Ashok Solomon vs Union Of India And Ors.
1989 Latest Caselaw 498 Del

JUDGMENT

S.B. Wad, J.

(1) Petitioner, Ashok Solomon, has through this habeas corpus petition challenged the detention order against him passed on 19.1.89 The order was passed under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act, 1988. In the detention order he is described as a kingpin in organized drugs trafficking. It is alleged that about 400 KGs. of charas was recovered from him on 21.7.86. The Secretary (Home), Delhi Administration, exercised his subjective satisfaction (that detention of the petitioner was necessary for prevention of illicit trafficking in drugs) on 19.1.1989 and passed the impugned order. After the alleged recovery of large quantities of charas from the detenu on 21.7.1986, criminal prosecution was started under the said Act. If the prosecution would have been vigorously pursued by the Administration the petitioner could have been convicted by now and could have been at least sentenced to ten years rigorous imprisonment and fine of Rs. I lac which is the minimum sentence under the Act. But, even after the lapse of three years the main witnesses regarding recovery of large quantity of charas are not examined and the end of the prosecution before the Sessions Judge is not in sight. In the meanwhile the petitioner is detained by way of preventive detention. If the object was to immobilise the petitioner in drug trafficking and to stop the social menace, ten years imprisonment after conviction would have served the real social objective. If the object of detention was punishment (which cannot be a legitimate object of preventive detention) detention of one year is what Justice Krishna lyer once described as 'flea bite' as compared to ten years rigorous imprisonment on proper conviction. We are constrained to release the petitioner and quash the detention order for several legal infirmities, the principal being staleness of grounds, absence of compelling necessity and non-application of mind vitiating the subjective satisfaction. Considering the facts of the case. in exercise of our powers under Article 227 of the Constitution, we direct the learned Sessions Judge to hear the criminal cases on day to day basis and conclude the trial within the period of four months. This case is also a story of desperate dilema faced by the High Courts in dealing with such preventive detentions-the dilemma created by administrative failures and uncertainties in the decisional law.

(2) In this habeas corpus petition the petitioner has challenged the legality and validity of dentention order dated 19.1.1989 passed against him under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

(3) The said order and grounds of detention may be noted :

"NO.F. 6/35/88-HP-11 Delhi ADMINISTRATION: Delhi Home (Police-11) Department. 5, Sham Nath Marg Delhi-110054. Dated the 19.1.89 Order Whereas, I, lmtiaz Ahmed Khan, Secretary (Home) specially empowered under section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 read with order NO.F.6/1/88-HP.II dated the 18th August, 1988 am satisfied from the record of the case with respect to the person known as Ashok Soloman s/o Ishical H. Soloman r/o 44, Golf Link, New Delhi that with a view to preventing him from possession, transportation/export and ware-housing of the narcotic drugs, it is necessary to make the following order: 2. Now therefore, in exercise of the powers conferred by section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, I direct that the said Shri Ashok Soloman be detained and kept in custody in the Central Jail, Tihar New Delhi. sd/- (I.A. Khan) Secretary (Home) Shri Ashok Soloman, s/o Shri Ishical H. Soloman, 44, Golf Link, New Delhi."

"NO.F. 6/35/88-HP. Ii Delhi Administration : Delhi : (HOME POLICE-11 DEPARTMENT) 55-Sham Nath Marg, Delhi-110054 Dated the 19.1.89. To Shri Ashok Soloman S/o Shri Ishical H. Soloman 44-Golf Link, New Delhi. Grounds on which the detention order No. F. 6/35/88-HP-11 dated 19.1.1989 has been made against Shri Ashok Soloman under section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. It has been brought to the notice of the under-signed by the local police that you are not one of the largest Drug traffickers who indulges in large scale trafficking and is a kingpin in organized drug trafficking.

