GRACY Vs. STATE OF KERALA

JUDGEMENT

(1.) This writ petition under Art. 32 of the Constitution of India is by the mother of the detenu Noor alias Babu to quash the detention order F. No. 801/ 1/ 90-PITNDPS dated 25-1-1990 passed under S. 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (in short 'PITNDPS Act') and the order of confirmation in F. No.801/1/90-PITNDPS dated 24-4-1990 passed under S. 9(f) read with S. 10(2) of the PITNDPS Act, by the Central Government directing detention of the detenu for a period of two years w.e.f. 30-1-1990. The only argument advanced in support of this writ petition is infraction of Art. 22(5) of the Constitution of India. The facts material for the point raised are stated hereafter.

(2.) The detenu was arrested from his family estate at Kochuveetil House, Kuthugal, Udumpanchola Taluk, Idikki District, Kerala on 19-10-1989 on the accusation that he and his brothers were involved in extensive illicit cultivation of ganja plants (Cannabis Sativa) in violation of the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act). He was produced before the Judicial Magistrate who rejected his bail application. The Sessions Judge also rejected the bail application once but later granted conditional bail. Thereafter, the detention order dated 25-1-1990 was served on -the detenu on 30-1-1990. It was stated therein that even though prosecution of the detenu was likely to be initiated under the NDPS Act, there was likelihood of the detenu indulging in cultivation and production of narcotic drugs (ganga) on the detenu being released on bail on account of which there was compelling necessity to detain him under the, PITNDPS Act. The detenu was informed that he had a right to make representation to the detaining authority, Central Government and the Central Advisory Board against the detention order. The mode of address of the representation to the Central Government and the Central Advisory Board was also indicated in the detention order along with the grounds of detention in accordance with Art. 22(5) of the Constitution of India. The detenu's case (supra) was referred by the Central Government to the Central Advisory Board on 2-3-1990. During pendency of the reference before the Advisory Board, the detenu made his representation on 24-3-1990 and addressed it to the Advisory Board. The Advisory Board considered the reference relating to the detenu made by the Central Government and also the detenu's representation submitted to it. The Advisory Board gave the opinion that there was sufficient cause to justify his preventive detention. The Central Government then made the order dated 24-4-1990 confirming his detention and directed that the detenu Noor alias Babu be detained for a period of two years w.e.f. 30-1-1990.

(3.) It is admitted that the Advisory Board considered the detenu's representation before sending its opinion to the Central Government along with the entire record including the representation submitted by the detenu. It is also admitted that the Central Government made the order of confirmation dated 24-4-1990 on receipt of the opinion of the Advisory Board, but there was no independent consideration of the detenu's representation by the Central Government at any time. In the counter-affidavit filed initially by Shri A. K. Roy, Under Secretary to the Government of India, this fact was not clearly stated and, therefore, we directed an additional affidavit to be filed. In the additional affidavit filed by Shri A. K. Roy, it has not been disputed that the Central Government did not at any time consider independently the detenu's representation addressed to and given to the Advisory Board. In the additional affidavit, the stand of the Central Government in this behalf has been stated thus:-