NARENDRA KUMAR RAI Vs. STATE OF U P

JUDGEMENT

(1.) NARENDRA Kumar Rai, the petitioner, by this petition has challenged his detention under provisions of Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, herein after referred to as COFEPOSA, in pursuance of the order dated 18th December, 1990 issued by the State Government against him. Briefly stated, the grounds of detention served on the petitioner allege that one Abani Kumar Chaudhary and his associate Shanti Swarup were searched at Indra Gandhi International Air Port on 12-8-1990 while they were going to take a flight No. KLM 836 from New Delhi to London. On their search 975 grams of heroin was recovered from the bottom of their hand-bags. On their statements being recorded by the officers of Narcotic Control Bureau, Abani Kumar Chaudhary revealed that his real name was Pratipal Singh, son of Awtar Singh, resident of 28/36, Benia Bagh, Varanasi. Both the above-mentioned persons further revealed that the recovered heroin was given to him by Virendea Rai from his residence. There alter, the ground went on to say that Birdopur house of Virendia Bai was raided on 13th August, 1990 where he resided alongwith his brother NARENDRA Kumar Rai, the petitioner and Swaran Kumar as a members of the joint family. When the room of the petitioner was broken open, under the mattress of the double bed in the said room, seven gold biscuits of foreign origin were recovered from a polythene bag. The recovered biscuits weight 855. 220 grams valued at Rs. 2, 92, 496. 50. No valid document lor possession of the above-mentioned gold could be produced. On interrogation, the petitioner informed the officials of the raiding party on 13-8-1990 that the petitioner and his brother had been indulging in the manufacture and trade of heroin since ly83-84, from which business they were having good income. The petitioner's brother, Yirendra Rai, started the business of manufacturing hen iii and from the earning and sale of heroin enough money was earned with the result that a Hat in Bombay was purchased by the petitioner's brother, Virendra Rai, who started manufacturing heroin in Bombay itself. The peti tioner further told the officers of the Bureau that he and his brother used to assist Virendra Rai in his illegal activities. He further disclosed that from the money earned out of the said business, the petitioner had purchased 4-5 acres ol land in Varanasi. He also disclosed that once his brother was apprehended in Bombay on 19-5-1986 alongwith the instruments for manufacturing heroin. The said matter was still pending in court. Who petitioner turtuer disclosed that after stopping the business of heroin for some time, his brother, Virendra Rai, again started the business of heroin and started selling heroin in foreign countries also with the result that during the last four or five years one house in Bombay, one in Bangalore, one in Minto-House Colony, Varanasi and soma land near Kasi Vidhyapeeth, Varanasi and some other properties were also purchased by them. The petitioner further admitted that about two years prior to the said incident, he and his elder brother, Virendra Rai, manufactured heroin and from the sale of that heroin, the recovered gold biscuits had been purchased. The petitioner further revealed that his brother, Virendra Raiy had given these biscuits to him to keep them in his custody.

(2.) WHILE challenging the petitioner's detention, learned counsel for the petitioner had argued that the detaining authority, that is, the State Govern ment, had taken into consideration such materials, which did not exist on the record upto-date on which the alleged satisfaction was recorded by it. It was further argued that there has been unreasonable delay in the consideration and disposal of the representation, which was made by the petitioner. Lewned counsel for the petitioner also argued that in view of the Proviso to Seation 3 of COFEPOSA incorporated in the said Act by virtue of Section 15 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, (hereinafter referred to as PITNDPS Act), the detention of the petitioner under an order passed under COFEPOSA was invalid.

(3.) THE learned Government Advocate placed reliance on paragraph 13 of the counter-affidavit filed on behalf of the State Government in this case by Sri Om Prakash Pandey, Deputy Secretary, Government of U. P. Con fidential Section 5, Lucknow. THE preposition in law, that if the person could be detained under PITNDPS Act on the same ground then he could not be detained on the same grounds under COFEPOSA, is not disputed in the said paragraph. However, the stand taken therein is, that object of detention of the petitioner is different as against the object for which the brother of the petitioner, Virendra Kumar, has been detained. THE learned Government Advocate states that whereas the object of detention, under Section 3 of the COFEPOSA was to prevent the petitioner from engaging in transporting, selling or smuggling the smuggled goods, the object of the detention of his brother, Virendra Rai, was to prevent him from engaging in the purchase, sale, possession and exporting the narcotic drugs, with the result that the two objects became clearly distinguishable. THE learned Government Advocate, therefore, contends that the bar imposed by Section 15 of PITNDPS Act would not be atrracted in this case.