Satyaprakash Behl vs Union Of India And Ors.
1997 Latest Caselaw 872 Del

JUDGMENT

J.B. Goel, J.

(1) In this writ petition under Articles 226 and 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, the petitioner has challenged the legality and validity of order of his detention dated 24.2.1997 passed by the Deputy Director General (Coordination), Narcotics Control Bureau under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short the 'Act') on the grounds of detention as communicated vide separate Memorandum dated 24.2.1997 and also the subsequent declaration No. 7/97 dated 3.4.1997 passed by the Secretary to the Government of India, Ministry of Finance, Department of Revenue under Section 10(1) of the Act.

(2) The Order for detention of the petitioner is stated to have been made " with a view to preventing him from engaging in the procurement, storage and abetting in the export from India of narcotic drugs".

(3) The material facts stated in the grounds of detention are that on 23.2.1996 Narcotics Control Bureau, Mumbai Zonal Unit (for short 'NCB, Mumbai) had received information from a source, who had provided an audio cassette recording of a telephonic conversation between the petitioner and one Haji Khan of Pakistan, regarding certain shipment of goods in some what clandestine manner. Another source information was received by them on 9.4.1996 regarding the consignment of two containers bearing No. 2765955 and 2783835 containing alfa alfa seeds sent from Herat, Afghanistan to Edveen, Ed-viering, Netherlands under a Bill of Lading No. TAAP/T/96/010 of M/s. Transasia of Germany wherein 3500 Kgs. of Hashish was alleged to be concealed. This information was passed on to drug enforcement agencies of certain European countries for alerting the drug enforcement net-work. On further information received from the aforesaid enforcement agencies, a search of office-cum-residence premises of the petitioner's nephew Sh. V.K. Behl at 5, 1st floor, Shyam Kunj, Linking Road, Khar (W), Mumbai, which was also the office premises of the petitioner, was carried out under the provisions of Ndps Act, 1985. During the course of the search of their office premises the Ncb, Mumbai inter alia recovered a fax copy of the aforesaid Bill of Lading. Subsequently, Russian drug authorities vide their letter dated 20.6.96 supplied copies of the Bill of Lading and other documents and informed about the seizure on 30.4.1996 of 1739 kgs. of Hashish by the Russian customs service from container No. 2783835 with seal No. 009536 which contained alfa alfa seeds concealed in-double false ceiling and back side. The Russian authorities further informed that another container No. 2765955 had crossed the Russian-Latvian frontier on 15.4.1996 enroute Herat (Afghanistan) Kushka (Russia) - Riga (Latvia) - Rotterdam (Netherlands) containing alfa alfa seeds, the consignee of both these containers being Haji Mohd. Zaheer of Herat, Afghanistan and Edveen Ed-Viering, Burgemeester, Boshkoop, being the consignee. It was also informed that the Rotterdam Customs Office Survelliance Post had seized from container No. 2765955 which had arrived on board Mv Sofia and which was supposed to contain 273 bales of alfa alfa seeds, 1700 Kgs. of Hashish concealed in the false ceiling and rear wall of the container. Copies of the Bill of Lading of the consignments were received from the foreign agencies. Some other documents were also seized from the aforesaid office premises during search on 19.6.1996 showing some link with foreign drug traffickers of Shri V.K. Behi. Some antecedents of the petitioner about his illicit activities since 1975 were also referred to in the grounds of detention. On the material available, the detaining authority-passed the aforesaid order and subsequently declaration under Section 10(1) of the Act was also made.

(4) Learned Counsel for the petitioner has challenged the order on several grounds. He has first contended that the audio cassette and the transcript of the cassette were not supplied alongwith the order/grounds of detention or within five days after the service of the same; and still the transcript of the cassette recording has not been supplied atall. In the absence of this material, the petitioner was denied the opportunity of making an effective representation against the order, resulting in violation of Art. 22(5) of the Constitution of India. For this reason detention is illegal and void. Whereas learned Counsel for the respondent has contended that the audio cassette has not been relied upon by the detaining authority and as such non-supply of the same is of no consequence.

