Special Leave Petition Criminal No 2531 of 1989
From the Judgment and Order dated 299
1989 of the Bombay High Court in Criminal Writ Petition No 87 of 1989
UR Lalit and Mukul Mudgal for the Petitioner
Ashok H Desai Solicitor General Ashok Srivastava and Ms Sushma Suri for the Respondents
Syed Ali Raza Shafiq Mohammed was detained by an order of detention passed under Section 31 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Sub stances Act 1988 hereinafter referred to as the Act dated 191288 by the Secretary II to the Government of Maha rashtra Home Department
The detention order and the grounds of detention were given to the detenu on 20th Decem ber 1988
It may be mentioned that on 191288 the detenu was already in jail as his bail application had been reject ed
The wife of the detenu filed a writ petition before the Bombay High Court challenging the detention of her husband Syed Ali Raza Shafiq Mohammed
The Division Bench of the High Court dismissed the writ petition by order dated 29th September 1989
The wife of the detenu has now filed the present Special Leave Petition aggrieved against the Judg ment of the Bombay High Court
Learned counsel for the petitioner raised the following submissions before us 1 There were no prospects of the detenu being enlarged on bail as he was involved in a case under the Act where the offence was punishable with minimum sentence of ten years
The bail application filed on behalf of the detenu was rejected by the Metropolitan Magistrate and the detenu had not filed any application for bail either in the Sessions Court or in the High Court
2 That detention orders of Rai Chand Shah and Jai Lal Vora had already been struck down by the High Court on the 272 ground that the medical report in respect of the injury sustained by Rai Chand Shah was placed in a truncated form before the detaining authority
The detention order of the present detenu also suffers from the same vice and as such his order of detention should also be set aside
3 That a declaration was issued under Sec 10 1 of the Act on 20th January 1989 and the said declaration was served on the detenu after an unexplained delay of 21 days
4 The detenu submitted a representation on 31189 which was jointly addressed to the Government of Maharashtra and the Government of India and the Hon ble Advisory Board for revocation of the impugned order of detention
The State Government rejected the representation by its reply dated 21289 and the Central Government by its reply dated 3389
Thus there was an inordinate and unexplained delay in considering the said representations of the detenu and this violated the right of the detenu under article 225 of the Constitution of India
The order of detention is illegal on this count also
We shall deal with the above contentions seriatem
With regard to the first contention it was submitted by the learned counsel that the detenu was already in custody and his bail application had also been rejected and there was no likelihood of the detenu being released on bail in respect of the alleged offence under the Act where the minimum sentence of imprisonment was ten years
It was submitted that the mere possibility of his release on bail was not enough for preventive detention unless there was material to justify the apprehension that the detention would be neces sary in order to prevent him from engaging in illicit traf fic in narcotic drugs and psychotropic substances in case of his release on bail
A mere possibility of release on bail and a bald statement that the detenu would repeat his criminal activities was alone not sufficient to sustain the order of detention
It was further contended that the de taining authority did not apply its mind to this aspect of the matter that the detenu was already in custody and his bail application having been rejected there was no possibil ity of his being released on bail in a serious offence under the Act
Reliance in support of the above contention was placed on recent decisions of this Court in N Meera Rani vs Government of Tamil Nadu  Anr JT and Dharmendra Sugan Chand Chelwat
vs Union of India  Ors
  273 On the other hand LearnedSolicitor General contended that it would depend on the facts and circumstances of each case whether a detention order is to be passed or not in case of a person who was already in custody
An order of detention can be validly passed against a person in custody where the detaining authority was already aware of such facts and it is satisfied that the detenu is likely to be released from custody in the near future
The detaining authority can take into account the nature of the antecedent activities of the detenu in order to arrive to the conclu sion that it is likely mat after his release from custody he would indulge in criminal activities and it was necessary to detain him in order to prevent him from engaging in such activities in the present case there was complete awareness in the mind of the detaining authority about the detenu being in custody and that if he is released on bail he is likely to indulge in the criminal activities
