JUDGMENT
H.K. Sema, J.
1. The detenu Shri Manoharmayum Ibotombi Sharma alias M.I. Sharma was arrested on 14-1-94 in connection with F.I.R. Case No. 9(i)/94 Under Section 20 of N.D.P.S. Act registered at P.S. Border Affairs. He was detained on 10-2-94 in exercise of power conferred Under Section 3(i) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as the Act). This habeas corpus petition is espoused by his spouse challenging detention order dated 10-2-94 as being illegal.
2. Along with detention order, the detenu was served with grounds of detention. Some of the grounds of detention which are relevant for the purpose of disposal of this writ petition read as under:–
“1(b) In February, 1984 you were appointed as L.D.C. of Galihati High Court, Imphal Bench. In December, 1991 you were promoted to the rank of Upper Division Assistant (UD) and posted at the same Court. Your present monthly salary is Rs. 2847. As a Govt. employee you appeared in the LLB final year examination in the month of Dec, 1993. You have run a separate kitchen for five members of your family including yourself of which you are the only earning member. You had one Bullet motor cycle bearing regd. No. MN/OI-8324 and you sold it in the year 1992. You used one jeep bearing regd. No. MN-02/1428 which was purchased by your father in your (sic) to and from office attendance. Everybody is under the impression that the jeep belongs to you. You came to know one Mr. P.K. Sur, Major of 30 Assam Rifles (M.P. Range) since 1987. Through Shri Sur Major you got one identity Card affixing one passport photo on 4-4-90 issued by G-II/HQ, 9-Sector. With the help of the identity card, you could be able to move freely in the security tied area.
(c) You wanted to earn more money by other means without giving hectic labour as your little amount of monthly salary was not sufficient enough to meet the pressing needs of your family members and others expenditure so you decided to sell No. 4 Heroin drug as you know that drug addiction has become an intrinsic part of the society and selling of drug will be lucrative as demand of such No. 4 Heroin is increasingly on the high side particularly in the State of Manipur. No other commodity has this much of profit potential. You made up your mind to engage yourself in illegal Trafficking in No. 4 Heroin drug by contacting drug Traffickers in and around Imphal. So you started business selling in illegal Trafficking in No. 4 Heroin Drug by contacting the following drug traffickers since the middle of 1992.
1) Shri Arun Kuki (34) Churachandpur A/p New Lambuland, Imphal.
2) Shri Angam Tangkhul (3) of Phunjcham A/p Majorkhul, Imphal.
(d) On 8-2-93 at about 13-25 hours, the Officer-in-Charge of Imphal P.S. received reliable information that you have become a habitual No. 4 Heroin drug pedlar selling it to consumers and addicts in the greater Imphal area for the last 2/3 months by using your jeep MN-02/1428. You were reportedly possessing unlicenced arms not only for terrorising drug traffickers but also make exchange of arms with drug. According to source report you were frequently in the house of one Mrs. Kheng Kuki (34) at Lamphel Super market and contacting some Trible youths including Tangkhul and Kukis. On the other hand one Mrs. Achung Thangkhul and 4/5 drug addicts including one Gyaneshwar Singh of 2nd M.N. Housing complex and Mr. Likeson Tangkhul of Lamphel Sanakeithel were seen frequently visiting youth house contacting you in connection with dealing in illicit Trafficking of No. 4 heroin drug.
(e) On 11 -1 -94 at about 3 P.M. you were selling 60 grams of No. 4 Heroin Rs. 350 per gram (total amount Rs. 17,500/-) to Shri Awungashi Robart alias Ayo Tangkhul at your residence. Shri Awungashi gave you Rs. 10,000 being advance money and remaining amount i.e. 7500/- was to be cleared after disposal of the drug. On 12-1 -94 at about 2 P.M. Shri Awungashi proceeded towards Nepali basti, Chengmeirong carrying 50 grams of Heroin powder wrapped with polythene paper to sell it to different drug addicts as usual. On the way near the crossing Nepali Basti Road, Chingmeirong and N.H. 39 Shri Awungashi was arrested by the police team and the above quantity of No. 4 Heroin powder recovered from his unauthorised possession. A case under FIR No. 9(i) 94 Under Section 20 NDPS Act was registered at P.S. of Border Affairs. From the statement of Shri Awungashi it was established that the same quantity of drugs was purchased from you Manoharmayum Ibotombi Sharma on 11-1 -94.
