1995 Supreme(Raj) 1042
RAJASTHAN HIGH COURT
V.S.Kokje, P.C.Jain, JJ.
Sheru Khan - Appellant
Versus
Union of India - Respondent
Habeas Corpus Petition No. 744 of 1995.
Decided On : 11-10-1995
The grounds of detention must be explained to the detenu in a language which he understands, and unexplained delay in serving the detention order would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority.
Headnote:
PREVENTIVE DETENTION - GROUNDS OF DETENTION - EXPLANATION - NECESSITY - DELAY IN SERVING ORDER - IDENTIFICATION - ABSENCE OF DETENU - SATISFACTION OF DETAINING AUTHORITY - JUDICIAL REVIEW.
Fact of the Case:
The petitioner was detained under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, on the grounds that he was involved in illicit trafficking of narcotic drugs. The petitioner challenged his detention on the grounds that the grounds of detention were not explained to him, the delay in serving the detention order was not properly explained, the identification from photographs was not proper, and the detaining authority was not satisfied about the necessity of detention.
Finding of the Court:
The court held that the order of detention was vitiated because the grounds of detention were not explained to the detenu. The court also found that the detaining authority was oblivious of the correct position that the petitioner had already been apprehended and was behind the bars, and thus the subjective satisfaction about the necessity to detain was clearly vitiated.
Issues: 1. Whether the grounds of detention were properly explained to the detenu? 2. Whether the delay in serving the detention order was properly explained? 3. Whether the identification from photographs was proper? 4. Whether the detaining authority was satisfied about the necessity of detention?
Ratio Decidendi: 1. The court held that the order of detention was vitiated because the grounds of detention were not explained to the detenu. The court relied on the Supreme Court decisions in Chaju Ram v. State of Jammu & Kashmir and Smt. Raziya Umar Bakshi v. Union of India & Ors., which held that the grounds of detention must be explained to the detenu in a language which he understands. 2. The court found that the delay in serving the detention order was not properly explained. The court relied on the Supreme Court decisions in Shafiq Ahmed v. Distt. Magistrate, Meerut and T.D. Abdul Rahman v. State of Kerala, which held that unexplained delay in serving the detention order would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority. 3. The court held that the identification from photographs was not proper. The court relied on the Supreme Court decision in Kartar Singh v. State of Punjab, which held that it is quite impossible to identify any person on the basis of his photographs. 4. The court found that the detaining authority was not satisfied about the necessity of detention. The court relied on the fact that the petitioner had already been apprehended and was behind the bars, and thus the subjective satisfaction about the necessity to detain was clearly vitiated.
Final Decision: The petition was allowed, the order of detention was quashed, and the petitioner was ordered to be released from detention.
JUDGMENT
1. - The petitioner was in judicial custody because of a case under the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short NDPS Act). While in custody he was served order dated 19.1.1994 whereby he was directed to be detained and kept in custody under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. The grounds of detention were also served on the petitioner on the same day. It was alleged in the grounds that the petitioner has engaged himself in illicit traffic in Narcotic Drugs and Psychotropic Substances and it was necessary to detain him under the Prevention of Illicit Traffic in NDPS Act with a view to preventing him from engaging in the procurement and abetting in the concealment and transportation of the narcotic drugs. The satisfaction of the detaining authority was said to have been based on information supplied by one Raj Kumar Mehta who was caught smuggling contraband goods in the night intervening 5/6.10.1993 in truck No. GJ 9T 5419. The said Raj Kumar Mehta and the driver of the truck were apprehended and heroin was found to be transported in the truck. In statement dated 6.10.93 Raj Kumar Mehta gave an information that petitioner was one of the persons who was purchasing Acetic Anhydride from him. He also informed the police that one Mohd. Hanif Khan of Lahore, Pakistan had also informed him that 50-60 Kg. of heroin powder would be sent by him through the petitioner to Raj Kumar Mehta, and as soon as the substance was arranged the petitioner will contact Raj Kumar Mehta on telephone. On dated 3.10.93 the petitioner rang him up and informed that 60 Kg. of the power had been sent to Delhi for him in a truck with Sumer Khan It was further informed by Raj Kumar Mehta that on 4.10.93 Sumer Khan rang him up and told him that he had brought the truck to Bahadurgarh and Raj Kumar Mehta should meet him at 6.00 p.m. at Idgah. Accordingly, it was alleged that Raj Kumar Mehta met Sumer Khan and told him that the goods sent by the petitioner had been brought by him. When Raj Kumar Mehta and others were apprehended alongwith truck and a Maruti Car, he made a statement that the goods were sent by the petitioner to him. The owner of the truck Sumer Khan also made a statement that the goods were loaded by the petitioner. In his statement Ravinder Mehta nephew of Raj Kumar Mehta also stated that goods belong to the petitioner. Raj Kumar Mehta, Ravinder Mehta and Sumer Khan were taken in custody for offence under the NDPS Act and a complaint was filed against all of them on 4.1.94. The petitioner and one Deen Mohd. were said to be absconding. The petitioner's residential premises were also searched during his abstention, but nothing incriminating was recovered. On the basis of this fact the satisfaction that it was necessary to detain the petitioner in order to prevent him from engaging in smuggling activities was reached. When the petitioner was apprehended in connection with the criminal case registered under the NDPS Act, this order was served on him on 13.10.94.
2. The petitioner has challenged his detention on the ground that the grounds of detention were served on him in English language alongwith translated copy thereof in Hindi, running in 163 pages. According to him the grounds and documents were not read over to him and were not explained to him at the time of service of grounds of detention. This, according to the petitioner seriously prejudiced him and came in the way of preferring an effective representation against the detention. The petitioner further submits that report of abscontion was not supplied to him as a document, but was relied upon by the detaining authority. It was also submitted that the petitioner was said to have been identified by Raj Kumar Mehta on the basis of photographs which was not a proper identification. According to the petitioner, it is a case of wrong identity and he has been made a scape goat for the alleged engag
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