonably reached generally in the light of the evidence of the past prejudicial activities of the said person. In para 10 of the Judgment, a caution has been sounded as under at pages 337/338 :
“In this connection, it is, however, necessary to bear in mind that the past conduct or antecedent history of the person on which the authority purports to act, should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of the person is necessary.”
The circumstance of the detenu having jumped bail and absconded while he was on bail in the murder case at Kerala has to be viewed in the light of this approach of the Constitution Bench of the Supreme Court in Rameshwar Shaw’s case. As stated earlier, at the end of para 10 in Rameshwar Shaw’s case, the Supreme Court has observed that it is both inexpedient and undesirable to lay down any inflexible test and the question about the validity of the satisfaction of the authority has to be considered in the facts of each case. Viewed in the light of these decisions, we do not find that if after recording the subjective satisfaction in the light of the relevant circumstances mentioned in the first 14 paragraphs of the grounds of detention, a reference is made to the incidental fact that the detenu was absconding, having jumped bail in a murder case, it is an irrelevant circumstance vitiating the subjective satisfaction recorded by the detaining authority. We, therefore, reject the third contention raised on behalf of the petitioner.
33. The fourth contention raised by Shri Karmali is that the Advisory Board did not forward the record of its proceedings to the State Government while making the report and sending its opinion as required by section 9(c) of the PITNDPS Act. The second limb of this argument is that, assuming that the Advisory Board had sent the record of its proceedings alongwith its report and opinion to the State Government, while passing the order of confirmation under section 9(c) of the Act on 16th August, 1995, the State Government had not considered the record of the proceedings of the Advisory Board and hence the order of confirmation issued on 16th August, 1995 was bad in law. On this point, the relevant dates, as stated earlier, are as under :—
34. The order of detention was issued on 29th April, 1995. It was served on the detenu alongwith the Grounds of Detention on the 3rd May, 1995. Representation made by the detenu was rejected by the detaining authority on the 17th May, 1995. Declaration was issued by the declaring authority under section 10(1) of the Act on 19th May, 1995. Reference to the Advisory Board was made on 29th May, 1995. The Advisory Board made its report to the State Government under section 9(c) of the Act on the 2nd August, 1995 and the order of confirmation was issued by the State Government under section 9(f) of the Act on 16th August, 1995. The order of confirmation is at Exhibit “G”/pg 43. The affidavit of Shri V.S. Kambli, Desk Officer, shows that the State Government had referred the case of the detenu to the Advisory Board under section 9(b) of the Act. The Advisory Board interviewed the detenu and after considering the case of the detenu found that there was sufficient cause for detention under section 3(1) of the Act and also for his continued detention under section 10(1) of the Act. It was thereafter that the State Government issued the order of confirmation under section 9(f) of the Act. Counsel appearing for the respondents made available to us the entire record and proceedings which had gone from the State Government to the Advisory Board and had come back from the Advisory Board to the State Government and was thereafter placed before the Deputy Chief Minister before passing the order of confirmation under section 9 of the Act. The necessary Outward Delivery book was also produced before us for our perusal. Having perused the movement of the entire file from the State Government to the Advisory Board, from the Advisory Board to the State Government, and its consideration by the Deputy Chief Minister before passing the order of confirmation, we are satisfied that at every stage the entire record was forwarded by one authority to the other and has been considered by each of the concerned authority. The affidavit of Shri R.Y. Nalavade, Desk Officer, also confirms this fact. It is clear to us that the entire record was sent to the Advisory Board when a reference under section 9(b) was made on the 29th May, 1995 and after interviewing the detenu and considering the entire material on record, the Advisory Board found that there was sufficient cause for detention of the detenu and thereafter, forwarded its report and the opinion to the Home Department. The record shows that the Advisory Board forwarded the entire record and proceedings to the Home Department, which was then placed before the Deputy Chief Minister, who considered the same before passing the order of confirmation. Thus, we find no error in following the requisite procedure at each of the stages mentioned above.