The detaining authority was not only aware that the detenu was in jail but also noted the circumstances on the basis of which he was satisfied that the detenu was likely to come out on bail and continue to engage himself in the criminal activities
It was submitted that the High Court has considered this aspect of the case and has given detailed reasons for upholding the order of detention and there is no ground or justification for interfering in the order of the High Court
Reliance in support of the above contention was placed on San jeer Kumar Aggarwal vs Union of India  Ors JT We have given our thoughtful consideration to the argu ments advanced by Learned counsel for the parties on the above point
The latest decision of this Court on the above point is Sanjeev Kumar Aggarwal vs Union of India  Ors supra decided on 4th April 1990 in which all the earlier cases decided by this Court have been considered including the cases of N Meera Rani vs Dharmendra Sugan Chand Chelwat supra on which reliance has been placed by the Learned counsel for the petitioner
It was observed in Sanjeev Kumar Aggarwal s case that no decision of this court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circum stances
Therefore the facts and circumstances of each case have to be taken into consideration in the context of con sidering the order of detention in the case of a detenu who is already in jail
The counsel for the detenu in the above case strongly relied on Smt
Shashi Aggarwal vs State of UP  Ors JT and Ramesh Yadav vs District Magistrate Etah  Ors and contended that the bail application could be opposed if moved or if en larged the same can be questioned in a higher court and on that ground the detention order should be held to be 274 invalid
The Court negatived the above contention by observ ing that in N Meera Rani s case a Bench of three Judges noted the above observations in Smt
Shashi Aggarwal s case and Ramesh Yadav s case and it was said that they were made on the facts of those particular cases
The Court further held in the above case that on the material relied upon by the detaining authority it could not be said that there was no awareness in the mind of the detaining authority about the detenu being in custody and that if he is released on bail he is likely to indulge in the prejudicial activities
If we examine the facts of the case before us as stated in the grounds of detention it would be clear that on the basis of specific information officers of the Narcotics Control Bureau Bombay searched room No G 2 Purab Paschim Apartments Gilbert Hill Road Munshi Nagar Andheri West Bombay 58 and recovered 56 Kgs
650 gms
of Heroin 33 Kgs
150 gms
white and 23 kgs
500 gms
brown and 4000 Mandrax Tablets Methaeualone totally valued at Rs 1 1342000 on 211088
One Mr Syed Asgar Ali was found in the room
During the course of the search another person named Abdul Sattar Abdul Samad came on Motorcycle No BLC 7768 Make Hero Honda and entered into the premises
Thereafter two more persons came into the premises who gave their names as Ali Raza Shafiq Mohamed detenu in the present case and Thakur Singh
The Officers also searched and seized a Bajaj Scooter MAQ 169 the Motorcycle No BLC 7768 and Fiat Car No MMH 4348 which were parked in the compound of the said society
According to the present detenu the said three vehicles belonging to him were used for transportation of Narcotic Drugs
Telephone No 6288769 was found installed in the prem ises
It was subscribed by one Shirish Parikh K 18 Azad Nagar Society Juhu Scheme Road No 7 Bombay 56
The detenu disclosed that he was living in Flat No 15 4th Floor Chandra Co op
Housing Society Ltd Dawood Baug Andheri Bombay 58 which was also searched on 211088 but nothing incriminating was found in the flat
Telephone No 6284105 was found installed there which is subscribed by the detenu
The detenu also disclosed that he was having two shops i Ms Ali Decorators G I Parag Niketan 10th Road Juhu Bombay400 049 ii Ms Ali Decorators Shop No 9 A Wing Twin Tower Lokhandwala Complex Andheri West Bombay 58 both of which were searched on 211088 and some documents were seized from the former shop
Nothing was seized from the 2nd shop
275 The statements of the detenu were recorded on 211088 221088 and 71188 under Section 67 of the NDPS Act 1985
With regard to the statement given by the detenu on 211088 it was mentioned as under in the grounds of detention
