IMPORTANT POINT
Where the detention order is served to the detenu while in judicial custody the Detaining Authority should subjectively satisfy itself that the possibility of detenu being granted bail and his reverting back to prejudicial activities is based on cogent material.

Headnote:Prevention of illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 3(1) - Preventive detention - Validity of Order – NDPS Act 1985-Section 37 - Detenu involved in drug trafficking of international ramification - Detention order served on detenu while he was in judicial custody - Detaining Authority reached conclusion based on cogent material that there: was strong likelihood of detenu being granted bail and reverting to his prejudicial 'activities" Detention order held, valid.
       Held: The detenu was involved in drug trafficking of international ramifications; was earning a phenomenal amount through it; and was using a Maruti car to transport drugs. The grounds also leave no iota of doubt that though the detenu was in judicial custody but there was a likelihood of his being granted bail and if the detenu was released on bail he would revert to his prejudicial activities of dealing in illicit drug traffic. It is on the basis of the enormity of the allegations levelled against the detenu in the grounds of detention that the Detaining Authority has reached the said conclusion. The subjective satisfaction in our judgment was reached on very cogent material. (Para 16)
       In short we am implicitly satisfied that the impugned detention order cannot be faulted and all the pre-requisites as to when a detention order should be made against a person who is in custody have been satisfied. The Detaining Authority in the grounds of detention has recorded his awareness:- (i) that the detenu was in custody; ('ii) there was possibility of the detenu being released on bail; (iii) that the antecedents of the detenu indicate that once on bail there was a strong possibility of his reverting to prejudicial activities of dealing in traffic of drugs; and (iv) that therefore his detention under the PITNDPS Act was imperative in law. (Para 17)
       Result: Petition dismissed.

JUDGMENT

Vishnu Sahai. J. - By means of this petition preferred under Article 226 of the Constitution of India the petitioner who is the wife of the detenu Nahim Noor Qureshi @ Haji has impugned the detention order dated 8th April. 1996 passed by the 1st respondent Mr. A.K. Srivastava. Joint Secretary to the Government of India, Ministry of Finance. (Department of Revenue) New Delhi, detaining the detenu under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'PITNDPS ACT')

2. At the very outset we would like to point out that the learned Counsel for the petitioner Mr. Shirish Gupte candidly stated that an earlier writ petition preferred by the petitioner in respect of the said detenu (Criminal Writ Petition No. 839 of 1996) challenging the same detention order was disposed of as withdrawn by a Division Bench of this Court on June 20. 1997 on a statement made at the bar that the period of detention of the detenu had been over. Mr. Gupte urged that the said statement made was under some confusion because by virtue of a declaration under Section 10(1) of the PITNDPS Act, dated 8-5-1996, the period of detention of the detenu was extended from one year to a period of two years. He pointed out that although even the extended period of detention of the detenu of two years is over but since on 23-4-1997 an order under Section 68F read with 68F of the NDPS Act for freezing the detenu's property has been passed, this petition would be maintainable.

3. The detention order dated8-4-1996 alongwith the grounds of detention bearing the said date was contemporaneously served on the detenu while he was in custody on 18-4-1996.

4. The prejudicial activities of the detenu as contained in the grounds of detention in brief are as under:

On 10-1-1996 the officers of the Narcotic Control Bureau, Mumbai on the basis of the specific intelligence searched Flat No. 34/F Building, Nirmala Colony, Mount Mary Steps, Bandra (West), Mumbai-400 050 in the presence of two independent witnesses and recovered four polythene bags containing brown sugar from a plastic shopping bag which was lying in a steel cupboard in the kitchen and 75 capsules containing brown sugar from another plastic shopping bag which was recovered from a cavity in the back rest of the Sofa-cum-bed. The total weight of brown sugar was 5 kgs. The search was conducted in the presence of Ms. Margaret James Bo 1. a Sudanese national who was a tenant in the said flat.

In her statement dated 10-1-1996, 11-1-1996, 17-1-1996, 20-1-1996 and 24-1-1996 Ms. Margaret Bol, inter alia stated that she was staying in the said flat on lease and licence basis; a Nigerian named Johan Thomas also was staying with her and the latter has gone to Nigeria on vacation. She admitted that on 10-1-1996 officers of the NCB searched her flat and seized US $ 34 and Indian currency to the tune of Rs. 23.750j-and some documents along with 5 kgs of heroin out of which 4 kgs had been handed over to her by the detenu who was a Pakistani national. She also admitted therein that the detenu had come in a white Maruti-800 car and had handed over the said heroin to her.

The detenu in his statements dated 25-1-1996.26-1-1996,27-1-1996 and 5-2-1996 stated that he hailed from Quetta. Pakistan came to India in the year 1988 and was staying with the petitioner in Flat No. 203. 'A' Wing. Utsahi Building. 2nd Floor Rebellow Road, Mount Mary Steps, New Garden, Bandra (West) Bombay-50. He admitted that he was having telephone and fax connection facilities for the purpose of supplying of heroin and charas to his customers. He also admitted that on 10-1-1995 he supplied 4 kgs. of heroin to one Sudanese lady named Margaret and the said lady was his customer. He also admitted that pursuant to the apprehension of Margaret Bol, he delivered 6 kgs. of heroin to Satya Prakash Behl at his residence and thereafter along with the petitioner left for Lonavala where on

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IMPORTANT POINTWhere the detention order is served to the detenu while in judicial custody the Detaining Authority should subjectively satisfy itself that the possibility of detenu being granted bail and his reverting back to prejudicial activities is based on cogent material.

Cases Referred (1)

IMPORTANT POINT
Where the detention order is served to the detenu while in judicial custody the Detaining Authority should subjectively satisfy itself that the possibility of detenu being granted bail and his reverting back to prejudicial activities is based on cogent material.