2.On 10.11.1973 information was received by S.I. Bhag Chand of Crime Branch that House No. F. 90, Green Park, New Delh is being used for preparing hashish shipment for abroad in clandestine manner. Raid was conducted and 140 Kgs. of hashish was recovered from the premises. Case Fir No. 579/73 u/s 61/1/14 Ex. Act P.S. Hauz Khas was registered and investigated in which eventually you Ashok Soloman was challenged Along with 12 others. The case is still pending trial (Annexure-I)

3.On May, 20, 1977 you and 4 members of your smuggling organisation were assisted in Minneapolis Minnesota and 1296 Ibs of hashish was seized by the United States Customs Services Department of Treasury, U.S.A. The hashish had been imported from India through Los Angeles, California and shipped as domestic air freight to Minneapolis, Minneasota. You were traveling on a forged passport under the name of Dcy Dass. You pleaded guilty and were convicted to 10 yeast imprisonment. You however, got some remission and was repatriated to India in 1983 and started your smuggling activities again (Annexure-ll).

4.Information was received that you Were an international drug smuggler and were exporting narcotics under the cover of some trade firms. This information was developed and large police contingent was placed in position near Vikram Hotel and car No DBD-2577 was followed while it was leaving Vikram Hotel, but the car could not be intercepted. However, watch at Vikram Hotel was continued. On the 21st morning at 6.30 a.m. of July, this car was intercepted near Vikram Hotel service road after a hot chase and 96 kgs. of charas in one k(r) packets recovered from the car. You yourself were driving this vehicle Consequently, case Fir No. 347 dated 21.7.86 under section 21/27/ 61/85 Ndps Act, was registered at P.S. Lajpat Nagar. You were put to sustained interrogation by the Investigating Officer and you led the police party to a cache of 331 kgs. of charas which were kept in Okhla for packing it for export purposes. Accordingly, a case Fir No. 274/86 dated 21.7.86 u/s 20/21/29/85 Ndps Act was registered at Police Station, Lajpat Nagar (Annexure-III and IV).

5.Even though proceedings under the,various 'provisions of law viz. Ndps Act, 1985 etc. have been initiated against you by the local police, but I am satisfied that you should be detained u/s 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing you from engaging again in possession, transportation and conspiring to export from India of narcotic drugs.

6.While passing the detention order aforesaid against yon I have relied on the documents and attached statements of various investigating officers and other persons with the aforesaid Annexures and also the reports of the Central Forensic Science Laboratory, Cbi copies of which are also enclosed as Annexures-V.

7.The above grounds are communicated to you in pursuance of Clause-5 of Article 22 of the Constitution of India.

8.You have the right to make representation to the undersigned, Administrator. Advisory Board and also to the Central Government against your detention under the provision of aforesaid Act and if you wish to make a representation, you may do so and forward the same to the concerned authority through the Superintendent, Central Jail, Tihar. You are further informed that you will be heard by the Advisory Board in due course, if the Board considers it essential to do so or if you desire. sd/- (I.A. Khan) Secretary (Home) Delhi Administration."

(4) The counsel for the petitioner submits that the ground of detention against him is one viz. "one of the largest drug traffickers who indulges in large scale trafficking and is a kingpin in organized drug trafficking". The averments in paras 2, 3 and 4 of the grounds of detention, according to the counsel, are instances in support of the grounds of large scale drug trafficking being indulged in by the detenu. The detention order is challenged on various pleas, such as absence of material, non-supply of documents, staleness of grounds, non-existent of any compelling necessity of detention and of the non-application of mind by the detaining authority.

(5) As regards the instance in relation to Fir No. 579/73 mentioned in para 2 of the grounds of detention.-it is submitted on behalf of the detenu that the averment in .the said paragraph; namely, "the case is still pending trial" is factually incorrect. There is no such trial periding. So also the submission is that there was no evidence to show that the detenu was challaned into case Along with twelve others. Further submission is that neither the alleged copy of the challan nor the papers regarding pending trial are furnised to the detenu. He has asserted that the alleged case was closed in 1986. In reply to these submissions in the writ petition, in para 9 of the counter affidavit it is asserted, ''the petitioner was arrested in Fir No. 579/73 of the Police Station Hauz Khas in which 140 KGs. of hashish was recorded. He became a proclaimed offender in this case from 1977, most probably due to the fact that he was arrested in the United States of America in 1977 where he was convicted to ten years imprisonment for possessing 1296 Ibs. of hashish and was not in a physical position to attend the trial. In March 1985 he obtained from the court an order for anticipatory bail in this case. Now it has been learnt from the court of Ms. Ravinder Kaur, Metropolitan Magistrate Patiala House that this case file was destroyed on 31.1.1986. It is quite obvious that his trial did not even take place before the file was destroyed. It would be seen that he has managed to influence someone in the record office of the court to get his file destroyed. The local police has further reported that the name of the petition did not figure in the Fir, but he was one of the thirteen persons arrested in this case. By his own admission he had asked the court for anticipatory bail in March, 1985 in this very case and now the petitioner is hiding this fact from the Hon'ble High Court. The detention order has been passed by the Detaining Authority after careful consideration of all the relevant materials."