In your statement of 211088 you inter alia stated that you have a business of Video Libraries and Marriage decora tions that you own the property and vehicles mentioned above that you were initiated into drug trafficking some time in 1984 by one Anwar owner of Anwar Star Petrol Pump Crawford Market that in the beginning you were employed as a delivery boy on a compensation of Rs30 per day that you used to deliver Heroin to customers on the road side that after sometime you started procuring Heroin from Pathans and repacking it in small packets and you used to store it in public toilets with the help of Municipal Sweepers and sell the same that you used to buy heroin for Rs 16000 to 20000 and sell it for RS
18000 to 25000 per Kg
that you were making a profit of Rs4000 to 5000 that your main selling points were Colaba and Nariman Point that there were a number of brokers hovering around the above places who contact the customers that you gave samples to brokers who showed them to the customers that if a sample was approved and the price agreeable then you used to ask the purchaser to meet you at some point in Juhu or Andheri or some other places that you used to pick up the required quantity of Heroin and deliver it to the customer and col lect the money that initially you were storing the Heroin in your flat and later on you used to store it in the said room No G2 Purab Aur Paschim Apartments Gilbert Hill Road Andheri W Bombay 58
As regards the source of the Heroin and Mandrax tablets you stated that you acquired 29 kgs
of white Hereoin in instalment from one Mangal Pandey of Banaras and the remaining white hereoin from one Raichand Chandmal Shah that 25 kgs
of Brown Heroin was purchased from one Asgar of Phulgalli Bhendi Bazar who has since died that you did not know the address of Mangal Pandey that you purchased the Heroin on credit that over the last about 312 years you must have sold 300 kgs
of Heroin that all the movable and immovable property acquired by you has been purchased from the profits from drug trafficking that your income from legal business 276 of Video library and decoration is about Rs2000 per month
 The statement recorded on 221088 as mentioned in the grounds of detention is reproduced as under In your next statement of 221088 you stated that because you had to make 3 4 trips to your native place and that was the reason why such a large quantity of heroin was lying with you that you were keeping one car and two wheeler because you required them for transportingselling of Man drax tablets and it is advisable to use different vehicles in this business you further stated that Abdul Sattar and your brother Syed Asghar Ali were not involved in this business and that they did not know that you are dealing in heroin they were present in the room where heroin was seized on 211088 because you had sent them to supervise masonry work The detaining authority further made the following observations in the grounds of detention You were arrested on 221088 and produced before the Additional Chief Metropolitan Magistrate Holiday Court on 231088 who remanded you to Judicial Custody till 41188 which was extended from time to time
You also filed appli cation for bail on 211188 which was rejected by the AddI Chief Metropolitan Magistrate 8th Court Bombay
It may be further important
to note that in the grounds of detention the detaining authority had noted that the other detenus Shri Raichand Shah and Sh
Jailal Keshavlal Vora were already released on bail on 181188 on furnishing a bail for an amount of Rs 150000 each in cash
After taking note of all the above circumstances the detaining authority made the following observations in respect of the detenu having a likelihood of being released on bail It is clear that there is a ring of traffickers in heroin and Mandrax tablets in Bombay and you are a part of the ring and you have been habitually engaging yourself in posses sion sale purchase transportation and storage of narcotic drugs and Psychotropic substances
1 am aware that you 277 are still in judicial custody but I am also aware that under the normal law of the land you may be granted bail and be in a position to continue to pursue your nefarious activities
I therefore consider it necessary to invoke the law of preventive detention and detain you under the PIINDPS Act 1988 to prevent you from indulging in such prejudicial activities in future
 Thus the material placed before the detaining authority and the facts mentioned in the grounds of detention clearly go to show that the detaining authority was fully aware that the bail application filed by the detenu had been rejected by the Additional Chief Metropolitan Magistrate 8th Court Bombay The detaining authority was also conscious of the fact that the two other detenus who were arrested and de tained in the same raid had already been released on bail
The antecedents of the detenu which were clear from his own statement went to show that he was initiated in drug traf ficking in 1984 and employed as a delivery boy on Rs30 per day Within a short span of four years the detenu himself started buying and selling Narcotic Drugs and amassed huge movable and immovable properties in Bombay
