SANJAY SHIVKUMAR SOOD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE point that arises for consideration and decision in this petition filed under Article 226 of the Constitution of India, challenging the order dated 26th of May 1995 made by the Principal Secretary to the Government of Maharashtra, Home Department (Preventive Detention) and Detaining Authority, respondent No. 2, under the provisions of sub-section (1) of section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as "the Act" for the sake of brevity) placing one Shivkumar Shivramdas Sood under preventive detention is "can a person be detained in custody under the preventive detention laws without the detaining authority recording a satisfaction in the detention order itself that the person concerned is likely to indulge in prejudicial activities in future if not detained in custody. " The order impugned is at Annexure A to the petition. The order is accompanied by a communication dated 26th May 1995 addressed to the said Shivkumar Shivramdas Sood (hereinafter referred to as "the detenu" ). The petitioner claims to be the son of the said detenu. The communication dated 26th May 1995, which is at Annexure B to the petition, contains the grounds and reasons for making the order of detention at Annexure A. The order at Annexure A, after receipt of the report from the Advisory Board, was confirmed by the respondent No. 1 - State by its order dated 17th of August 1995 in exercise of its powers under Clause (f) of section 9 of the Act. The period of detention of the detenu was to be one year from 28th May 1995. Thus, when the matter was called out for final hearing, the period of detention was already over. However, Court took up the matter for final hearing on merits in view of the fact that by an order dated 18th August 1995 of the Competent Authority under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act") made under sub-section (2) of section 68-F of the NDPS Act, the properties of the detenu were freezed. The order dated 18th August 1995 under sub-section (2) of section 68-F of the NDPS Act has been made by the Competent Authority on the basis of the order of detention and, therefore, the petition challenging the detention order has to be heard on merits and decided, though the period of detention of the detenu is over.

(2.) PERUSAL of the order of detention at Annexure A to the petition shows that it has been made by respondent No. 2 to prevent the detenu from engaging in illicit traffic in psychotropic substances. The grounds of detention at Annexure B show that on information received by the officers of the Narcotic Cell, Andheri Unit, Bombay, a trap was laid by the officers of the Andheri Unit of the Narcotics Cell, Bombay. It is further alleged that on 14-11-1994 the raiding party found the detenu in possession of two small transparent polythene packets containing light grey coloured tablets with a swastik on one side and letter N on the other side. It is further stated that the tablets from both the packets were tested on the field identification kit separately and the result was positive for Methaqualone, a psychotropic substance used in the manufacture of Mandrax tablets. It is further stated that the detenu himself stated in a statement that he made during the interrogation voluntarily that he had a factory at Mohilli Village, Saki Naka Pipe Line, Bombay, where he manufactured Mandrax tablets from Methaqualone powder. The factory was also searched by the officers on 14-11-1994 where they found that one Virendra Sood was taking out a tray from the dryer for manufacturing Mandrax tablets. During the search, implements and machines used for manufacture of Mandrax tablets were also seized. The statements of the detenu, according to the grounds of detention at Annexure B, were recorded on 14-11-1994, 16-11-1994, 18-11-1994 and 21-11-1994. It is further stated that in the statement made during investigation, the detenu stated that in the month of May 1994, one Shamim Qureshi requested the detenu to set up a unit for manufacturing Mandrax tablets for which the said Shamim would make investment and the tablets would be exported to South Africa. According to the grounds of detention, it was further stated by the detenu during investigation that the said Shamim and one Anis also undertook to supply Methaqualone powder to the detenu for making the Mandrax tablets. It is further stated that the detenu was paid an amount of Rs. 6 lakhs for the job. The grounds of detention at Annexure B also detail the statements made during investigation by Virendrakumar Omprakash Sood. It is further stated that the statements of one Deepak Shivkumar Sood were recorded by the authorities during investigation on 18-11-1994 and 19-11-1994. According to the grounds of detention, the said Deepak Sood in his statement stated that he along with his mother Smt. Brijmohini were assisting the detenu in the manufacture and sale of Mandrax tablets. The statement of Smt. Brijmohini, the wife of the detenu, was recorded on 18-11-1994 and according to the grounds, in her statement she also stated that she used to assist the detenu in the work of manufacture and sale of Mandrax tablets. In the grounds it is further stated that the statements of one Mohd. Ibrahim were recorded on 22-11-1994, 23-11-1994 and 29- 11-1994 wherein the said Mohd. Ibrahim stated that he was assisting the detenu in drug peddling and he was being paid commission by the detenu for the work done. It is further stated in the grounds that the detenue was arrested on 14-11-1994 and was produced before the Special Court for Greater Bombay. Initially the Court remanded the detenu to police custody and thereafter to judicial custody. It is further stated that along with the detenu, Virendra Sood, Sadguru Sugraj Sharma, Deepak Sood and Smt. Brijmohini Sood were also arrested and they were also placed in custody. It is further stated that Deepak Sood and Smt. Brijmohini Sood moved an application for bail before the Sessions Court which released Smt. Brijmohini Sood on bail on 23-12-1994. However, the bail application of Deepak Sood was rejected by the Court. He, however, moved this Court and this Court released him on bail by order dated 6-1-1995. Mohd. Ibrahim who was also arrested on 22-11-1994 in the same action was also released on bail by the Sessions Court by order dated 26-12-1994. In paragraph 33 of the grounds it is stated that respondent No. 2 is satisfied that it is necessary to detain the detenu under the provisions of the Act to prevent him from engaging in illicit traffic in psychotropic substances.

(3.) IN the petition, the detention order at Annexure A has been challenged on several grounds. However, at the hearing of the petition, only one ground was raised on behalf of the petitioner. The submission of the learned Counsel for the petitioner is that "satisfaction to the effect that the detenu was likely to indulge in prejudicial activities in future and if not detained, he will continue to do so - not having been recorded. Order bad. " Thus it is the submission of the petitioner that in the grounds accompanying the detention order, the Detaining Authority has not recorded a satisfaction that the detenu is likely to engage himself in the illicit traffic in psychotropic substances in future, if he is not detained in custody has not been recorded and therefore in the absence of such a satisfaction being recorded in the order, the order is vitiated. In the submission of the petitioner, recording of such a satisfaction is a sine qua non for making an order of preventive detention. The learned Counsel for the petitioner contended that this ground has been specifically raised in the petition. Perusal of Ground No. (v) in the petition shows that it is the contention of the petitioner that the Detaining Authority has nowhere in the grounds of detention recorded his satisfaction that the detenu was likely to engage in illicit traffic in psychotropic substances in future and will continue to do so unless the detenu was prevented from doing so by making an order of preventive detention. It is the contention of the petitioner that in the absence of such a satisfaction being recorded in the grounds of detention, the Detaining Authority could not have at all invoked his extraordinary power of preventively detaining the detenu. Perusal of the return filed on behalf of respondent No. 2 shows that, according to respondent No. 2, the observation in paragraph 33 of the grounds of detention to the effect that he is satisfied that it is necessary to detain the detenu under the provisions of the Act to prevent him from engaging in illicit traffic in psychotropic substances amounts to recording the satisfaction that the detenu is likely to indulge in the same activities in future if he is not placed under detention.