(5) In the grounds of detention, about the audio cassette, it has been stated as under: "ON23.2.1996, Narcotics Control Bureau, Mumbai Zonal Unit received information from a source who provided audio cassette, recording of telephonic conversation between Shri Satya Prakash Bahl @ S.P. Bahl and one "Haji Khan" of Pakistan regarding shipment. In this conversation, Shri S.P. Bahl, inter alia, informed Haji Khan that the contents of the fax he received was not readable and asked Haji Khan to fax it again with "Attention Mr. Kumar". Shri Bahl also alerted Haji Khan not to speak on his residential number "3038". On enquiry from him, Haji Khan replied that total is 35 and further added that it is three and a half. To Haji Khan's query as to where the money will be paid, Shri Bahl replied that the money may be paid at Dubai or in India or at Peshawar."

(6) In paragraphs 23 and 25 it has been further stated as under:

"23.1have carefully gone through all the documents referred to hereinabove. On the basis of the statements and documents mentioned hereinabove, I have no hesitation in arriving at the conclusion that Shri Satya Prakash Bahl @ S.P. Bahl had engaged himself in the procurement, storage and abetting in the export from India of narcotic drugs.

25.While passing the detention order under the Prevention of IIicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988,1 have relied upon the documents mentioned in the enclosed list."

(7) In the list of documents supplied alongwith the grounds of detrition, the audio cassette was not included nor supplied with the grounds of detention. The conversation mentioned in the first paragraph has apparently been extracted or paraphrased from some audio cassette recording. This conversation is apparently suggestive of some clandestine deal between the petitioner and Hazi Khan and possibly connecting the petitioner with the seizure of the narcotic drug in Russia and Netherlands. In that case the audio cassette is very relevant material to show the complicity of the petitioner and this material should have been supplied to the petitioner alongwith the grounds of detention. However, this was not done. After receipt of the detention order, the petitioner on 2.3.1997 vide his letter dated 3.3.1997, had asked for supply of the cassette to enable him to make an effective representation. The cassette was supplied on 22.3.1997 but with out the cassette player and its transcript and it was on further demand made in letter dated 22.3.1997 cassette player was supplied on 29.3.1997, yet, the transcript was not supplied.

(8) In Khudiram Dass v. State of West Bengal and Ors., regarding the constitutional safeguards under Article 22(5), it was observed:

(1)the Detaining Authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenu the grounds on which the order of detention has been made, and (2) the Detaining Authority must afford the detenu the earliest opportunity of making a representation against the order of detention. These are the barest minimum safeguards which must be observed before the executive authority can preventively detain a person...."

(9) It was further held in this case that the "grounds" under Article 22(5) mean all the basic facts and materials which have been taken into account by the Detaining Authority in waking the order of detention and on which, therefore, the order of detention is made.

(10) In the counter affidavit dated9.7.1997 filed on behalf of the respondents,but not of the Detaining Authority who had passed the order, the stand taken is that ''the audio cassette was not relied upon document. The non supply of which could have caused no prejudice to the interest of the petitioner".

(11) It has been repeatedly laid down by the Supreme Court that an opportunity to make a representation against the order of detention necessarily implies that the detenu is informed of all that has been taken into account against him, it means that the detenu Is to be informed not merely of inferences of fact but all the inferences of facts plus factual material. Whether the documents concerned, are referred to, relied upon, or taken into consideration by Detaining Authority, they must be supplied to the detenu as part of the grounds as far as possible to enable the detenu to make an effective representation immediately on receiving the grounds of detention. Delay in complying this requirement would in validate the order of detention. [Smt.Shalini Soni v. Union of India and Ors., ; Tushar Thakkar v. Union of India and Ors., ; S.Gurdip Singh v. Union of India & Ors., ; Mehdi Mohd. Zowli v. State of Maharashtra, , and Kirti Kumar v. Union ofIndia, .