(6) From the lengthy averment in the counter-affidavit it is sent that there is not even a mention that a charge-sheet was filed against the detenu pursuant to Fir No. 579/73. Admittedly, his name was not in the FIR. At the time of the hearing, the counsel for respondent tried to submit that a copy of the document' in which the name of the petitioner Along with twelve others was.mentioned, as accused, was furnished to the petitioner Along with the copy of the FIR. The counsel for the petitioner has denied it. When the original record wa.s summoned it was noticed that while receiving the documents the petitioners had noted on the original file an endorsement namely, that all documents, on the copy of which he has initialled, are received by him. There is no such initial on the alleged list of the accused, which is now being contended as was supplied to him. The counter affidavit further asserts that the petitioner was declared as a proclaimed offender and that in 1985 he had applied for anticipatory in the said case. These facts are not stated in the detention order at all. No copy of the order of the court declaring petitioner as a proclaimed offender under Section 82 Cr. P.O., nor the copy of the alleged application of anticipatory bail was furnished to the petitioner. That the file in Fir 579/73 was destroyed in 1986 is admitted in the counter affidavit. Therefore, it is also an admission that the statement in the grounds of detention dated 19.1.1989 that the case is still pending trial, was incorrect. The statement in the counter-affidavit is that he ''became a proclaimed offender most probably due to the fact that he was arrested in United States of America in 1977. It means that the detaining authority did not have any material. It wa.s only on the basis of conjecture that he came to the conclusion that the petitioner was a proclaimed offender. So also, the detaining authority acted merely on suspicion when it stated that the petitioner managed to influence someone in the record office of the court and got the file destroyed.As a matter of fact, the order for destroying the record was passed by the concerned Magistrate, and no enquiry was held as to how the file was destroyed. Thus, there was no material before the detaining authority much less the relevant material. The Authority acted on suspicion and conjeeture. If at all there was any material, it was not disclosed in the detention order, nor the copies of the same were supplied to the petitioner. He was thus deprived of a proper opportunity to make effective representation. Between the first incident of 1973 and the last incident of 1986 there is no evidence of the continuing activity of large scale in trafficking of narcotics by the petitioner. The incident of 1973 is too remote and stale for detention after sixteen years. We have already noted that the prosecution in regard to the 1973 incident had long come to an end before detention order was passed in January, 1989. The said grounds suffer from serious legal infirmities stated above and cannot validly form basis for petitioner's detention under impugned order.

(7) Ground No. 2 concerns with the alleged smuggling of hashish in United States and consequent conviction of petitioner in 1977 in USA. The submission of the counsel for petitioner is that there was no material before the detaining authority to use it as one of the grounds for detention. What is given to the detenu as a material in regard to this ground is a newspaper report and one page report of the investigation held in U.S.A. There is some merit in the submission of the petitioner. However the alleged conviction in the United States for certain activities done in the United States cannot form as a ground of the detention in India. Taken by itself it would not justify detention. There is also no material furnished to the petitioner in regard to the allegation that he was repatriated to India in 1983 and started his smuggling activities again. Neither in the grounds of detention nor in the documents supplied to him nor in the counter affidavit filed by the respondents there is any material mentioned in regard to the alleged restarting of the smuggling activities by the petitioner in 1983. The counsel convincingly submits that in the first ground (1973 incident) it was wrongly stated "the case is still pending" and in the second ground it was wrongly stated that the petitioner had started his smuggling activities against in 1983. The submission is that these false statements are made only to show the continuity of the alleged activity of smuggling by the petitioner and to overcome the difficulty of the grounds/activities being stale, unconnected and irrelevant. Even assuming that the conclusions are correct non-supply of basic facts and material particulars have prevented the petitioner from making effective representation regarding alleged continued activity of dealing in narcotics. We agree with the counsel for the petitioner that the second ground in relation to the alleged conviction in Usa in 1977 also does not and cannot form the ground of detention.

