RAIS KHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) This Habeas Corpus Petition has been filed by Rais Khan, brother of detenu - Shafi Mohammed, who has been detained under the provisions of Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act, 1988 (for brevity, the Act of 1988), with the prayer that respondents be directed to released him from the same.

(2.) Briefly stated, a preventive party, while on patrol duty, on March 22,1991, at Kota - Bundi Road was checking vehicles, during which they stopped a truck bearing No. MKM 1636, at about 12 Oclock in the noon, which was coming from Kota. On enquiry, it was found that detenu Shafi Mohammed, Babu Bhai and Bhagwan Singh were travelling in the truck. After interrogation and search, a cement bag, lying in the tool-box behind the seat of the driver, was found. Upon opening it, eight black and three blue coloured rexine bags were found. When these rexine bags were opened, in the presence of independent witnesses, polythene bags were found, containing some black substance. When tested and smelt, the substance was found to be opium. The opium was weighed and found to be 27.800 Kgs. net The detenu alongwith two other persons; named above, were arrested under section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act of 1985T) and the opium seized along with the truck were taken into Government custody and panchnama was prepared on the spot. Out of the seized opium, two samples of 24gms, each were drawn and sealed and thereafter, the same were sent for chemical analysis. The report of the chemical examiner revealed that the samples drawn from the opium were found to be within the meaning of opium under section 2(xv) of the Act, 1985. The detenu moved an application for bail before the Court of the learned Sessions Judge, Kota, but the same was rejected on April 27, 1991. Thereafter, another bail application was filed in the High Court under the provisions of section 439, Cr.P.C., which was also dismissed, on August 30, 1991. While in custody, order dated August 27, 1991 (Annexure. 1) was served upon the detenu and by exercising powers under section 3(1) of the Act of 1988, he was ordered to be detained and kept in custody of District Jail, Kota. While passing the abovementioned detention order, grounds of detention (Annexure. IA) alongwith some documents were supplied to him, which were relied upon by the detaining authority. A representation (Annexure. 2) against the order of detention was sent to the President of India, under Registered Post, on October 10, 1991. Vide letter dated October 30, 1991 (Annexure. 4), he was informed that the same has been rejected by the Central Government. On November 1, 1991, the detenu was produced before the Advisory Board, where he presented a memo of appeal to the Board. On November 29, 1991, a communication was received from the Board, conveying him rejection of his appeal/representation.

(3.) It is submitted by Mr. S.S. Hasan, learned counsel, that the order of detention has been passed for one year (from 7-9-1991 to 6-9-1992). It is further submitted that the detention order was passed after a long delay of five months. The detenu was arrested on March 22, 1991, and detention order was passed only on August 27, 1991. This, according to the learned counsel, vitiates the detention. It is submitted by Mr. Praveen Balwada, learned counsel that there has been no delay and the position has been fully explained in the return filed on behalf of the respondents. Keeping in view the large quantity of opium seized and detenu being habitual offender, the case was examined in detail and, after careful consideration, a proposal for detaining him under the provisions of the Act, 1988, was sent to the Commissioner, Narcotic, Headquarters at Gwalior vide letter dated June 11, 1991. He, after careful consideration, forwarded it to the Ministry of Finance, Department of Revenue, New Delhi and the Ministry, after careful consideration, issued the detention order and the grounds of detention vide letter dated August 27, 1991, which was received in the Office of the Narcotic Commissioner, Gwalior on September 6, 1991.