(12) If material or vital facts which would have bearing on the issue and influence the mind of the Detaining Authority one way or the other are withheld or suppressed by the Sponsoring Authority or ignored and not considered by the Detaining Authority before issuing the detention order, it would vitiate its subjective satisfaction rendering the detention order illegal. [D.S. Duggal v. The Police Commissioner & Another, ]

(13) As noticed earlier the audio cassette was a very material circumstance/ material. It ought to have been taken into consideration by the Detaining Authority. If the stand taken in the counter affidavit is correct and the audio cassette was not relied upon and considered by the Detaining Authority, this itself would vitiate the subjective satisfaction and render the order illegal.

(14) Learned Counsel for the petitioner has also contended that the Detaining Authority in arriving at its subjective satisfaction has taken into consideration the previous grounds of detention alongwith fresh facts, whereas the first order of detention based on earlier grounds was quashed by this Court on 16.12.1996 i.e. before the second order was passed, in Criminal Writ Petition No. 375/96, S.P ehl v.Uinon of India &Ors.and that also makes this order invalid. He has relied on paras 18(5) and 19 of the grounds of detention and the case of Chhagan Bhagwan Kahar v. N.L. Kalna, . Paras 18(5) and 19 of the grounds served on the petitioner, so far as relevant for the present purpose, read as under:

"18.Shri S.P. Bahl was also earlier involved in a number of illicit drug trafficking/smuggling cases which are detailed below: (5) Arrested by Ncb, Bombay in 1996 in connection with his involvement in seizure of 5 kgs. of heroin from a flat inBandra, Bombay. He was also detained under Pitndps Act, 1988 in this case.

19.....Considering the involvement of S/Shri Satya Prakash Bahl and Vimal Kumar Bahl earlier in the drug trafficking case as also the design of conspiracy at the international level involving a number of countries,I consider that it is a fit case for detaining Sh. S.P.Bahl and Vimal Kumar Bahl under Section 3(1) of the Pitndps Act, 1988."

The first order of detention was quashed by this Court on 16.12.1996. The Supreme Court in Chhagan Bhagwan Kahar's case (supra) after referring to relevant case law including Ibrahim Bachu Bafan v. State ofGujrat, , reiterated the law on this point as under:

"It emerges from the above authoritative judicial pronouncements that even if the order of detention comes to an end either by revocation or by expiry of the period of detention there must be fresh facts for passing a subsequent order. A portion when a detention order is quashed by the Court issuing a high prerogative writ like habeas corpus or certiorari the grounds of the said order should not be taken into consideration either as a whole or in part even alongwith the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the Court strikes down an earlier order by issuing rule it nullifies the entire order."

(15) This has again been so held in Johangirkhan Fazalkhan Pathan v. The Police Commissioner, Ahmedabad and Another, and Ramesh v. State of Gujarat and Others . It follows that when the earlier order of detention was quashed in writ petition by the High Court that order stood nullified. The Detaining Authority has obviously relied on that earlier order in paras 18 and 19 of the grounds of detention as additional input for arriving at its satisfaction, which was not permissible. This order is thus vitiated and is liable to be set aside on this ground as well.

(16) Learned Counsel for the respondent has contended that this material was relied by way of antecedents of the detenu.She has further contended that even after ignoring these two circumstances other material was available to the Detaining Authority to justify the detention order and that the detention order cannot be invalidated for this reason. She has relied on Section 6 of the Act and Prakash Chander v. Commissioner and Secretary of Govt. of Kerala, . Section 6 of the Act reads as under:

6.Grounds of detention severable.-Where a person has been detained in pursuance of an order of detention under Sub-section (1)of Section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly-

(A)such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are - (i) vague, (ii) non-existent, (iii) not relevant,. (iv) not connected or not proximately connected with such person, or (v) invalid for any other reason whatsoever, and it is not therefore possible to hold that the Government or officer making such order would have been satisfied as provided in Subsection (1) of Section 3 with reference to the remaining ground or grounds and make the order of detention;

(B)the Government or officer making the order of detention shall be deemed to have made the order of detention under the said Sub-section (1) after being satisfied as provided in that sub-section with reference to the remaining ground or grounds.