(f) On 13-1 -94 at about 7 a.m. you purchased 100 grams of No. 4 Heroin powder wrapped with two polythene papers containing 50 grams each to Rs. 300/- per gram (total Rs. 30,000) from Shri Arun Kuki at his residence. You paid a sum of Rs. 10,000/ – to Shri Kuki being the advance money and the remaining balance was to be cleared within the last week of January 94 after disposal of the same.
(g) On 14-1-94 at about 11 a.m. received a tiptop information that you used to carry No. 4 Heroin powder for sale in your jeep. A police party of Narcotic Cell, Imphal led by ASI Ibotombi Singh stopped your jeep driven by you after obtaining search warrant from the Supdt. of Police, Imphal District at Nongmeibung Road in front of the R.D.S. High School and conducted search after observing the necessary formalities as enshrined in the N.D.P.S. Act. On conducting search the following articles were found from inside specially designed chamber of back seat of the jeep.
(i) 2 (two) plastic packets (marked ‘Eabu’ with yellow) containing 50 grams each which are concealed inside the right side specially designed chamber of Jeep MN-02/1428, (ii) One weighing balance with weight of 50 grams and 10 grams which is found inside left side specially designed chamber back seat.
(iii) One country made revolver of .38 bore.
(iv) 71 live rounds of Containing inside the country made ammn. left side specially de- (v) Identity card of M. signed chamber back Ibotombi Sharma issued seat from Gauhati High Court, Imphal Bench. (vi) Registration certificate of jeep bearing Regd. No. MN-02/1428 in the name of M. Ibotombi Sharma. A case under FIR No. 89(i) Under Section 21/29 NDPS Act and 25 (i-B). A Act was registered at police station, Imphal. You and Mrs. Achung Tangkhul (29) of Alungtang A/P Lamphel Super Market, a joint partner is disposing of No: 4 heroin powder were arrested while coming in the same jeep. You yourself admitted the facts in your statement which was corroborated with the statement of Mrs. Achung Tangkhul. From the above facts it is clear that you were engaged in the said Illicit Traffic of Narcotic Drugs in a clandestine manner since 1992 under a ring or network of some organisation."
3. Considering the above grounds of detention the appropriate authority came to the conclusion that the application of the provisions of the Act would be necessary with a view to preventing the detenu from engaging in illegal sale of Heroin and accordingly the detention order under Section 3(i) of the Act has been passed.
4. Four arguments were advanced before us by Mr. L. Nanda Kumar, learned counsel for the petitioner.
i) that there was no sufficient compelling reasons to pass a detention order;
(ii) that there was no awareness in the grounds of detention inasmuch as the detenu was arrested on 14-1-94 in connection with a regular case;
(iii) that the representation filed by the detenu on 17-2-94 was disposed of by the State on 19-3-94 after delay of 30 days and;
(iv) that the representation filed by the detenu to the Central Government on 17-2-94 was forwarded to the Central Govt. only on 28-2-94 after delay of 11 days.
5. It was argued, therefore, that the detention order is liable to be quashed.
Point No. 1: Illicit Traffic in Narcotic Drugs has been causing serious threat to human health and welfare of the people and the activities of the drug traffickers have a deleterious effect on the national economy. In fact, the Illicit traffic in Narcotic drugs causes a threat to the existence of the entire universe. Considering the gravity of the offence and the grounds of detention furnished to the detenu as quoted above, we are of the clear opinion that there was sufficient compelling circumstances to justify the preventive detention, in spite of the fact that he is already under the detention in a regular case. From the grounds of detention as quoted above, we arc of the view that there was sufficient material appearing on the ground of detention to detain the detenu despite the fact that he was under detention in connection with a regular case. This apart, it is averred in paragraph 10 of the counter that considering the materials on the grounds of detention the detaining authority has come to its satisfaction that the detenu is having all the repetitive tendency of engaging himself in the said activities of illicit trafficking in the said No. 4 Heroin powder in the immediate future or at any point of time in future, in case if he is enlarged free. It is also categorically stated in paragraph 10 of the counter that the normal application of criminal law are also ineffective against such persons who can ingeniously adept in exercising influence thereby causing tampering of evidence, non-attendance of witnesses etc. thereby causing failure of criminal prosecution. These reasons taken by the detaining authority, in our opinion, are sufficient compelling reasons culminating in passing the order of detention. The contention of the petitioner on first point therefore, fails.
