GANI KHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner through his elder brother Shri Mohammed Hanif has challenged the correctness and validity of his detention order: dated 12.8. 1991 (Annex. 22) passed under section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act, 1988 (in short PITNDPS Act) as well as the order of confirmation dated 27.1.1992 (Annex. 25) passed] under section 9(f) of the said Act directing his detention for a period of one year from the date of his detention i.e. 15.11.1991 and prayed that the said orders be quashed and he be ordered to be set at liberty.

(2.) Briefly, the grounds on which the impugned detention has been made are that on 9.3.1991, acting on a specific information the officers by the Narcotics Control Bureau, Jodhpur Zonal Unit, searched the rented house/work-shop of one Shri Babu Lal Suthar situated in Arya Nagar, near Badla, out-side 3rd Pole, Mahamandir, Jodhpur and recovered two polythene bags containing 42 packets of black coloured material. Out of those packets 20 packets bore the marking of Lion and 22 packets hast the marking of Scorpion brands. The said material was tested with the help of drug testing kit and was prima facie found to be Tcharas. During the said search Shri Babu Lal Suthar owner of the work-shop and his servant Shri Moola Ram Suthar were also present. Shri Moola Ram disclosed that the said recovered polythene bags were kept in the underground of the said premises by one Shri Alfoodin son of Shri Subhan Ji Ghoshi resident of Mansagar, Mahamandir, Jodhpur at about 4 a.m. on 9.3.1991. The recovered charas weighed 42.060 Kg. and was seized under the Narcotic Drugs & Psychotropic & Substances Act, 1985 (in short NDPS Act, 1985) and the recovery memo in presence of two motbirs was drawn on the spot. Representative samples of 25 gms each were drawn from the two different lots of TLion &, ScorpionT brands seized charas for chemical analysis. 0n9.3.1991 said Babu Lal Sutharin his statement recorded under section 67 of the NDPS Act, 1985 admitted the said recovery, but denied having knowledge or connection with the seized Tcharas. However, in his further statement dated 10.3.1991, he identified Alfoodin Ghoshi from his photograph as his friend. Moola Ram Suthar in his statement dated 9.3.199 1 said that those two polythene bags were kept by Alfoodin Ghoshi at about 4 a.m. on 9.3.1991 and that he had told him that the said polytoene bags contained some books. On 9.3.1991 the residential premises of Alfoodin Gnoshi were also searched. His statement was recorded on 9.3.1991 & 10.3.1992, wherein he admitted about the ownership of the consignment of the charasT. He further admitted that he had secreted the said charas in the underground premises of Babu Lal Suthar. He disclosed that the said charas was purchased by him petitioner Gani Khan at the rate of Rs. 1,200/- per Kilogram. He further disclosed that he had personally gone to Pokharan on 8.3.1991, where the petitioner was running a shop under the name & style of M/s. Janta Electric Works and that the petitioner had agreed to supply his charasT at the price of Rs. 1,200/- per Kilogram for delivery at Jodhpur. Alfoodin further disclosed that he had given Rs. 27,000/- as advance to the petitioner and told him to deliver the charas in the night intervening 8th & 9th March, 1991 at Jodhpur at a pre-decided place near Badia, out-side 3rd Pole, Mahamandir, Jodhpur. He also stated that in the early morning of 9.3.1991 at about 3 a.m., petitioner in Mahindra Jeep bearing registered No. RST 4780 came at the aforementioned predecided place and gave him 42 packets of charas in two polythene bags and that, thereafter, the said charas was secreted by him in the under-ground of the rented premises of 8abu Lal Suthar. On 10.3.1991, Alfoodin was arrested and produced before the Magistrate, who remanded him to judicial custody. On 18.3.1991, Shri Ram Narain Gandhi in his statement recorded under section 67 of the NDPS Act, 1985 inter alia stated that he was owner of Mahindra Jeep No. RST 4780, that on his direction, his driver Shri Mehardin had handed over the said vehicle to the petitioner on 8.3.1991 at 7.30 p.m. and that on 9.3.1991 at about 8 a.m., the petitioner had handed over the said vehicle back to Shri Mehardin, driver. He further stated that the petitioner had gone to Jodhpur in the said vehicle and transported some goods to Jodhpur and that he knew that the petitioner was indulging in smuggling of heroin, charas & opium. The chemical test report dated 19.4.1991 received from Government Opium & Alkolide Works, Neemach confirmed that the contents of the representative samples, after chemical analysis were found to be those of charas. It is alleged that on 10.3.1991, Gani Khan was not available at his residential premises and that summons dated 21.3.1991 for his appearance before the Intelligence Officer, N.C.B., Jodhpur on 1.4.1991 was sent vide registered post A.D., which was duly acknowledged by some body of the petitioners house, but he did not care to comply with the directions. Again summons dated 18.4.1991 were despatched to the petitioner through registered post A.D., which were received back undelivered with the remark that the addressee had left Pokharan without leaving any address. Third time summons of the petitioner were delivered personally to his father Shri Haji Mangal Khan on 26.5.199 1 for petitioner's appearance before Superintendent, N.C.B., Jodhpur on 7.6.1991, but he failed to appear. It is alleged that on 7.4.199 1, the petitioner filed an anticipatory bail application in the court of Sessions Judge, Jodhpur, which was dismissed by the court on 9.7.1991. After investigation a criminal complaint was filed against Alfoodin under the NDPS Act, 1985 in the court of competent jurisdiction. The sponsoring authority sent all the relevant material to the Ministry of Finance, Department of Revenue, Government of India. The Joint Secretary to the Government of India (respondent No. 2) after having his subjective satisfaction that the petitioner Gani Khan engaged himself in sale and purchase of narcotic drugs and if not prevented, he will continue in indulging in the illicit traffic in narcotic drugs and that there existed compelling necessity, in view of the likelihood of petitioner being released on bail under normal law and his indulging in the illicit traffic of narcotic drugs, passed the impugned detention order dated 12.8.1991 (Armex. 22). It is alleged that the petitioner had gone underground and was absconding. However, on 15.11.1991 he was arrested by the police p8lty of Police Station, Nachana for the alleged smuggling of822 bottles of contraband liquor without licence under the Rajasthan Excise Act and was produced before the Magistrate, who remanded him to judicial custody. Thereupon on 15.11.1991, the order of detention.(Armex. 22) along with the grounds of detention (Armex. 23) was served on the petitioner in the jail. The detenu made a representation (Armex. 24) against the detention on 21.12.191, which was rejected by the respondents by order dated 23.1.1992 Armex. X. The case of detenue Gani Khan was also placed before the Advisory Board, which confirmed the detentions order and the respondent No. 3 by-his order dated 27.1.1992 (Armex. 25) passed under section 9(f) Of the PITNDPS Act, 1988 confirmed the detention order and directed that the detenue be detained for a period of one year from the date of his detention i.e. from 15.11.1991. Hence this writ petition.

(3.) It may be mentioned here that this court vide its order dated 4.5.1992 had granted temporary release of detenue Gani Khan and he remained on parole from 6.5 .1992 to 10.8.1992 and hence after expiry of the period of one year from the date of his detention w.e.f. 15.11.1991, he is still under detention due to the extended period of detention caused by the parole.