(17) In Prakash Chander's case (supra) while construing Section 5A of the Cofeposa Act, 1974, which is in identical terms to Section 6 of the present Act, it was held that:

"SECTION 5A stipulates that when the detention order has been made on two or more grounds such order of detention should be deemed to have been made separately on each of such grounds and accordingly if one ground which is irrelevant or is inadmissible, had been taken into consideration that would not make the detention order bad."

(18) In that case the confessions made by the detenus were relied in the ground s of detention but the retractions made had not been considered. It was held if there are relevant materials on which a reasonable belief or conviction could have been entertained by the Detaining Authority on the grounds mentioned in Section 3(1) of the said Act irrespective of the fact if other grounds should have been taken into consideration or not, the order could not be invalidated.

(19) The other materials which have been relied in support of the detention order are some documents seized from the office premises during search on 19.6.1996 and some documents received from foreign drug authorities.

(20) The petitioner is in custody since 10.1.1996 in a Ndps case and was also under detention from 8.4.1996. The premises where from some documents were seized were said to be in joint possession of the petitioner and his nephew and obviously were not in exclusive possession or control of the petitioner when search was made. Being in detention at that time, in any event, it cannot be said that the documents were in control of the petitioner and as such it can also not be said that those documents were in possession and control of the petitioner and were seized from the custody of the petitioner. Thus, those documents could not be used against him.

(21) The other documents also do not implicate the petitioner. Thus no satisfaction could have been reached for passing the impugned detention order against the petitioner on such material.

(22) Learned Counsel for the petitioner has then contended that the goods were not imported in India nor stored in India nor were exported from India nor were procured in India and as such the case does not fall within the meaning of the expression 'illicit traffic' under Section 2(e) of the Act, and that the impugned detention order has been made without application of mind. Section 2(e) of the Act reads as under:

2.(e) "illicit traffic", in relation to narcotic drugs and psychotropic substances, means -

(I)cultivating any coca plant or gathering any portion of coca plant; (ii) cultivating the opium poppy or any cannabis plant; (iii) engaging in the production, manufacture, possession, sale, purchase, transportation, ware housing,concealment, use or consumption,import inter-State, export inter-State, import into India, export from India or transshipment, of narcotic drugs or psychotropic substances; (iv) dealing in any activities in narcotic drugs or psychotropic substances other than those provided in Sub-clauses (i) to (iii); or (v) handling or letting any premises for the carrying on of any of the activities referred to in Sub-clauses (i) to (iv); other than those permitted under the Narcotic Drugs and Psychotropic Substances Act. 1985 (61 of 1985), or any rule or order made, or any condition of any licence, term or authorisation issued, thereunder and includes - (1) financing, directly or indirectly, any of the aforementioned activities; (2) abetting or conspiring in the furtherance of or in support of doing any of the aforementioned activities; and (3) harbouring persons engaged in any of the aforementioned activities;

(23) The Act applies within the territory of India. We find considerable force in tinis argument also. There is nothing stated in the grounds of detention, excluding the alleged conversation said to be recorded on the audio cassette discussed above, that would show any overt act done by the petitioner, which may possibly constitute "procurement" of the contraband goods in India. Even otherwise, no case is made out at all of "storage" or "export" from India" of narcotic drugs by the petitioner. Inclusion of these specific heads of activity in the impugned detention order shows total non-application of mind in making the order under Section 3 of the Act.

(24) Learned Counsel for the petitioner has also raised some other contentions. In view of our above findings, it is not necessary to discuss all of them.

(25) For the reasons stated above, the order of detention passed under Section 3(1) and the declaration under Section 10 are illegal, bad and invalid.

(26) Accordingly, the writ petition is allowed and the impugned order of detention and also the declaration under Section 10 are hereby quashed. The petitioner be set at liberty forthwith, if not required in any other case.