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1996 Supreme(Ker) 248
Judges : K.G.BALAKRISHNAN,K.NARAYANA KURUP
Aji Kumari - Appellant
Versus
State Of Kerala And Others - Respondent
Case No : O.P. Nos. 4642 and 10258 of 1996-S
Decided On : 07/17/1996
Advocates Appeared :
For the Petitioner: B.S. Swathi Kumar, Advocate. For the Respondent: P. Jayasankar, Govt. Pleader (for Nos. 1 and 3) and George Poonthottam (ACGSC) (for No. 2).
The detenu has a right to make representations against continued detention, and the absence of the Advisory Board's opinion can lead to the setting aside of continued detention orders.
Headnote:
PITNDPS Act - Detention Orders - Sec. 3(1) and 10(1) - Summary of Acts and Sections: The court discussed the provisions of Sec. 3(1) and 10(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act) and emphasized the procedures for reference to the Advisory Board and the time given for the Board to give its opinion. The court highlighted the importance of the Advisory Board's opinion in cases of continued detention under Sec. 10(1) and emphasized the detenu's right to make representations. The court referred to legal precedents to support the requirement for the detenu to have an opportunity to represent against continued detention. The court set aside the continued detention orders due to the absence of the Advisory Board's opinion, ordering the release of the detenus.
Fact of the Case:
The petitioners were detained under the provisions of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act) and challenged the detention orders on the ground that the Advisory Board did not give an opinion regarding the continued detention.
Finding of the Court:
The court found that the detenus were not given an opportunity to submit their case before the Advisory Board as the continued detention orders were served after the Board gave its opinion. The court emphasized the importance of the Advisory Board's opinion in cases of continued detention and the detenu's right to make representations.
Issues: The main issue was the absence of the Advisory Board's opinion regarding the sufficiency of cause for the continued detention under Sec. 10(1) of the PITNDPS Act.
Ratio Decidendi: The court emphasized the detenu's right to make representations against continued detention and referred to legal precedents to support the requirement for the detenu to have an opportunity to represent against continued detention. The court set aside the continued detention orders due to the absence of the Advisory Board's opinion.
Final Decision: The court ordered the release of the detenus as they had already undergone the period of detention under Sec. 3(1) of the PITNDPS Act.
BALAKRISHNAN, J.
Petitioners in both the Original Petitions have been detained under the provisions of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter it will be referred to as 'PITNDPS Act'). In both the cases the detention orders have been passed under Secs. 3(1) and 10(1) of the PITNDPS Act. The detention is challenged on the ground that the Advisory Board under the PITNDPS Act has not given opinion regarding the continued detention and, therefore, the petitioners prayed that they are entitled to be released on completion of one year period of detention ordered under Sec. 3(1) of the PITNDPS Act.
2. In O.P. No. 4642/96 the order of detention under Sec. 3(1) was passed on 11-7-1995 and it was served on him on 15-7-1995. Subsequently an order of dtention was passed by the Central Government on 11-8-95 and that was served on the detenu on 1-9-95. The order of detention passed under Sec. 3(1) on 11-7-1995 was referred to the Advisory Board constituted under Article 22(4) of the Constitution for its opinion and the Board met on 23-8-95 and gave its opinion to the effect that there was sufficient cause for detention of the detenu under Section 3(1) of the PITNDPS Act. The contention of the petitioner is that the order continued detention passed under Sec. 10(1) of the PITNDPS Act was received by the detenu only on 1-9-1995 and the petitioner did not get an opportunity to place his case before the Advisory Board and the Advisory Board had no occasion to give its opinion regarding the sufficient cause for the continued detention in respect of the order passed under Sec. 10(1) of the PITNDPS Act.
3. In O.P. No. 10258/96 the detention order passed under Sec. 3(1) of the PITNDPS Act was passed on 11-7-1995 and it was served on him on 12-7-1995. Thereafter, the order of continued detention was passed under Sec. 10(1) of the PITNDPS Act on 11-8-1995 and it was served on him on 12-9-95. In this case also the detention order passed under Sec. 3(1) of the PITNDPS Act was referred to the Advisory Board and the Advisory Board in its meeting held on 23-8-1995 considered the question of the sufficiency of cause for detention of the detenu under Sec. 3(1) of the Act and gave its opinion. The contention of the petitioner is that as regards the order passed under Sec. 10(1) of the PITNDPS Act for continued detention the petitioner did not get an opportunity to place his case before the Advisory Board as the Advisory Board had already given its opinion as early as 23-8-1995. Therefore, the order of continued detention is challenged.
4. We heard counsel for the petitioners, learned Government Pleader and also the learned counsel who appeared for the Central Government. First respondent has filed a counter affidavit. In paragraph-11 of the counter affidavit it is stated that after the passing of the detention order under Sec. 3(1) of the PITNDPS Act the matter was referred to the Central Government under Sec. 3(2) of the PITNDPS Act by letter dated 12-7-1995. It is alleged that after the passing of continued detention order under Sec. 10(1) of the PITNDPS Act, the detenu could have filed a representation before the Central Government.
5. In the counter affidavit filed by the Union of India it is stated that the State Government issued the detention order on 11th July, 1995 and the declaration under Sec. 10(1) of the PITNDPS Act was passed on 11th August, 1995. The detenu was also informed that he has a right to represent before the Detaining Authority, Government of Kerala, Central Government and the Advisory Board against the declaration made against him and no representation was filed by the detenu. In O.P. No. 10258/96, the respondents have not chosen to file any counter affidavit.
6. The main thrust of the arguments of the petitioners' counsel is that there was no opinion by the Advisory Board regarding the sufficiency of cause for the continued detention passed under Sec. 10(1)
