Sayed Abul Ala vs Union Of India & Ors

1.Appellant herein was detained under the Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act,1988 (hereinafter referred to as the `Act') by an order dated 15th February, 2000. The period of detention is over. He, however, questioned the validity of the said order of detention before the High Court of Delhi inter alia on the premise that unless the order of detention is set aside, a proceeding may be initiated against him under Chapter VA of Narcotic Drugs and Psychotropic Substances Act, 1985.

2. Appellant was indisputably arrested by the officers of Narcotic Control Bureau (NCB) on 29.11.1999. He was remanded to NCB custody till 8.12.1999, whereafter when he was remanded to judicial custody. Eighteen kilos and eight hundred thirty grams of heroin was alleged to have been recovered from his possession from a hotel room. Another raid was conducted in House No.995, situate at Kishanganj, Teliwara, near Azad Market, Delhi on 29/30th November,1999. In the search, which was conducted at the said place on 29/30th November, 1999, 32.305 kg. of brown powder kept in nineteen transparent polythene bags kept inside three Safari suitcases, was said to have been recovered.

3. Appellant filed an application before the special judge that he may not be transferred to Delhi. The said plea was not accepted. The order of detention was placed before the Advisory Board for confirmation. The Advisory Board was to hold its meeting on 22nd April,2000. According to the appellant on the aforementioned date neither he nor his advocate Shri S.C. Puri could appear before the Advisory Board as he was being taken to Delhi from Bengal, and his advocate received the said communication from the Advisory Board only on 25th April,2000. It is also not in dispute that upon recommendations of the Advisory Board, the order of detention was confirmed on 12.5.2000.

3. Appellant made two representations praying for revocation of the order of detention. The first representation was made on 14th March,2000 raising all legal questions. The said representation was rejected. He, however, filed another representation on 26th May,2000 inter alia on the premise that his Constitutional right to appear before the Advisory Board having been denied to him, he was entitled to revocation of the order of detention dated 15th February,2000. The said representation was also rejected. Aggrieved, he filed a writ petition before the High Court.

4. Before the High Court three contentions were raised by the appellant. Firstly, his Constitutional right to be represented before the Advisory Board having been denied to him and having regard to the second representation made by him, the appropriate Government was under a constitutional obligation to reconstitute another Advisory Board so as to enable him to make proper representation before it. It was contended that the purported letter dated 7.4.2000 issued by the appropriate Government to him was an ante-dated one and in any event his advocate having received the same only on 25th April,2000, i.e., after the Advisory Board held its meeting on 22nd April,2000, the same was illegal and thus it was obligatory on the part of the appropriate Government to reconstitute the Advisory Board.

5. Secondly, his representation dated 26th May,2000 being based on fresh facts and new grounds, the same should have been disposed of at an early date but delay of 40 days having occurred, the order of detention should be set aside.

7. All the contentions having been rejected by the High Court by reason of impugned judgment, the appellant has preferred this appeal.

The appeal is allowed and the impugned judgment is set aside.