NARENDER KUMAR RAI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) 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; hereinafter referred to as COFEPOSA, in pursuance of the order dated 18th December, 1990 issued by the State Government against him. Briefly stated, the ground's of detention served on the petitioner allege that one Abani Kumar Chaudhary and his associate Shanti Swanip 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 Ute 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, Varnasi. Both, the, above mentioned persons further revealed that the recovered heroin was given to him by Virendra Rai from his residence. Thereafter, the ground went on to say that Birdopur house of Yirendra Rai was raided on 13th August, 1990 where he resided along with 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 matter of the double bed in the said room, seven gold biscuits of foreign origin were recovered from a polythene bag. The recovered biscuits weight 855.250 grams valued Rs. 2,92,495.50. No valid document for 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 1983-84, from which business they were having good income The petitioner's brother, Virendra Rai, started the business of manufacturing heroin and fromarning and. sale of heroin enough money was with the result that a flat in Bombay was purchased by the petitioner's brother, Virendra Rai, who started manufacturing heroin in Bombay itself. The petitioner further told the Officers of the Bureau that he and his bother 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 of land in Yarnnasi. He also disclosed that once his brother was apprehended in Bombay on 19.5.1986 along with the instruments for manufacturing heroin. The said matter was still pending in Court. The petitioner further disclosed that after stopping the business of heroin for some time, his brother. Virendra Rai, again started the business of heroin and stand 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 Minta:-House Colony,Varanasi and some land near Kashi Vidhyapeeth, Varariasi and some other properties were- also purchased by them. The petitioner further admitted. That about two years prior the said incident, he and his elder brother, Virendra Rai, manufactured heroin and from sale of that heroin, the recovered gold biscuits had been purchased. The petitioner further revealed that his brother, Virendra Rai, had given these biscuits to him keep them in his custody.

(2.) While challenging the petitioners detention, learned Counsel for the petitioner, had argued that the detaining authority that is the State Government, had taken into consideration such materials, which did not exist on the record up to date on which the allowed 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. Learned Counsel for the petitioner also argued that in view of the proviso to section 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 on order passed under COFEPOSA was invalid.

(3.) We have heard learned Counsel for the parties. We are not impressed with the first and second points, which have been raised by the learned Counsel for the petitioner as has been mentioned above. However, since we find considerable force in the submission of the learned Counsel for the petitioner on the third point, we are not considering the merits in respect of the first two points raised by the learned Counsel for the petitioner.