A.K.MATHUR, J. - (1.) THE petitioner by this Habeas Corpus Petition has challenged his detention order dated 30 -5 -1989 passed by the State Government Under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (here in after referred to as 'the Act' of 1988). Along with this, by another communication dated 30 -5 -1989 the petitioner was also give the grounds of his detention and the petitioner was asked to submit his representation if he so wishes. The allegations have been placed on record as Annex. 2.19 documents were also supplied to the petitioner along with the order of detention which has also been placed on record as Annex. 3. After receipt of the grounds of detention along with the documents the petitioner made a representation to the Detaining Authority on 16 -6 -1989 demanding copies of the relevent documents so as to enable him to establish his innocence. A copy of the representation has been placed on the record as Annex. 4. The representation, which was sent to the State Government through the Superintendent Central Jail, Jodhpur where the petitioner was detailed, come to be rejected by the State Government by communication dated 11 -7 -1989, a copy where of has been placed on the record as Annex. 5. The matter of petitioner's detention was referred to the Advisory Board by the State Government and the meeting of the Advisory Board was fixed on 12 -7 -1989 at Jaipur. The notice of the Advisory Board's meeting was served on the petitioner on 11 -7 -1989 in the after -noon and on that evening he was taken to Jaipur to produce before the Advisory Board. A copy of this notice dated 6 -7 -1989 which was served on the petitioner on 11 7 -1989 has been placed on the record as Annx. 6, along with the communication (notice) dated 6 -7 -1989 the petitioner also received yet another notice dated 11 -7 -89 by which be was informed that he could not be represented by a lawyer or any representative before the Advisory Board. The notice dated 11 -7 -1989 has been produced on the record as Annx. 7. It is alleged that the petitioner who was not conversant with the law his right to be represented by a friend before on the subject was not informed about Advisory Board. According to the endorsement made on Annx. 6 he was clearly told that he has to appear alone without any lawyer. It is further submitted that he was not given sufficient time to contact his relations and lawyer for appearing before the Advisory Board. It is alleged that at the Central Jail, Jaipur where the petitioner was detained he received this Annex.5, by which his representation to the State Government was rejected. Aggrieved against this action, the petitioner filed the present Habeas Corpus Petition. During the pendency of this petition, the petitioner also received a communication dated 21 8 -1989 whereby the petitioner's detention has been confirmed Under Section 9(f) of the Act on the recommendation of the Advisory Board. This has been filed by the petitioner also as well as by the State Government along with its reply and has been marked as Annx. Rule 1. The petitioner by an affidavit submitted that since he has received this communication therefore, he may be permitted to challenge this order of confirmation also along with the other grounds taken by the petitioner. The application of the petitioner was allowed and he was permitted to challenge the order of confirmation also.
(2.) A return has been filed by the respondents and they by their reply justified the detention of the petitioner. In order to appreciate the various contention raised by the petitioner, it is necessary to first examine the provisions of the Act on the subject.
(3.) THE Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 came into force on 6th September, 1988, The basic idea behind enacting this Act is to check the illicit traffic in narcotic drugs and Psychotropic substances. It is common knowledge that the drugs all over the world are creating havoc and disturbing the entire socio -economic structure. In order to take preventive measures to this world wide phenomenon, these strong measures are resorted to and Parliament passed the Act of 1988. The Statement of Objects and Reasons reads as under: In recent years, India has been facing a problem of transit traffic in illicit drugs. The spillover from such traffic has caused problems of abuse and addiction This trend has created an illicit demand for drugs within the country which may result in the increase of illicit cultivation and manufacture of drugs. Although a number of legislative, administrative and other preventive measures including the deterrent penal provisions in the Narcotic Drugs and Psychotropic Substances Act, 1985, have been taken by the Government, the transit traffic in illicit drugs had not been completely eliminated. It was, there are felt that preventive detention law should be enacted with a view to effect rely immoblising the traffickers. The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 provides for preventive detention relation to smuggling of drugs and psychotropic substances, but it cannot be invoked to deal with persons engaged in illicit traffic of drugs and psychotropic substances within the country. It was, therefore, felt that separate legislation should been enacted for preventive detention of persons engaged in any kind of illicit traffic in narcotic drugs and psychotropic substances. Accordingly, the President promulgated the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Ordinance, 1988 on the 4th July 1988. The ordinance provided for the following, among other things, namely: (i) The Central Government and the State Governments have been empowered to make orders of detention with respect to any person (including a foreigner) if they are of opinion that it is necessary so to do with a view to preventing him from committing illicit traffic in narcotic drugs and psychotropic substances. The expression 'illicit traffic' has been defined to include cultivation of any coca plant of gathering any portion of coca plants', cultivating the opium, poppy or any cannabis plant, or engaging in the production, manufacture, possession, etc, of narcotic drugs or pyschotropic substances; (ii) Any person in respect of whom an order of detention is made under the Ordinance at any time before 31st July, 1990 may be detained without obtaining the opinion of an Advisory Board for a period not exceeding one year from the date of his detention if the Detaining Authority is satisfied that such person is engaged, is likely to engage, in illicit traffic in narcotic drugs and psychotropic substances in any area highly vulnerable to such illicit traffic. The Ordinance also defined the expression 'are highly vulnerable to such illicit traffic.' (iii) The Ordinance also specifically provided that an order of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 cannot be issued on any ground on which an order of detention could be made under the Ordinance.' Section 2(a) defines the 'appropriate Government' and Section 2(e) defines the 'illicit traffic'. Section 2(e) reads as under: 'Illicit traffic', in relation to narcotic drugs and psychotropic substances, means - - (i) Cultivating any coca plant or gathering any portion of coca, plant. (ii) Cultivating the opium poppy or any cannabis plant; (iii) Engaging in the production, manufacture possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter -State, export inter -State import into India, export from India or transhipment of narcotic drugs or psychotropic substances; (iv) Dealing in any activities in narcotic drugs or psychotropic substances other than those provided in sub -clause (i) to (ii), or - - (v) Handling or letting any premises for the carrying on of any of the activities referred to in sub -clauses (i) to (iv); other than those permitted under the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), or any rule or order made, or any condition of any licence, term or authorisation issued, thereunder and includes: (1) Financing, directly of indirectly, any of the aforementioned activities; (2) Abetting or conspiring in the furtherance of or in support of doing any of the aforementioned activities; and (3) Harbouring persons engaged in any of the aforementioned activities. Section 3 empowers the Central or State Government or any officer of the Central Government, not below the rank of a Joint Secretary so authorised or in the case of the State Government not below the rank of Secretary so authorised to detain such person Section 5 lays down the power to regulate place and conditions of detention and Section 6 relates to grounds of detention severable. Section 9 deals with the Advisory Boards. Section 10 lays down the circumstances under which persons may be detained for periods longer than three months without obtaining the opinion of the Advisory Board Section 11 deals with the maximum period of detention. Section 12 empowers the State Government to revocation the detention order. It further lays down that revocation of the detention order will not debar the State Government from making another detention order against the same person. This is the scheme of the Act and the arguments raised from both the sides have to be judged in the contect of the provisions of the Act of 1988. ;