(8) The third ground is in regard to the interception of a motor car on 21.7.1986 and recovery of charas from the motor car and thereafter recovery of large quantities of charas at the instance at the petitioner detenu. It may be noted that in regard to the said incident two FIRs were lodged, namely 347/86 under sections 21/27/67/85 Ndps Act and Fir No. 274/86 dated 21.7.1986 under sections 20/21/29/85 Ndps Act. The prosecution on both counts is pending since July, 1986. The allegation this ground concerns new activity oF the petitioner, namely, exporting Narcotics. The submission of the petitioner is that the.alleged incident of interception of the petitioner near Vikram Hotel is untrue. He leas farther submitted that the recovery of 330 KGs. of charas was not from the premises under his control or possession. This submission is made on the basis of the statement made in the said ground itself.

(9) It is really surprising as to how a very large Police contingent placed in position near Vikrani Hotel and which followed car No. DBD-2577 leaving Vikram Hotel could not intercept the same. What creates further doubt in regard to the incident is that there is no date or time of the incident stated in the grounds of detention. We are also asked to believe that even after the earlier attempts of interception by large Police contingent, the petitioner again visited Vikram Hotel with 96 R.Gs. of charas on 21.7.1986 and that he was caught in the second visit. It is stated at the Bar there are six eye witnesses of interception and of recovery panchnama. From the summary of date-sheet filed by the petitioner and not contorted by the counsel for the respondents) in regard to the progress in the said prosecutions, it is seen that even the evidence of the recovery witnesses has not been completed. As a matter of fact only one such witness was examined but his cross-examination is yet not complete. There is no evidence recorded in the trial after 15.11.1988. The counsel for the petitioner asserts that there was hardly any adjournment sought by the accused in the said prosecutions. The petitioner was arrested for the said incident in July, 1986. while the detention order is passed on 19.1.1989, that is after about thirty months. There is no explanation or averments in the grounds of detention as to what was the compelling necessity to detain the petitioner after thirty months when he was already in Jail and undergoing prosecution. Reliance is placed by the petitioner on the decision of the Supreme Court in Vijay Kumar v. U.O.I. 1988 (2) Scc 511, page 57 (34 (1988) Dlt 306) in support of his submission that there was no compelling necessity to detain the petitioner under NDPS. Act. As we read the grounds of detention and particularly Para 5 it is clear that there is no reasoned factual explanation furnished by the detaining authority as to what was the compelling necessity. What is stated is, "I am satisfied that you should be detained u/s 3(1) ............with a view to preventing you from engaging again in possession, transportation and conspiring to export from India of narcotic drugs". The detaining authority should have explained with the proper and probative material in the grounds, as to what were the activities of the detenu between July 1986 and January, 1986, a long period of thirty months and whether any adverse activities in regard to the possession, transportation or export was actually undertaking and carried out by the detenu. The decision of the Supreme Court requires that material regarding compelling necessity should be stated in the grounds of detentions themselves. The Detaining Authority has clearly failed to explain the compelling necessity when it has assumed (in the grounds of detention) that the petitioner was still in Jail.

(10) But, the said ground of detention is further attacked by the counsel for the petitioner by pointing out that the petitioner is in fact released on bail on September 13, 1988. The counsel further submits that non-disclosure of this material fact in the grounds of detention and non-supply of application for bail and the order thereon vitiates the detention of the petitioner Anant Sakharam v. State of Maharashtra . The petitioner has also relied upon the decision of the Supreme Court in Asha Devi v Shiv Raj & Ors., Air 1979 Sc 447 and other decisions of this court. In Asha Devi's case the Supreme Court held : "IT is well settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order."

(11) There is good deal of substance in the submission of the petitioner. It is clear that the fact that the petitioner was released on bail on 13.9.1988 is not disclosed in the grounds of detention at all. This was a material and vital fact which should have influenced the mind of detaining authority for deciding one way or other whether the detention was called for. Since the fact of release on bail is not mentioned in the grounds at all, there is non application of mind. Further, it is obvious that there is no material in the detention order to show whether any prejudicial activity was carried on by the petitioner between 13.9.1988 and 19.1.1989 (i.e. for a period of about 125 days). Here again the detaining authority failed to explain the compelling necessity when no prejudicial activity is alleged in the detention order against the petitioner.