35. Shri Karmali sought to place reliance on the decision of the Supreme Court in the case of Nand Lal Bajaj v. The State of Punjab and another, reported at . Reliance was placed on the observations in para 11 of the Judgment at page 2045. There can be no doubt about the proposition of law laid down therein. We may also refer to the observations of the Supreme Court in the case of Vijay Kumar v. Union of India and others, reported at . In para 38 of the judgment, at page 938 of the report, it has been observed that if the Advisory Board reports that there is in its opinion sufficient cause for detention of the person, the concerned authority may confirm the detention of the person for such period as it thinks fit. It has been further observed therein that the opinion of the Advisory Board and the grounds of detention are the only basis for confirming and continuing the detention. We have reached a conclusion in para 34 above that the entire record was sent to the Advisory Board when reference under section 9(b) was made and after Advisory Board considered the entire material it forwarded its report and opinion to the Home Department alongwith the entire record and proceedings which was then considered by the Deputy Chief Minister before passing the order of confirmation. Thus, we find no merit in the fourth contention raised by Shri Karmali.
36. The fifth contention is that the detaining authority has not shown its awareness to the fact that the detenu has retracted his statement on 28th February, 1995 and assuming that the detaining authority has shown its awareness to the fact of retraction of the statement, the detaining authority has not reflected its reaction to it in the order of detention and hence, the order of detention is bad in law. We will refer to the pleadings on this point first before considering the authorities cited before us. In the Grounds of Detention, there is a specific reference in para 10 of Exhibit “B” that the detenu had retracted his statement on 28th February, 1995. In the affidavit made by Shri C.D. Singh on 13th September, 1995 he has categorically stated in para 7 that he had considered the retraction of the detenu as well as of the co-accused Rajendra Singh Mistry and Anil Kumar which were placed before him. He had carefully read and considered the same in their proper perspective and he was satisfied that the said retractions were clearly after-thought. Shri Singh has further stated in his affidavit that it was not necessary for him to express his reaction to every piece of evidence considered by him. He has further reiterated that his subjective satisfaction could not be so called in question.
37. In this behalf we may only refer to State of Gujarat v. Sunil Fulchand Shah and another. The Supreme Court has in para 9 of its judgment at pages 725/726 observed that it is not necessary to mention in the grounds the reaction of the detaining authority in relation to every piece of evidence separately. In other words, it is not necessary to indicate one’s reaction to each of the circumstances that was placed before the detaining authority as long as the said circumstance was placed before the authority and the authority has considered the same. We do not find any merit in Shri Karmali’s contention that the detaining authority must indicate in the grounds of detention its reaction to every circumstance considered by it as relevant for reaching the subjective satisfaction recorded by it. In our view, there is nothing in the observations of the Supreme Court in K.T.M.S. Mohd. and another v. Union of India, reported at , which can support Shri Karmali’s contention. In view of the ratio of the decision of the Supreme Court in , State of Gujarat v. Sunil Fulchand Shah and another, we find no merit in Shri Karmali’s contention in this behalf. Accordingly, we reject the fifth contention.
38. The sixth and the last contention raised by Shri Karmali is that a portion in the margin of one of the several documents furnished alongwith the grounds of detention was illegible, and this violates the detenu’s right to make a representation as guaranteed by Article 22(5) of the Constitution of India. What is contended is that page 37 of the compilation of documents furnished to the detenu alongwith the Grounds of Detention is a copy of the Remand Application No. 37 of 1995 dated 28th February, 1995, alongwith the order passed thereon. Though the entire Remand Application and the order passed thereon is wholly legible, a note made in the margin granting remand till 13th March, 1995 was illegible. This according to the learned Counsel has infringed his right under Article 22(5) of the Constitution. In reply, Counsel for the respondents rightly relied upon the decision of this Court in the case of Abdul Nasir Khan v. L. Hmingliana and others, reported at 1991 Criminal Law Journal 507. That was a case where certain documents not constituting the basic facts were found to be illegible. This Court took the view that if the said documents did not constitute a basic fact and the detaining authority had not even made a casual reference to those documents, though the said documents were illegible, the order of detention could not faulted with on the ground of non-communication of the grounds of detention and, thus, neither Article 21 nor Article 22(5) was violated. The relevant observations are to be found in para 18 of the Judgment of this Court at page 515 of the report, which reads as under:—
“It is true that the documents as per Annexure ‘C’ (the list of documents) were placed before the detaining authority and the list includes these alleged illegible documents. As indicated earlier these alleged illegible documents were not at all referred to, relied upon nor constitute basic facts while formulating the grounds of detention. Even there is no casual reference to these documents in the ground of detention. A close scrutiny of the ground of detention unmistakably indicates that the detaining authority has made no reference whatsoever nor even a passing or casual reference to these alleged illegible documents. If this be so, in our opinion, grievance of the detenu is without any merits and cannot vitiate the detention order on the ground of non communication of the grounds of detention. Resultantly argument of Mr. Jethmalani as regards infringement of both facets of Article 22(5) of the Constitution does not survive”.
