AZRAFATIMA Vs. UNION OF INDIA
SUPREME COURT OF INDIA (FROM: BOMBAY)
UNION OF INDIA
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Kasliwal, J. -
(1.)This special leave petition is directed against the judgment of the Bombay High Court dated 29th September, 1989 dismissing Criminal Writ Petition No. 87 of 1989.
(2.)Syed Ali Raza Shafiq Mohammed was detained by an order of detention passed under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as the Act) dated 19-12-88 by the Secretary (II) to the Government of Maharashtra, Home Department. The detention order and the grounds of detention were given to the detenu on 20th December, 1988. It may be mentioned that on 19-12-88 the detenu was already in jail as his bail application had been rejected. 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 judgment 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 ball 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 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 See. 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 31-1-89 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 21-2-89 and the Central Government by its reply dated 3-3-89. Thus there was an inordinate and unexplained delay in considering the said representation and of the detenu and this violated the right of the detenu under Art. 22(5) of the Constitution of India. The order of detention is illegal on this count also.
(3.)We shall deal with the above contentions seriatim. 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 necessary in order to prevent him from engaging in illicit traffic 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 detaining 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 possibility 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 v. Govt. of Tamil Nadu, JT 1989 (3) SC 478 and Dharmendra Sugan Chand Chelwat v. Union of India, (1990) 1 SCC 746.
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