Kalawati @ Kamla vs Union Of India And Anr.
1991 Latest Caselaw 379 Del

JUDGMENT

V.B. Bansal, J.

(1) In exercise of the powers under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short the Act) Shri R. Badri Nath, Secretary (Home) passed an order of detention of Smt. Kamlawati @ Kamla wife of Shri Kallu Ram with a view to preventing her from indulging in selling and possessing of narcotic drugs.

(2) It was also observed that even after the registration of 7 cases under the Act she could not be prevented from selling narcotic drugs. This order was served upon the petitioner on 27th January, 1990 and simultaneously the grounds of detention and the documents relied upon were supplied to her part with the order of detention.

(3) By way of this petition under Article 226 of the Constitution of India read with Section 482 Cr. P.C. the petitioner has prayed for quashing the detention order dated 26th January, 1990 confirmed on 9th April, 1990, with a prayer that she may be ordered to be released.

(4) I have heard learned counsel for the petitioner Sh. V.K. Vats, learned counsel, for Union of India Mr. Kamal Nijhawan and Shri B. D. Batra learned Standing Counsel for the State. I have also carefully gone through the records.

(5) The petitioner has taken a number of grounds in this petition. There has not been any counter by the respondents which would mean that the allegations made by the petitioner are to be treated as correct.

(6) Learned counsel for the petitioner has submitted that there has been non-application of mind by the detaining authority inasmuch as the relevant material which could have effected the subjective satisfaction of the detaining authority was not placed before it.

(7) Elaborating this submission it has been submitted that in the list of cases showing the involvement of the petitioner she has been shown to be still facing trial in case Fir 109 of 1987 under Section 21 of the Ndps Act which was regarding the recovery of 31 grams of smack. The case is shown to be at the evidence stage on 7th December, 1989.

(8) Learned counsel for the petitioner has referred to a judgment dated 7th December, 1989 of an Additional Sessions Judge, Delhi thereby acquitting the petitioner on 7.12.89. It is, thusi, clear that the factual position was that the petitioner had also been acquitted in this case before the matter was considered by the detaining authority and this factual information was not placed before the detaining authority.

(9) Learned counsel for the petitioner has also referred to an order dated 2nd January, 1990 by Deputy Commissioner of Police, North-West Distt, Delhi in proceedings under Section 47/50 of the Delhi Police Act against the petitioner. Vide said order the petitioner was ordered to furnish personal bond for Rs. 5000.00 with one surety in the like amount for keeping peace and be of good behavior for a period of one year who was also directed to conduct herself so as to prevent violence and alarm and not to indulge herself in criminal activities. It is, thus, clear that it was a very material document to be considered by the detaining authority which could have effected its subjective satisfaction for coming to the conclusion as to whether the order of detention should be passed or not.

(10) Learned counsel for respondent no. 2 has not been able to controvert these submissions that these were material documents.

(11) The law is very well settled. The non-consideration of material documents by the detaining authority would affect its subjective satisfaction and on this account alone the detention order cannot be sustained.

(12) As a result, the writ petition is allowed. The Rule is made absolute and the detention order dated 25th January, 1990 stands quashed.

(13) The petitioner is stated to have already been released after the expiry of the period of detention. No further order is, therefore, required.