(12) If there was any prejudicial activity the detaining authority ought to have applied for the cancellation of the bail or should have filed an appeal to the Supreme Court against the order of this court granting bail. On duty of detaining authority to apply its mind to immediate necessity of detention and duty to contest bail application see Ramesh Yadav v. D. M.19S5 (4) Scc 232 & Binod Singh v. D. M. Crime 1986 (3) 284. A copy of the order of this court granting bail to the petitioner on 13.9.1988 is filed Along with the writ petition. The counsel for the petitioner has drawn out attention to the following portions of the bail order : "THERE are in all six witnesses of the recovery of the drug in question namely, charas, including Shri Lakshminarain Rao and Si Rajinder Bakshi. As stated by me already above the cross-examination of Shri Lakshminarain Rao has not yet concluded and so far as the other witness Si Rajinder Bakshi is concerned, his examination-in-chief even has not as yet concluded....... As stated by me already above, the "petitioner has already been in custody for more than two years. The trial of the case has not made any headway as yet. The statement of not even a single witness of the recovery out of the six witnesses of recovery of the prosecution has as yet concluded..........Keeping in view the past conduct of the petitioner in that he has already been or bail for a period of two months by virtue of the said two orders granting him interim bail and that the petitioner is not even alleged to have tried to abuse the concession of bail allowed to him in any manner. I think the petitioner should be admitted to bail. The fact that the petitioner fully cooperated with the court as also the prosecution in the matter of the progress of the case when he was on bail inasmuch as he admittedly appeared before the court on each and every date of hearing on which the case came up for recording of prosecution evidence on three or four days continuously during the said period and later surrendered before the court on the expiry of the period of his interim bail go to show that the petitioner is not likely to flee from justice or to have abused bail in any manner if so allowed to him."

(13) The counsel for the petitioner points out that this was the stage of criminal proceedings on 13.9.1988 and there has been no change even on the date of the detention order, namely, 19.1.1989, the date of detention. The counsel further submits that considering even the position as of today the prosecution does not appear to be serious about concluding the trial and the detaining authority is only interested in continuing the detention. We have seen the original record of the criminal cases filed against the petitioner. The charge framed on 13.3.1987. up to 8.10.1987 seven witnesses were examined by the prosecution, which are mostly formal witnesses. Since 8.10.1987 till date, that is, for the last two years examination even of two witnesses (Public Witness -8 & PW-9) is not completed. The main witnesses for recovery of large quantity of charas at two places are yet to be examined. The record does not disclose that there was any vigorous attempt on the part of the Administration to conclude the trial quickly either on 19.1.1989, the date of the detention order or 13.9.1988, the date on which the bail was granted or even as of date.

(14) We are of the opinion that there is total absence of compelling necessity demonstrated by the detaining authority. There is no application of mind and particularly to the fact that the petitioner was granted bail on 13.9.1988. Under the relevant enactment the minimum sentence for drug trafficking is ten years rigorous imprisonment and a fine of Rs. 1 lac. The Administration had sufficiently long time of three years to vigorously pursue the prosecution. On conviction petitioner could have been sentenced to the minimum sentence of ten years. The conviction would have achieved effective immobilisation for a period of ten years instead of one year that can be achieved under the detention order. The distinction between preventive and punitive actions is sometimes not properly appreciated. Imprisonment on punishment is immobilisation of the criminal from the social point of view, Preventive detention is punishment for the individual detenu. In some other decisions of the courts preventive detention is described as an action based on suspicion or anticipation. While the punitive action is said to be based on 'evidence.' An administrative action cannot be both an action based on evidence and also on suspicion simultaneously. They are anti-thetical.