In the present raid itself heroin and Mandrax tablets worth Rs 1 1342000 were seized from the ownership and possession of the detenu
Not only that the detenu was using three vehicles for trans portation of these Narcotic drugs
The detaining authority after taking into consideration the above materials placed before him arrived to the conclusion that the detenu being in judicial custody may under the normal law of the land be granted bail and be in a position to continue to pursue his nefarious activities
The detaining authority in these circumstances considered it necessary to invoke the law of preventive detention under the Act to prevent the detenu from indulging in his prejudicial activities in future
In these circumstances it cannot be said that the order of detention was illegal on the ground that it was passed while the detenu was already in custody It was next contended on behalf of the petitioner that the detention orders of Rai Chand Chandmal Shah and Jai lal Keshavlal Vora had already been struck down by the High Court on the ground that the medical report in respect of the injury sustained by Rai Chand Shah was placed in a truncated form before the detaining authority
It was thus argued that the detention order of the present detenu also suffers from the same vice and as such his order of deten tion should also be set aside
278 We see no force in this  contention
We have perused the orders of the High Court quashing the detention orders of Rai Chand Shah and Jai Lal Vora
A perusal of the orders of the High Court shows that the basis for the detention orders of Rai Chand Shah and Jai Lal Vora were their confessional statements
It was alleged before the High Court that Rai Chand Shah was given a severe beating on account of which he sustained serious injuries and as such his alleged confes sional statement should not have been made a ground of detention
The High Court in this regard observed that the confessional statement of Rai Chand Shah being product of threats and injuries sustained by him and his medical report having been placed in truncated form before the detaining authority the certificate showing injuries in detail not having been placed before the detaining authority by the sponsoring authority the detention became invalid
Now so far as Jai Lal Keshav Lal Vora is concerned the High Court took the view that the statements of Rai Chand Shah formed integral and vital part of the grounds of detention of Jai Lal Vora and if such important and vital part of the materi al is obliterated and excluded it is not possible to say that the remaining material is ample and more than suffi cient to justify the detention of Jai Lal K Vora
The detention order of Jai Lal K Vora was also declared ille gal
Now so far as the case of the present detenu Syed Ali Raza Shafiq Mohd is concerned as already mentioned above his detention is based on entirely distinct and separate materials including his own confessional statements
The basis of the grounds of detention of the present detenu is not rounded on the truncated form of medical report of injuries sustained by Rai Chand Shah
At the most it can be considered as a supplementary kind of material for the detention order of the present detenu
Thus the present detenu cannot take advantage of any orders passed by the High Court declaring the detention orders of Rai Chand Shah and Jai Lal K Vora as illegal
It was next contended on behalf of the petitioner that though a declaration was issued under Sec
101 of the Act on 20th January 1989 but the same was served on the detenu on 10289 after an unexplained delay of 21 days
It was vehemently contended on behalf of the detenu that the detenu ought to have been served with the declaration as soon as may be after the issue of such declaration but ordinarily not later than 5 days and in case it was not done within five days then reasons ought to have been recorded in writ ing for explaining the delay and that also could not have been later than 15 days in any case
Learned Counsel in this regard submitted that under clause 5 of article 22 of the Constitution a right is guaranteed to the detenu to afford an earliest opportunity of making a representation against the order of 279 detention
It was contended that when the liberty of a citizen is taken away he ought to be afforded an opportunity of making representation at the earliest and the provisions contained in Sub Sec
3 of Sec
3 of the Act should in terms also apply in the case of communicating the declara tion issued under Sec
101 of the Act
We see no force in the above contention
So far as the provision of Sub Sec
3 of Sec