Point No. 2: It is contended by Mr. L. Nanda Kumar at the time of the detention order passed on 10-2-94, the detenu was already under detention in connection with a regular case. However, there was no awareness in the order of detention to this effect. We are unable to accept this contention of Mr. L. Nanda Kumar as well. It is not necessary that in order of detention such awareness of the detaining authority has to be indicated. It is enough if it appears from the grounds of detention that the detaining authority is aware of the fact that the detenu is already in detention. (See Vijay Kumar v. Union of India, AIR 1988 SC 934 : (1988 Cri LJ 951).
In the historysheet annexed with the grounds of detention furnished to the detenu it is specifically stated in paragraph 16 as under:-
“16. It is reliably learnt that the bail application is being filed in favour of Shri M.I. Ibotombi Sharma alias M.I. Sharma before the Court and he is being released on bail by the court at any time. In view of his prejudicial activities in illicit trafficking of No. 4 Heroin drug in the proximate past, it can reasonably be anticipated that Shri Manoharmayum Ibotombi Sharma @ M.I. Sharma would continue to engage himself in illegal trafficking of No. 4 Heroin which wouldnot only be delterious on the national economy but would also cause a serious threat to the health and welfare of the people in case he is released on bail. Thus, the application of normal law i.e. ‘Narcotic Drugs and Psychotropic Substances Act, 1988’ is not at all effective to prevent him from engaging in illicit trafficking No. 4 Heroin drug. An alternative preventive measure is therefore immediately called for.”
Therefore, it clearly shows that the detaining authority had awareness that the detenu was under detention in connection with regular case at the time of detention order was passed and he is likely to be released on bail and taking in to consideration his activities in proximate past, the alternative preventive measure was immediately called for. The contention of Mr. L. Nanda Kumar on the second point also therefore fails.
Point No. 3 and 4: These two points may be clubbed together as they are related. Point No. 3 relates to the delay of 30 days in disposal of representation filed by the petitioner to the State Government. Point No. 4 relates to delay of 11 days in forwarding the representation of the detenu to the Central Government.
Admittedly, the detenu filed representation on 17-2-94 and the representation was disposed of on 19-3-94. The representation filed by the detenu to the Central Govt. on 17-2-94 also forwarded to the Central Govt. on 28-2-94 after delay of about 11 days.
5. It is contended by Mr. L. Nanda Kumar that unexplained delay of 30 days in disposing of the representation of the detenu and forwarding of representation to the Central Govt. after unexplained delay of about 11 days vitiated the detention order. In this connection reliance was placed on Prof. Khaidem Ibocha Singh v. State of Manipur, AIR 1972 SC 438. The Apex Court had held that unexplained delay of 17 days in disposing of the representation of the detenu vitiated the detention order. In S.K. Rashid v. State of West Bengal, AIR 1973 SC 824:(1973 Cri LJ 656), the unexplained delay of 26 days in consideration the representation of the detenu met with the similar conclusion. In Saliah Mahammad v. Union of India, (1980) 4 SCC 428 : (1980 Cri LJ 1496) the same view was taken when there was unexplained delay of 22 days in disposing of the representation. In Vijay Kumar v. State of Jammu & Kashmir, (1982)2 SCC 43 : (1982 Cri LJ 988), the unexplained delay of about 19 days, the same view was taken by the Apex Court. In Aslam Ahmed Zaherie Ahmed Sk. v. Union of India, (1989) 3 SCC 277 : (1989 Cri LJ 1447), unexplained delay of 7 days in transmitting the representation to the Central Govt. has been held to be bad and vitiated the detention order.
6. The words ‘unexplained delay’ appearing in the aforesaid decision have got a great significant. Necessary corollary is that every delay does not constitute the delay. It is only unexplained delay that constitute the delay.