(15) That is why in some of the decisions of the Supreme Court it is emphasized that parallel proceedings under the normal criminal law and under Prevention Detention Act, should not be initiated. If at all they are required to run simultaneously, compelling necessity of detention under the detention law must be established. The efficacy of this principle could not have been better illustrated than by the provisions of the Anti-Narcotics Act. Considering the immense hazards to national health, ten years minimum punishment would have served as a definite deterrent and effective immobilisation. Is the detaining authority seeking a softer option of detention for one year, which is like a 'flea bite', as compared to ten years minimum imprisonment which could have been passed in the criminal . trial ? Can it effectively answer the charge that the exercise of the power of detention in this case is colourable ?

(16) The ground of detention also suffer from the long unexplained delay sand staleness of events. The first incident is of 1973, second of 1977 and third of 1986. We have seen earlier that there is no factual connecting link between the three incidents. The nexus is broken at each stage. Therefore each is required to be considered as a separate instance or ground. Even if we start with the last incident of July, 1986, the long delay of thirty months till the detention order was passed in January 1989, is not explained The petitioner was granted bail on 13.9.1988 and for over 120 days the detention order was not passed. It is said in the counter-affidavit that this time was required for collecting bail applications and for translating the document These explanations are unsatisfactory, considering the fact that the courts had been insisting on explaining the delay from day to day. If we see the position prior to 1986, and if the counter-affidavit is to be believed the authorities had the knowledge that the petitioner was 'deported' to India from America in 1983 and that he 'moved' an application for anticipatory bail in 1985 in the prosecution arising out of the 1973 incident. It ought to have been explained as to why he was not detained either in 1983 or 1985 when admittedly the Police and the detaining authority had the information that the 'petitioner was a kingpin in organized drug trafficking.' The incidents of 973 and 1977 are certainly to remote for detention of a person in 1989.

(17) Whether we consider the three incidents of 1973, 1977, and 1986 only as instances 'of the ground', namely, that the petitioner "is one of the largest drug traffickers who indulges in large scale trafficking and is the kingpin in organized drug trafficking" or treat them as separate 'grounds', the position is same. Neither singly nor collectively can they be held as valid and legal justification for detention.

(18) The counsel for the respondents has submitted that the incident of July, 1986, in which large quantities of hashish was allegedly seized, was alone sufficient for the detention of the petitioner and his conviction in the Usa is relevant as past conduct in this regard. We have already shown as to how the said ground suffers from innumerable legal infirmities. Recovery of large quantities hashish together with the 'fact' of conviction in Usa might serve as a good ground for imposing punishment for ten years R. 1. in the criminal trial, if the recovery of the said quantity of hashish is legally established before the Sessions Judge. But procedural requirements of preventive detention are much more rigorous. In case of preventive detention the grounds must not only be pertinent but must be proximate. There must be an unbroken chain between the two or more grounds or events to show continuity of action. The compelling necessity has to be stated as a part of the ground and nothing can be added by way of a counter-affidavit to the detention order. Therefore, the assertion in the counter-affidavit viz, "the action under the ordinary law has not desisted him from indulging in anti-social activities of dealing in Narcotic drugs" does not help the detaining authority. The further statement in the counter-affidavit that "he will not refrain from indulging in this illegal trade in spite of the initiation of prosecution proceedings against him under the various provisions of laws, namely, Ndps Act, 1985, is also to be rejected for the same reason. These assertions give an impression that the detaining authority is treating detention as a more deterrent punishment than the conviction in a criminal trial. This shows a confused state of mind."

(19) The dark picture of the aggravated degree of the petitioner's activities sounds more like an address of the public prosecutor to the Sessions Judge for awarding sentence more rigorous than the sentence of ten years prescribed as minimum by the Act. It is, therefore, not safe to rely upon the above statements in the counter-affidavit as the justification for detention, unless we go that far to hold that the word of the detaining authority is the last word.

(20) Similar question was raised in Vijay Narain Singh v. State of Bihar arising out of detentions under Bihar Control of Crimes Act, 1981. In that case the detenu was charged with murder and conspiracy and wa s granted bail by a competent court. He was detained on the ground that he was an anti-social element habitually committing crimes. In his dissenting opinion Sen, J. held" those who are responsible for national security or for the maintenance of public order must be sole judges of what the national security or the public order requires." The majority consisting of Venkataramiah, J. (as he then was) and Chinappa Reddy, Jj did not agree with this proposition. Reddy, J. held that, It is too perilous proposition. Our Constitution does not give a carte blanche to any organ of the State to be the sole arbiter in such matters. Preventive detention is considered so treacherous and such an anathema to civilised thought and democratic polity that safeguards against undue exercise of power to detain without trial have been built into the Constitution itself and incorporated as fundamental rights ......Preventive detention is not beyond judicial scrutiny." Relying on the statement of law by the Supreme Court and on the facts of this case. we do not find that the detaining authority has established any compelling necessity to detain the petitioner.

