The order of detention and continued detention under the PIT NDPS Act must be based on compelling necessity and the detenu must be informed of his right to make a representation against the declaration.

( 1 ) IN exercise of the powers conferred by Section 3 (1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (Central Act 46 of 1988), in short (PIT NDPS Act), Shri Ram Chandran, Secretary to the Government of India, passed an order dated 11-1-90 detaining the petitioner Bachan Singh Wig, with a view to preventing him from engaging in illicit traffic in narcotic drugs.

( 2 ) THIS followed an incident when the petitioner alongwith one Shri Ramdevji Shah was found to be in possession of some incriminating documents leading to the recovery of 2404 slabs of hashish concealed in 74 metal boxes in the packings of Iron grills which were meant for export to Baltimor, U. S. A. under shipping bill no. 0766 dated 15-11-89. After interrogation, the petitioner was arrested for the commission of offence u/s 20/23 and 28 of the N. D. P. S. Act read with Section 135 (1) (a) of the Customs Act and produced before the Additional Judicial Magistrate, Arunakulam on 21-4-89, who remanded the petitioner to judicial custody till 4-12-89. The petitioner moved an application for his release on bail before the learned Addi. Judicial Magistrate but the same was dismissed on 29-11-89. His second application for bail dated 15-11-89 me: the same fate.

( 3 ) WHILE the petitioner was in jail, the above-said order of his detention u/s 3 (1) of the PIT NDPS Act was passed. He was duly served with the order and the grounds of his detention with- in the stipulated period. In the grounds of detention, he was also informed that if he wishes to make a representation against the order of detention, to the detaining authority and/or to the Central Government and/or to the Advisory Board, he may do so and forward the same through the Superintendent, Central Prison Trivandrum. Shri K. Prakash Anand, Additional Secretary to the Government of India passed the order u/s 10 (1) of the PIT NDPS Act for the continued detention of the petitioner for a period of 2 years from the date of the service of the order u/s 3 (1) of the Act. As suggested, the petitioner made a representation dated 27-3-90 against the order of his detention u/s 3 (1) of the PIT NDPS Act to the detaining authority. This representation has not yet been disposed of.

( 4 ) THE petitioner has now challenged the order of his detention dated 11-1-90 and his continued detention by virtue of declaration dated 20-2-90 u[s 10 (1) of the PIT NDPS Act, by way of his writ petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, for the issuance of directions for the quashing of the said orders and his immediate release.

( 5 ) THOUGH the learned counsel for the petitioner has urged numerous grounds for the quashing of the impugned orders of his detention but for the purpose of deciding the present petition, it is not necessary to go into each and every ground as, in my opinion, the petition can be disposed of on the following grounds.

(1) The order of detention and/or the grounds of detention which were served on the petitioner while he was in judicial custody do not show that there was a compelling necessity to pass the order of detention inasmuch as there was no imminent possibility of the petitioner being released on bail in the near future. The order of detention and his continued detention stand vitiated on this score alone.

(2) The Central Government while passing the impugned order of declaration 1115 10 (1) of the PIT NDPS Act, has not intimated the petitioner either contemporaneously or simultaneously that he has a right to make the representation and to whom against the said declaration. This inaction of the respondent has infringed upon the constitutional right of the petitioner under Article 22 (5) of the Constitution resulting in violating the detention and the continued detention of the petitioner.

( 6 ) RESPONDENT No. 2 State of Kerala has not cared to file any affidavit to counter the fir