7. Reverting back to the facts of the present case admittedly the representation filed by the detenu on 17-2-94 was disposed of on 19-3-94. The representation filed by the detenu on 17-2-94 was also forwarded to the Central Government on 28-2-94. The present petition was filed on 11 -4-94 i.e. after the disposal of the representation filed by the detenu. In this writ petition, besides the denial of the involvement of the detenu in the offence mentioned in grounds of detention, no plea was taken that his representation was disposed of after delay of 30 days or that his representation to the Central Govt. was forwarded after delay of 11 days. The petitioner also filed a reply affidavit on 2-6-94. In the reply affidavit also no ground was taken that delay of 30 days in disposing of the representation filed by the petitioner vitiated the detention order. In paragraph 2 of the reply affidavit the petitioner did mention that the detenu submitted representation dated 17-2-94 and it was not considered till 19-3-94 which is quite illegal specially when the office of the Chief Secretary to the Govt. of Manipur situated at a distance of about 200 meters away from the jail premises. This reply affidavit has been filed after the counter has been filed by the respondents. From the authorities cited above, it appears that the words ‘unexplained delay’ would indicate that the State Government must have an opportunity to explain the delay caused in disposing of the representation. This, the State Government, can only do when the detenu takes a specific plea in the petition that the delay has been caused in disposing of the representation which vitiates the detention order. In absence of specific plea in the petition, the State Government has nothing to explain and justify its action.
8. No hard and fast rule can be said to be laid down as to measure of time taken by the appropriate authority for consideration of the representation filed by the detenu. What constitutes the delay depends upon the facts and circumstances of each case. In a given case the delay may have been caused by circumstances beyond the control of the State. In such a situation if the State is given an opportunity to explain and the State is able to explain the delay satisfactorily and justified its action, the Court may accept the explanation if offered by the State. This, the State can only do, when a plea of delay in disposing of the representation is taken by the detenu in the petition as one of the grounds.
9. These are the cases in which the liberty and right of an individual is pitted against the welfare of the society, the interest of an individual is pitted against the public interest. It is well settled principle of law when private interest is pitted against the public interest, the latter will prevail over the former. Considering the gravity of the offence that the illicit traffic in Narcotic drugs causes a serious threat to the human health and welfare of the people and the activities of the drug traffickers have a deleterious effect on the national economy, the State must be given an opportunity to explain the delay in disposing of the representation and justify its action. This, the State can only do if the specific ground is taken by the petitioner in the petition itself alleging that the delay in disposing of the representations vitiated the detention order. In this connection, we may refer to a decision of the Apex Court in Arun Kumar Roy v. State of West Bengal, AIR 1972 SC 1858. The Apex Court in paragraph 11 of the judgment has held as follows :-
“11. The main hurdle against the petitioner in this case is that he made no grievances in his writ petition about the delay in the consideration of his representation. If any such plea had been taken, we would have had to consider whether Government had any explanation to offer for delay. In this case, as already noted, the Government has approved of the order of detention as early as September 4, 1971 and submitted its report to the Central Government. There was nothing to the representation of the petitioner apart from a bare denial of his commission of any offence which necessitated the immediate consideration of the representation. As the Act did not empower the Government to release the detenu on the strength of the representation without sending the matter to the Advisory Board. It appears to us that Government’s consideration of the representation after the prior approval of the detention order would have little significance or import.”
10. The contentions of Mr. L. Nanda Kumar on 3rd and 4th points also fail.
In the result, there is no merit in this writ petition and the same is dismissed.
11. Before parting with the record, we shall be constrained to note that it is more disturbing because such grave offence as disclosed in the grounds of detention and historysheet has been imputed against a person who has been employed in the institute of the temple of justice, High Court. From the Annexure X(i) the letter dated 10-1 -94 filed by the petitioner it clearly appears that the detenu is also facing another disciplinary proceeding. From the letter dated 10-1-94, his reply to show cause dated 7-1-94 it appears that the detenu has also admitted the charges levelled against him in the disciplinary proceeding.
Registry is directed to place a copy of this judgment (along with the copy of shown cause Annexure X(i) reply submitted by the detenu) before the Hon’ble C.J. on the administrative side.
A.K. Patnaik, J.
12. I agree.