PRADEEP NATH MATHUR Vs. UNION OF INDIA

JUDGEMENT

(1.) this is another petition in which a successive order of detention has been challenged. The petitioner Pradeep Nath Mathur was detained on 26th May, 1988 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short the COFEPOSA Act) under a detention order dated the 24th May, 1988 passed by Shri K. L. Verma. Joint Secretary to the Government of India, a specially empowered officer. The case of the detenu was referred to the Advisory Board on 27th June, 1988. The reference was within the limitation of "five weeks" prescribed under Section 8 of the COFEPOSA Act. The Board, however, did not express any opinion within the prescribed period. The Government of India on 25th August, 1988, in exercise of powers conferred on them by Section 11(1) of the COFEPOSA Act revoked the order of detention. The reason stated in that order (Annexure 'G' to the writ petition) for revocation is as follows :

(2.) Thereafter on 26th August, 1988, the impugned detention order was passed under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Ordinance, 1988 (hereinafter referred to as the Ordinance). It was passed by Shri K. L. Verma, the special empowered officer. with a view to preventing the detenu herein from engaging in the purchase, transportation and export from India, of narcotic drugs. The order of. revocation as well as the impugned detention order were served on the detenu on 27th August, 1988 while he was in judicial custody/detention. We may note here that the petitioner was arrested on 8th April, 1988 and remanded to judicial custody on the allegation that he had committed various offences under the Narcotic Drugs and Psychotropic Substances Act, 1985. On 30th September, 1988, the Government of India issued a declaration under Section 10(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short the PITNDPS Act) thereby extending the time to obtain the report of the Advisory Board. On receipt of the said report, an order dated the 18th November, 1988 confirming the detention of the petitioner w.e.f. 26th May, 1988 for a period of two years was issued. The confirmation is thus not of the detention w.e.f. the passing of the impugned order of detention but from the date the detenu was detained pursuant to the earlier order of detention, which has since been revoked.

(3.) Mr. Ashok Arora, learned counsel for the petitioner submits that the detention of the petitioner herein w.e.f. 26th May, 1988 became unconstitutional in the absence of the report of the Advisory Board. As has been noticed above, the advisory Board did not give its report within the stipulated period resulting into the revocation of the earlier order of detention on 25th August, 1988. That order was served on the detenu on 27th August, 1988. Mr. Arora is right when he says that by then three months period of detention had been over and no report of the Advisory Board was obtained during that period. His reliance is on Abdul Latif v. B. K. Jha & Ors, AIR 1987 SC 725(1). He has also cited two judgments of this Court, in which Abdul Latif's case (supra) has been followed. Those cases are Gurbax Bhiryani v. Union of India & Ors. (Cri. Writ Petition No. 491/88) decided on February 7, 1989(2) and Surinder Mehta & Anr. v. Shri K. L. Verma & Ors. (Cri. Writ Petition Nos. 567 and 561 of 1988) decided on February 23, .989(3).