Satya Prakash Behl vs Union Of India And Ors.
1996 Latest Caselaw 973 Del

JUDGMENT

N.G. Nandi, J.

(1) In this petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure for a writ of habeas corpus the petitioner pray for direction to the respondents to forthwith produce the detenu/petitioner before this Court and to forthwith set the petitioner at liberty And quash the order of detention No. F.801/7/96-PITNDPC dated 19.4.1996 And quash the declaration No. 5/96 and to declare as illegal unconstitutional, mala fide and void.

(2) The facts leading to the filing of this petition shortly stated are that the flat No. 34-F Building, Nirmal Colony, Bandra (West), Mumbai was raided by the officers of the Ncb, Mumbai on 10.1.1996 which resulted into recovery and seizure of four polythene bags containing brown sugar lying in a steel cupboard in kitchen and 75 capsules containing brown powder from a cavity in the back rest of the sofacum-bed. The brown powder was found to be heroine; that the statement of Ms. Margaret James Bol revealed the collection of 4 kg heroine from one Hazi staying at a nearby place in Bandra West; that in the follow up action it was revealed that the heroine was procured from his contact at Peshawar, Pakistan in partnership with Satya Prakash Behl (with alias names) and was also revealed that the Satya Prakash Behl (petitioner) was financing procurement of narcotic drugs and receiving money through hawala paid in Dubai through many contacts. This culminated into detention of the petitioner which is sought to be challenged in this petition.

(3) The petitioner has challenged the detention order Annexure 'A' on various grounds; one of the grounds challenging the detention order is that the representations by the detenu to the Detaining Authority which is a Joint Secretary, Government of India, Ministry of Finance, Revenue Department, New Delhi has not been considered by the Detaining Authority.

(4) Annexure B are the grounds on which detention order dated 19.4.1996 has been passed by the Defaming Authority. Ground No. 18 suggests that detenu has a right to make a representation against his detention to the Detaining Authority; Central Government and the Central Advisory Board (Prevention of Illicit Traffic in Narcotics Act) whereas ground No. 18 provides that if the detenu wish to make a representation to Detaining Authority and or the Central Government, detenu can do so and address it to the undersigned or to the Secretary to the Government of India, Ministry of Finance, Department of Revenue Pitndps Cell, West Block No. I, Wing 5, land Floor, R.K. Puram, New Delhi.

(5) Annexure G1, page 88 is a representation of the petitioner/detenu for revocation of the order of detention No. F No. 801 /796/PITNDPS dated 19.4.1996 issued under Section 3(1) of Pit ndps Act, by Shri A.K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi. It be noted that the said representation has been addressed to the Chairman and the other members of the Central Advisory Board and also to Sh. A.K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi and also before the Finance Minister, Ministry of Finance, Department of Revenue, South Block, Central Secretariat, New Delhi. The contention in this regard is that the aforesaid representation by the detenu has not been considered till today by the Detaining Authority.

(6) The respondent has filed affidavit in reply. In paragraph 7(1) thereof at page 9 it has been stated that "the representations dated 21st April, 1996,24rd April, 1996, 1stMay, 1996,4thMay, 1996,14thMay, 1996andthecomprehensiverepresentation dated 21st May, 1996 from Shri Behl addressed to the Joint Secretary, Revenue Secretary and the Finance Ministry were considered and rejected. Shri Behl was informed accordingly vide memorandum dated 25th June, 1996 which was received by him on 28th June, 1996."

(7) It is pertinent to note that it is not the say of the respondent in paragraph 7(1) above reproduced that it was a Joint Secretary who considered the representation of the petitioner. Page 63, Annexure-A, is the detention order dated 19.4.1996 wherein it is stated that it is the Government to india who is satisfied for the issuance of the detention order. It is pertinent to note that the representation page 85-86 by the detenu is to the Detaining Authority it does not appear that it is the Joint Secretary who is the Detaining Authority who has decided the representations of the petitioner independently.

(8) In the case of Kamlesh kumar Ishwardas Patel v. Union of India & Ors., it is observed that "where the detention order has been made under Section 3 of Cofeposa Act and Pitndps Act by an officer especially empowered for that purpose either by the Central Government or the State Government the person detained h?s a right to make a representation to the said officer and the said officer is obliged to consider the said representation and the failure on his part to do so results in denial of the right conferred on the person detained to make a representation against the order of detention. This right of the detenu is in addition to his right to make the representation to the State Government and the Central Government where the detention order has been made by an officer especially authorised by a State Government and to the Central Government where the detention order has been made by an officer especially empowered by the Central Government, and to have the same duly considered. This right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the authority that has made the order of detention at the time when he was served with the grounds of detention so as to enable him to make such representation and the failure to do so results in denial of the rights of the person detained to make such representation."

(9) As pointed out above in the instant case the Detaining Authority is the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue. The representations, Annexure G-l, page 88, is to the Chairman and the Members of the Central Advisory Board constituted under Pitndps Act and Shri A.K. Srivastava, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi And Finance Minister, Ministry of Finance, Department of Revenue, South Block, Central Secretariat, New Delhi. The ground of detention, Annexure B requires the representation to be made to the Detaining Authority or to the Central Government and the same may be addressed to the Detaining Authority, the signatory of the grounds of detention or to the Secretary to the Government of India, Ministry of Finance, Department of Revenue, Pit Ndps Cell, Block No. 1, Wing No. 5, Second Floor, Rk Puram, New Delhi and as pointed out above detention order, page 63, Annexure A, does not suggest the representation by the detenu having been considered by the Detaining Authority or the authority mentioned in the grounds of detention, page 71, as earlier pointed out. The above, in my opinion, would attract the applicability of the principle laid down by the Supreme Court in the case of Kamlesh kumar Ishwardas Patel (supra) and the present petition, therefore, deserves to be allowed and the detention order quashed.

(10) In the result the present petition is allowed, the detention Order No. F No. 801/7/96 PITNDPS dated 19.4.1996 made against detenu Satya Prakash Behl s/o Late Sh.Gian Chand Behl u/Section 3(1) of the Prevention of Illicitly Traffic in Ndps Act, 1988 is .hereby quashed and set aside and the detenu is ordered to be set free forthwith unless required in connection with any other matter.