(21) Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, is the last in the series of preventive detention measures, starting with Cofeposa and National Security Act. It is interesting to note that the Narcotics Act has almost verbatum copied the provisions of the said two enactments. Being the last enactment in the series, it must be presumed that the Legislature was aware not only of the literal provisions of the said enactments, but also the strict interpretation by the Courts in regard to all the procedural guarantees inherent in the said provisions in the light of Article 22(5) of the Constitution. In 1988 the Parliament also amended Narcotic Drugs and Psychotropic Substances Act, 1985. The Act prescribes 10 years rigorous imprisonment and fine of Rs. 1,00,000.00 at the minimum sentence. By a subsequent amendment the Act has now prescribed death as the penalty for the second offence. Obviously the Legislature treated trafficking in narcotics as so dangerous to society that the said deterrent sentences were prescribed, which are not to be seen in any other case. If the Parliament would have suitable modified the provisions regarding preventive detention for narcotic trafficking under the 1988 Act, the matter would have been simpler. In that case the various decisions of the Superior Courts in regard to the strick compliance of the procedural guarantees would have, perhaps ceased to have direct application.

(22) The difficulties for the Courts are further increased by the approach and actions of the administration in not taking remedial measures to plug the loopholes. Even after the benefit of the judgments of the superior courts for the last three decades, the administration does not appear to be making any serious effort to see that the orders of preventive detention are properly drafted. according to the requirements of law. Further, there is no visible and effective effort on the part of the administration to ensure that all documents are applied to the detenue and within time. Even now there are number of cases where illegible copies are supplied to the detenues or the documents are not supplied in the language known to the detenue. We do not know whether there is any effective monitoring in the administration of the court cases where these simple requirements of law are yet not being effectively complied with. Is there any effort in the administration to locate as to who is responsible for the delays at different stages and whether any action is taken for fixing the responsibility on the officers who do not supply the documents or supply illegible copies of the documents or the translations not supplied or are where the delay has been caused. ?

 (23) The duty of the administration (and its ministers) to the society is not over by merely pointing an accusing finger at the Courts and to say,    "ANTI-SOCIALelements, i.e. Fear violators, bride burners and a whole hoard of reactionaries have found their heaven in the Supreme Court." But, is it sufficient for the superior courts to merely assert, "The Supreme Court, as it is bound to do, has implemented the laws and in implementation of laws, it is a tribute to the Supreme Court that it has not discriminated between person and persons, Criminals are entitled to be judged in accordance with law. If anti-social elements and criminals are benefited by the decisions of the Supreme Court, the fault rests with the laws and the loopholes in the legislation." ? (P.N- Duda v. P. Shiv Shankar & Others, Air 1980 Sc 1208).   

 (24) The problem is more acute and serious in case of trafficking in narcotics The social interest in the notational health of generations of people is threatened by narcotics. It obviously has a very deleterious effect on the economy of the country. There is not even a semblance of any personal right or a fundamental right for a citizen or for a foreigner to deal in narcotics which is required to be balanced. The catastrophic vice of narcotics will have to be drastically dealt with both by the administration and by the Courts by inventing appropriate procedure and remedies as otherwise the entire constitutional system will come to a disrepute. In Prakash Chandra Mehta v. Commissioner , the Supreme Court has recently observed.    "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 cases higher priority," If the citizens of this country would tend to advocate the summary methods of Khomeini's Iran (of immediately shooting the drug peddlers on their arrest, without trial), can they be blamed if we fail to effectively meet the challenge of the narcotics menace ?   

 (25) Till then we are constrained to quash the detention order dated 19.1.1989 against the petitioner and direct his release forthwith, unless his detention is required in any other breach of law. However, in exercise of our jurisdiction under Article 227, we direct the Sessions Judge to hear the criminal cases against the petitioner on day-to-day basis and dispose them of within four months from today.