3 of the Act is concerned it clearly provides that for the purposes of clause 5 of article 22 of the Constitution the communication to a person detained in persuance of a detention order of the grounds on which the order has been made shah be made as soon as may be after the detention but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days from the date of detention
This provision thus relates to the commu nication of the grounds of detention
In the case before us the grounds of detention were admittedly communicated on 20th December 1988 while the detention order was of 191288 Thus there is full compliance of the above provi sion and the order of detention cannot be challenged on this ground
Now so far as the guarantee under Clause 5 of article 22 of the Constitution is concerned there can be no manner of doubt that the person detained under any law of preven tive detention ought to be communicated the grounds on which the order has been made so as to afford him the earliest opportunity of making a representation against the order
The detenu was served with the grounds of detention on 20th December 1988 and the detenu had full and ample opportunity to make a representation against the detention order
Sub Sec
1 of Sec
10 of the Act reads as under Notwithstanding anything contained in this Act any person including a foreigner in respect of whom an order of detention is made under this Act at any time before the 31st day of July 1990 may be detained without obtaining in accordance with the provisions of sub clause a of clause 4 of article 22 of the Constitution the opinion of an Advi sory Board for a period longer than three months but not exceeding six months from the date of his detention where the order of detention has been made against such person with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances and the Central Government or any officer of the Central Govern ment not below the rank of an Additional Secretary to that Government specially empowered for the 280 purposes of this section by that Government specially empowered for the purposes of this section by that Govern ment is satisfied that such person engages or is likely to engage in illicit traffic in narcotic drugs and psychotropic substances into out of through or within any area highly vulnerable to such illicit traffic and makes a declaration to that effect within five weeks of the detention of such person
 In the counter affidavit filed before this Court it has been stated in para L as under Regarding the declaration it may be stated that the same was dispatched by the Ministry of Finance on 2011989 to the Home Secretary Government of Maharashtra Bombay Maharashtra Government forwarded it to NCB Bombay which was received in the NCS office on 1289 from the State Govern ment
It was then sent for translation 4th and 5th Febru ary being holidays being Saturday and Sunday the declara tion was dispatched on 6289
It was received by the Jail authorities on 1021989 and served on the detenu same day
 Thus the declaration had been made in this case on 20189 by the Ministry of Finance within the statutory period of five weeks of the detention and the period taken in serving the same on the detenu on 10289 has been sufficiently explained
The detenu was lodged in Central Prison Bombay and the Advisory Board had fixed a date on 23289 and as such the detenu had ample opportunity to challenge the declaration
The High Court has also gone in detail in dealing with this aspect of the matter and we agree with the finding recorded by the High Court
The principle of five days and fifteen days as provided in Sub Section 3 of Section 3 relating to communication of grounds of detention cannot be applied in respect of declaration issued under Sec
101 of the Act
In the facts and circumstances of this case we are fully satisfied that the detenu has not been denied any opportunity of making any effective repre sentation against the declaration issued under Sec
101 of the Act
The last submission made on behalf of the detenu is that the detenu had submitted a representation on 31189 jointly addressed to the Government of Maharashtra the Government of India and the Advisory Board
The State Government re jected the representation 281 by its reply dated 21289 and the Central Government by its reply dated 3389
It was thus contended that there was an inordinate and unexplained delay in considering the said representations and this is violative of the right of the detenu conferred under Clause 5 of article 22 of the Consti tution The point should not detain us any longer as we fully agree with the finding of the High Court recorded in this regard
The High Court has given adequate and detailed reasons in holding that the delay has been explained by the counter affidavit filed by the respondents
Thus we find no force in this ground of the detenu that his representations were disposed of after an inordinate and unexplained delay
