BIRENDRA KUMAR RAI Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has challenged his detention under S. 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic substances Act, 1988 (hereinafter referred to as 1988 Act). The matter was earlier heard by a Bench of two-Judges when one of the Hon'ble Judges while interpreting Ss.3 and 5 of the Act held the impugned detention order illegal while the other Hon'ble Judge upheld the detention order. The petitioner's contention was that since the impugned order was passed by the Joint Secretary of the central Government and not by the Central Government and under S. 5(a) the place of detention could only be specified by the "appropriate Government" viz. the Central Government and not by its officer thus order by the Joint secretary is illegal and void. The matter was referred to the third Hon'ble Judge who felt it appropriate that the matter be heard by a Full Bench and the Hon'ble the Chief Justice thereafter constituted this Full Bench. Since the whole case was referred and not the joint, the petition is being heard on all the points raised by the petitioner and not confined to the point of difference.

(2.) The petitioner was arrested by Zamania Police on 21/11/1990, in connection with Case Crime No. 402 of 1990 under S. 25 of the Arms Act and S. 207 of the Motor Vehicles Act. While he was detained in District Jail, Ghazipur, he was served on 10/12/1990, with the detention order dated 4/12/1990, issued by the respondent No.2, Joint Secretary to the Government of India, Ministry of Finance, under S. 3(1) of the Act. The petitioner made a representation both to the State and the Central Government through the Jail Superintendent, District Jail, Ghazipur on 22/12/1990. The petitioner stated though the State Government rejected the same but the same has not yet been disposed of by the Central Government.

(3.) The case of the respondent is that secret informations were received from time to time by the officers of Varanasi and Delhi units of Narcotic control Bureau official (hereinafter referred to as NCB) regarding Sri Shanti Swaroop and Sri. A. K. Chaudhary (P.P. Singh). The Officers were made vigilant at Terminal-2 of the IGI Airport, New Delhi on the night of 12/ 13/08/1990.When the aforesaid persons reported for boarding flight No. K.L. 836 to Amsterdam and when they just crossed the immigration Check, their baggage was examined. It was found that P. P. Singh was travelling in the false name of A. K. Chaudhary and was found to possess 975 gms. of heroin concealed in the false bottom of his shoulder bag. Nothing was recovered from the baggage of Shanti Swaroop. A Panchayatnama was prepared on the spot and recovered, heroin was seized under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 1985 Act). Consequent upon this, statements were recorded under S. 67 of the 1985 Act. They were placed under arrest on 13/08/1990, at 6.00 p.m. for having committed offences under Ss. 21, 23 and 28 of the 1985 Act. They were produced before the Duty Magistrate on 14/08/1990, who remanded them to judicial custody till 28/08/1990. On the basis of disclosure from the statements of the aforesaid two person's follow up operations and Search was conducted both at petitioner's house at Varanasi and his flat at Bombay, which resulted into recovery of 855.250 gms. of foreign marked gold from the Varanasi house. According to the statement of Sri P. P. Singh he is doing business of assisting in passport making and on the date of his arrest he was to go to London via Amsterdam when he was intercepted by the NCB officers. On the search of the aforesaid shoulder bag recovery of two black polythene packets was made and on opening they were found to contain white powder, which was heroin and the same was said to have been given by the person accompanying him (Shanti Swarup). He knew Sri Shanti Swaroop for the last more than five years and has been visiting his (Shanti Swarup's) Veer Studio almost daily. It is he who got the passport prepared in the false name of Ashwani Kumar Choudhry. The case of the respondents further is that on 25/07/1990, Sri P. P. Singh along with Shanti Swarup met the petitioner at mini house flat where discussion was made how the heroin was to be carried and since it was not ready at that time no conclusion could be arrived at. Thereafter, on 26th July P. P. Singh came to Delhi and confirmed his and Shanti Swamp's ticket for 13/08/1990, on the aforesaid KLM flight and on the 7th August he along with Shanit Swarup met the petitioner at his Varanasi house where the petitioner handed over the heroin to P. P. Singh in two polythene packets. On 1/08/1990, they started from Varanasi by Kashi Vishwanath Express and reached Delhi thereafter and stayed at Bright Hotel, Room No.15, where the heroin was repacked and placed at the bottom of the hand bag. The said two persons reached the aforesaid New Delhi IGI Airport at about 11 p.m. One of the chits recovered from Sri P.P. Singh bore some telephone number of one Mr. Sharma which was given to P. P. Singh by Shanti Swarup. This was Bombay contact number and on reaching London he was to phone the said Mr. Sharma, who, in turn, would have given the description of the person to whom the drug was to be delivered. Another chit recovered also bore number of one Hem Chand of America, who had met P. P. Singh on the last occasion at the aforesaid Bright Hotel. Earlier, in 1988 both went to France and carried 130 gms. of heroin, out of which 30 gms. were given to Reland Montoux, whose full address was known to Shanti Swarup, and the rest 100 gms. were given to J.P. Collins. Payments were made by the aforesaid two persons. Next in 1989 both P.P. Singh and Shanti Swarup went to Venice via Frankfurt where wife of the said Sharma was given 30 gms. Stuff and the said two persons carried 200 gms. of heroin each in their shoes. On that occasion Sri Shanti Swanrp phoned the petitioner in Bombay and the petitioner in turn sent second party in the hotel where they stayed and paid them 16000 pounds. On both the occasions, SR Shanti Swarup procured heroin from the petitioner and Sri P. P. Singh was also paid money for doing the said job. On the earlier occasion, Sri P. P. Singh travelled on his actual passport, which since thereafter was lost. On further interrogation he narrated he had another passport issued in the name of Ram Shanker Singh, but till then he had not travelled on that passport. Similarly, in his statement Sri Shanti Swarup stated that he was a photographer and was running Veer Studio. The heroin, which was seized at the airport on 12th/ 13/08/1990, was procurred by him from his friend Virendra Rai (petitioner). Earlier, they were to travel outside on the 14th July for the said work, but since heroin was not made available by the petitioner it was deferred. On 4th August he met the petitioner and thereafter on 6th August he informed the petitioner that their tickets were confirmed and on petitioner's invitation both received the said heroin at petitioner's residence at ; Varanasi in the morning of 7th August. Earlier, and on 10th July petitioner gave Rs.70,000.00 to Sri Shanti Swarup for the expenses. On the 7th August the petitioner further gave one telephone number of Bombay of Mr. Sharma (Dilip Kumar Sharma). They were to contact Mr. Sharma from London and Mr. Sharma would tell them the code of the party who would receive the heroin and the party was to travel from Paris to London. They were to be paid 40,000 dollars for the said heroin.