We entirely agree with the above observations.
39. To place the matter beyond any doubt we may refer to the Supreme Court decision in the case of Mst. L.M.S. Ummu Saleema v. B.B. Gujaral and another, reported at . After having considered the decision in Khudiram Das’s case, and Icchu Devi’s case, on the necessity of furnishing copies of documents and statements and the material to the detenu, the Supreme Court observed that every failure to furnish a copy of a document to which a reference is made in the Grounds of Detention is not an infringement of Article 22(5) fatal to the order of detention. It is only failure to furnish copies of such documents as were relied upon by the detaining authority in the absence of which it is difficult for the detenu to make an effective representation that may amount to violation of fundamental right guaranteed under Article 22(5). The Supreme Court further observed at page 1993 in Ummu Saleema’s case that it is unnecessary to furnish copies of documents, to which a casual and a passing reference was made in the course of narration of facts and which were not relied upon by the detaining authority in making the order of detention. In the present case, the copy of Remand Application and the order passed thereon is perfectly legible. What is however complained of is the illegible endorsement in the margin of page 1 of the Remand Application, which is a short order granting remand till 13th March, 1995. Applying the ratio of the Supreme Court decision in the case of Ummu Saleema we do not think that the subjective satisfaction recorded in the order of detention is vitiated on account of the above marginal portion being illegible. Thus, we do not find any merit in the last contention raised by Shri Karmali.
40. We may add here that the subsequent Remand Application was made on 13th March, 1995 and at the end of the said Remand Application dated 13th March, 1995 it has been mentioned as to what was the order passed in the margin of the earlier Remand Application in respect of which above contention has been raised before us. It is clear from the concluding portion of the Remand Application dated 13th March, 1995 (page 57 of the compilation of documents furnished to the detenu alongwith the ground of detention) that the marginally noted order was that remand was granted till 13th February, 1995. A copy of this application dated 13th March, 1995 and the order passed thereon granting remand till 23rd March, 1995 was admittedly furnished to the detenu in legible form. No grievance is made in that behalf. On this ground also the last contention is liable to be rejected.
41. In the light of the above, we may sum up our conclusions below. On the question of passing detention order on a person who is already in custody, the law requires that the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order of detention. On consideration of the said factor, if the detaining authority is reasonably satisfied on cogent material that there is a likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the order of detention can validly be made even in anticipation to operate on his release. On the second contention that the additional documents were not considered by the declaring authority while issuing the declaration under section 10(1) of the PITNDPS Act, we are of the view that the declaring authority had considered the said additional documents placed before it and we do not think that the right of the detenu under Article 22(5) of the Constitution was in any manner infringed in this case. On the third contention of consideration of the fact of the detenu having jumped bail in the murder case, we are of the view that recording of the subjective satisfaction in the order of detention and the grounds thereof had not been vitiated by the consideration of any irrelevant circumstance. As indicated by the Constitution Bench in Rameshwar Shaw’s case, it is both inexpedient and undesirable to lay down any inflexible test and the question about validity of the satisfaction of the authority has to be considered in the facts of each case. On the fourth contention of the Advisory Board sending the record of its proceedings to the State Government under section 9(c) of the PITNDPS Act, we are of the view that the entire record was sent by the Advisory Board to the State Government while forwarding its report and information in accordance with the provisions of section 9(c) of the PITNDPS Act and there is no breach of the said requirement. On the fifth contention that the detaining authority has not shown its awareness to the fact of retraction of the statement of the detenu inasmuch as it was not reflected in the Grounds of Detention, we do not think that it is necessary that the Grounds of Detention must show reaction to each and every circumstance considered by it as relevant for reaching the subjective satisfaction recorded. On the last contention of the marginal note in one of the documents furnished being illegible we do not think that non-communication of the said portion has in any way violated the right of the detenu either under Article 21 or Article 22(5) of the Constitution. The illegible portion did not constitute the basic fact while formulating the Grounds of Detention. Thus, in our view, there is no merit in any of the contentions raised before us.
42. Consequently, there is no merit in any of the contentions raised on behalf of the detenu. The petition fails. Rule is accordingly discharged.