As a result of the above discussion we find no force in this petition and it is accordingly dismissed
Petition dismissed


Summary:
The appellant in the civil appeal was an Assistant Public Prosecutor Grade I in the State of Kerala
The writ petition under Article 32 of the Constitution has been filed by the Uttar Pradesh Public Prosecutors  Association con sisting of the membership of Assistant Public Prosecuters including Prosecuting Officers senior Prosecuting Officers Deputy Director of Prosecution serving under the Government of Uttar Pradesh
In both the cases the controversy raised is that there exists a regular cadre of Prosecuting Officers and as such the State Government is bound to appoint Public Prosecutors and Additional Public Prosecutors only from among the persons constituting such cadre in view of section 246 of the Code of Criminal Procedure 1973 as amended by the Criminal Procedure Code Amendment Act of 1978
The appellant s writ petition filed in the High Court of Kerala was dismissed
The High Court was of the view that the provisions of sub section 6 of section 24 could have application in respect of States where there was a regular cadre consisting of hierarchy of Prosecuting Officers with the Assistant Public Prosecutor at he lowest rung and having at the top level Additional Public Prosecutors and Public Prosecutors
The High Court held that there was no regular cadre of Prosecuting Officers in the State of Kerala Com prising therein Public Prosecutors and Additional Public Prosecutors
The High Court further observed that under the Kerala Government Law Officers Appointment and Conditions of Service and Conduct of Cases Rules 1978 the posts of Public Prosecutors and Additional Public Prosecutors were tenure posts and as such the Assistant Public Prosecutors who were regular hands could not be appointed to the tenure posts
320 Before this Court it was contended on behalf of the appellant petitioners that Assistant Public Prosecutors Grade I and Grade II together constituted a cadre of Prose cuting Officers so as to attract the applicability of sub section 6 of section 24 of the Code
It was urged that in case the meaning to the expression regular cadre of Prose cuting Officers under sub section 6 of section 24 was given as to consist of a regular cadre of Prosecuting Offi cers going upto Public Prosecutor at the top then there was no benefit to such persons by enacting sub sections 6 and 9 in section 24 by the Amending Act of 1978
It was further urged that there was no bar for appointment of Assistant Public Prosecutors against tenure posts as offi cers on deputation
The State of UP in its counter has brought out the distinction in these two kinds of posts in the manner and terms of their appointment discharge of duties emoluments etc
It was further urged that in Uttar Pradesh there was no regular cadre of Prosecuting Officers within the meaning of section 246 of the Code of Criminal Procedure and as such the petitioners were not entitled to appointment as Public Prosecutors or Additional Public Prosecutors
Dismissing the appeal and the writ petition this Court HELD 1 The intention of introducing sub section 6 and the deeming fiction in sub section 9 was in order to safeguard the promotional rights of Prosecuting Officers in such of the States where there was already in existence a regular cadre consisting of a hierarchy of Prosecuting Officers going to the top level of Additional Public Prose cutors and Public Prosecutors
334E F 2 The Kerala High Court was right in taking the view that the expression regular cadre of Prosecuting Officers comprised a service with Assistant Public Prosecutor at the lowest level and Public Prosecutors at the top
In case a regular cadre of Prosecuting Officers did not go upto Public Prosecutor at the top the State Government could not be considered as bound to appoint Public Prosecutor or Addi tional Public Prosecutor only from among the persons consti tuting such cadre under the Code of Criminal Procedure for conducting cases in the Sessions Court
334G H 3 It was within the competence of the State Government to keep such posts of Public Prosecutor and Additional Public Prosecutor as tenure posts for some period based on contract and not to make such 321 posts as regular or permanent under any service rule
In this view of the matter till such posts were tenure posts to be filled on contract basis for some period the Assist ant Public Prosecutors who were members of a regular service could not claim any right to be appointed on such posts under sub section 6 of section 24 of the Code of Criminal Procedure
33SA C 4 The contention of the petitioners that Assistant Public Prosecutors can be appointed on such tenure posts on deputation and may return back to their parent service after completion of the period of such tenure posts was not acceptable
335C