Advocates:
ABHIJAT P. MEDHD. S. MAHRA

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CASE NO.:

Appeal (crl.) 838-841 of 1999

PETITIONER:

AMRITLAL AND ORS.

RESPONDENT:

UNION GOVERNMENT THROUGH SECRETARY, MINISTRY OF FINANCE AND ORS.

DATE OF JUDGMENT: 07/11/2000

BENCH:

UMESH C. BANERJEE & K.G. BALAKRISHNAN

JUDGMENT:

JUDGMENT

2000 Supp(4) SCR 450

The following Order of the Court was delivered :

In these appeals the validity of the order of detention passed by the Joint

Secretary to the Government of India stands challenged.

The contextual facts depict that the appellants were arrested pursuant to

the raid conducted by the officers of the Central Bureau of Narcotics

leading to the seizure of 132 Kgs. of opium and crime No. 22/96 was

registered against them under sections 8/18 of the Narcotics Drugs and

Psychotropic Substances Act, 1985 (for short ’the Act’). The appellants

prayed for being released on bail, but the Addl. District Judge, Neemuch,

rejected the application. Subsequently however they were detained under

section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and

Psychotropic Substances Act, 1988 (for short ’the PITNDPS Act’) by order

dated 5.6.1997. The record depicts that the grounds of detention were

communicated to the appellants within the stipulated time and subsequently

by order dated 17.8.1997 their detention has been confirmed. The appellants

moved the High Court on the ground that it was illegal and invalid as the

detaining authority passed the order mechanically and without application

of mind and that facts do not justify their detention. In any event the

detention was further challenged on the ground of the same being punitive

in nature. The Division Bench of the High Court however dismissed the

petitions on the ground that the detaining authority had shown awareness of

the petitioners being in the custody and had also communicated the

compelling reasons ’by hinting at the likelihood of their enlarging on

bail’. The Division Bench of the High Court while dealing with the matter

did take into consideration the factum of the two other persons connected

with the occurrence being released on bail and, as such, the detaining

authority was not oblivious of the petitioners’ custody and had also

provided compelling reasons under section 3(1) of the Act.

Learned advocate appearing in support of the appeals during the course of

hearing informed this Court that while it is true that by reason of efflux

of time the period of detention has otherwise expired but continued to

press the appeal with some emphasis by reason of the consequences as

provided in the statute to wit: the forfeiture of the property of the

detenue and it is in this context strong reliance has been placed on the

decision of this Court in Rivadeneyta Ricardo Augustin v. Govt. of the

National Capital Territory of Delhi & Ors., [1994] Supp. 1 SCC 597. This

Court while dealing with the matter and relying upon the decision of this

Court in Kamarunnissa v. Union of India, [1991] I SCC 128 came to the

conclusion that the order of detention cannot but be quashed. In

Kamarunnissa’s case (supra) this Court was pleased to observe thus :-

"The decisions of this Court to which our attention was drawn by the

learned counsel for the petitioners lay down in no uncertain terms that

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detention orders can validly be passed against detenus who are in jail,

provided the officer passing the order is alive to the fact of the detenus

being in custody and there is material on record to justify his conclusion

that they would indulge in similar activity if set at liberty."

In Augustin’s decision (supra) this Court also placed strong reliance on an

earlier but oft-cited decision of this Court in Binod Singh v. District

Magistrate, Dhanbad, [1986] 4 SCC 416 wherein it was held that if a person

is in custody and there is no imminent possibility of his being released

therefrom, the power of detention should not ordinarily be exercise