(1.) THE Secretary (Prevention of Detention) to the Government of Maharashtra, Home Department and Detaining Authority by order dated February 27, 1989 passed in exercise of powers conferred under sub-section (1) of section 3 of the Prevention of lllicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 directed the detention of the petitioner with a view to preventing him from engaging in export from India of Narcotic drugs. The grounds were furnished to the detenu on the same day. The grounds, inter alia, recite that in the night of September 26/27, 1988, the detenu was intercepted by the Customs Intelligence Officers at Sahar Airport when he was attempting to board Ethiopian Airways Flight No. ET. 611. The baggage and person of the detenu was searched and the suit-case was found to have a false lining made of card board and when the same was ripped open, the Custom Officers recovered four plastic bags containing brown coloured powder weighing 36 Kilograms. The Heroin seized valued at Rs. 7,20,000/- at the illcit market.
(2.) THE statement of the petitioner was recorded under section 108 of the Customs Act, 1962 and the detenu admitted that he had visited India twice, first on August 3, 1988 and thereafter on September 23, 1988. The detenu is a foreign national and stated that he had arrived on both occasions to Bombay solely for the purpose of purchasing narcotic. On first visit, he could not found narcotic seller and, therefore, went back on August 9, 1988. After a month, he returned back and contacted one Abdul who gave him sample of heroine which was proposed to be supplied. The detenu claimed that he knew how to test heroine and found that the sample supplied was genuine and thereupon asked him to supply four kilograms of brown sugar at the United States Dollar 13 per gram and, accordingly, gave Abdul 12,000 U. S. Dollars. From this statement, the Detaining Authority came to the conclusion that the detenu was an experienced hand in narcotic business. The Detaining Authority further observed in the grounds that the detenue is still in judicial custody but in accordance with normal laws of the land, it is possible that he may be released on bail and placed in a position to peruse nefarious activities. The Detaining Authority was satisfied that the detenue is likely to indulge in activities in future and thereupon passed the order of detention which is under challenge.
(3.) SHRI Kotwal, learned Counsel appearing on behalf of the detenu has raised four or five contentions to challenge the legality of the order. The first submission of the learned Counsel is that the order of detention is passed in mechanical fashion ignoring the fact that on the date of the passing of the order i. e. on February 27, 1989 the detenue was in custody and his two bail applications were rejected by the Magistrate. The learned Counsel urged that it was not proper to resort to the powers of preventive detention when the detenu was already in custody and bail was refused. The learned Counsel relied upon the decision reported in A. I. R. 1989 Supreme Court 2027 (N. Meera Rani v. Government of Tamil Nadu) and also on the decision reported in A. I. R. 1986 Supreme Court 2090 (Binod Singh v. District Magistrate, Dhanbad, Bihar) In the first case, the Supreme Court observed that subsisting custody of the detenu by itself does not invalidate an order of preventive detention and the decision must be taken on the facts of the particular case. Ordinarily, it is not needed when the detenu is already in custody, the Detaining Authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but, even so, if the Detaining Authority is reasonably satisfied on cogent material that there is likelihood of release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made. In the other decision of the Supreme Court, it was observed that if a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. It was further observed that if there are cogent materials for thinking that the detenu might be released, then the power can be resorted. The learned Counsel also invited our attention to the judgment of the Supreme Court dated February 9, 1990 in Criminal Appeals Nos. 11 and 12 of 1990. The Supreme Court, after reviewing the earlier decisions, observed in Paragraph 20 of the judgment. :