ORDER
1. Preventive detention or detention without trial is permitted and authorised under the most revered part of the Constitution, Part III, guaranteeing the fundamental rights. Such a detention has to be distinguished from the punitive detention. The object of the preventive detention is to prevent a person not merely from acting in a particular way but from achieving a particular object. The laws relating to preventive detention, though having a source and the authority under the Constitution, are dealt with and regulated under various statutes enacted for the aforesaid purposes. Such laws, regulating preventive detention, have been enacted with the objects spelt out and declared under the relevant statutes. Resort to preventive detention can be had rarely, exceptionally and under specified circumstances. Court of laws in a country, where Rule of Law prevails, do not encourage, and see with favour, the preventive detention. However, where such detention is resorted to, Constitutional Courts in this country are put to guard with a signal of caution to ascertain the true nature, object and purpose for which such a detention is directed. Law relating to preventive detention though disfavoured has to be interpreted in the manner and by adopting the methods which encourage the object sought to be achieved by the detention without trial, in accordance with law applicable in the case by safeguarding the constitutional guarantee enshrined in Articles 21 and 22 of the Constitution.
2. Invoking the jurisdiction of one of such statutes i.e., Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, the respondent-State in exercise of the powers vesting in it under Sec. 3(1) of the said Act, directed the detention of the petitioners herein purportedly with a view to prevent them from engaging in manufacture, possession and concealment of psychotropic substances. All the petitioners have been directed to be kept in custody in the Central Prison, Bangalore. According to the grounds of detention served upon the petitioners, it transpires that they had established a factory where they were manufacturing Methaqualone tablets popularly known as mandrax tablets which are admittedly psychotropic substances prohibited under the NDPS Act. It is alleged that the mandrax tablets were being manufactured by the petitioners at a premises known as New Pathan Building Kakati village, Belgaum. A search was conducted in the aforesaid premises on 7-11-1996 and 8-11-96. During the search it was found that the premises had been converted into a factory where the mandrax tablets were being manufactured by installing a tablets ting machine, an oven, a granulator, etc. The prohibited drug was seized under a mahazar duly drawn in the presence of the witnesses. The petitioners are stated to have admitted their role in the manufacture of the aforesaid prohibited drug. It was also admitted that the petitioners have been indulging in sale of heroin and brown sugar smuggled into India though Afghan nationals. A case under the NDPS Act is stated to have been registered against one of the petitioners viz. Taj Mohammed Khan. He was arrested in that case and was facing trial in the Sessions Court at Mumbai in Spl. C. No. 244/92. He was also alleged to have earlier been arrested in connection with the recovery of brown sugar from the possession of an African national. He is alleged to be involved in another case of being in possession of illegally acquired weapons. He was stated to have purchased properties in Belgaum by using the proceeds of illicit narcotic trafficking.
3. In his statement voluntarily made on 8-11-1996 and recorded under Sec. 67 of the NDPS Act, the said Sri. Taj Mohammed Khan is reported to have stated that he had developed contacts with some Afghan nationals, who after political unrest in Afghanistan and military action in USSR got stranded in Pakistan and thereafter got started trading in brown sugar which they used to smuggle by concealing the same in the package brought through airports. The said detenu used to sell the smuggled brown sugar to Afghan nationals in Colaba area of Mumbai. While indulging in the sale of brown sugar he came into contact with one Sri. David Jan an African national. While dealing with the said Sr. David Jan, the alleged detenu came in contact with Sr. Sabha Mohammed Khadir, Sri. Ahmed Khadir, and Ahmed, who are stated to be the co-accused with him in the heroin case pending in the Sessions Court at Bombay. He is also admitted to have voluntarily confessed of having been involved in the smuggling of 200 gold bars. He admitted to have opened a firm carrying out ticketing where Aslam was his partner. They carried on this business under the name of Taj Travel Wasimal, Wasimal Building, Opp. Railway Hotel, Grant Road, Mumbai. In the course of this business one Sri. Adil came in contact with him and remained with him till his arrest in relation to the case regarding the manufacture of mandrax tablets. He was alleged to have admitted that he was picked up by the Crime Branch Unit No. 9, Andheri, Mumbai, for possessing illegal weapons. Two revolvers and two pistols of .32 bore were recovered and seized from him. The said weapons were alleged to have been given to him by one Khuda Baksh. Case No. CR 260/93 was admitted to have been registered against him. Khuda Baksh told him that there was a person by name Azeez Merchant at Mahim, Mumbai, who had a project for rearing can of fibre trees with buy back agreement. In a meeting Azeez Merchant introduced the said detenu to one Mukesh Patel who normally resided in USA and was involved in the selling of project along with technical know-how on commission basis. The detenu is admitted to have invested Rs. 15 lakhs in the project which did not take off and he in the company of one Sri. Swain visited U.S.A. He was informed by one David Jan that he could do the business if he could get him 'Buttons'. The Button was a code word used in the narcotic trade for mandrax tablets. He was informed that mandrax tablets were generally manufactured at Mandsaur in Madhya Pradesh. He along with Adil went to Mandsaur where he got in touch with one Raju to whom he paid Rs. 10000/- for the starting of the project of manufacture of the mandrax tablets. On his instructions the detenu along with Adil visited Indore where they stayed in the Ambassador Hotel. Raju then introduced one Bablu. The detenu thereafter spoke to David Jan who told him that the mandrax tablets when manufactured should have the flower marking on the one side and swastik mark on the other and the colour should be off white. Rupees thirteen thousand were given to Bablu for getting the dyes and punches for flower and Swastik marks. He was also introduced to one Shukla who informed the detenu that he was required to have a rotary type tablet making machine for manufacturing methaqualone tablets. A sum of Rs. 1,10,000/- was paid to Shukla for the said machine. Shukla despatched tablet making machine from Ahmedabad to Kakati, by tempo. The said machine was purchased in the name of some company by Shukla. David Jan made a hawala payment of Rs. 25 lakhs to the detenu through a person who was looking like a marwadi. On his asking Shukla sent the binding materials to the detenu through Shivani transport. As despite purchase of machinery the detenu did not know the art of manufacturing, he contacted one person named Indrajeet Singh who agreed to work for him on payment of Rs. 1,00,000/- as his fee. The detenu and one Adil were taught the process of manufacturing of methaqualone powder. It is further alleged in the grounds of detention that :
'.... Indrajeet asked you and Adil to weigh 14 Kgs. of Anthranilic Acid and put it in the reaction flask to which you added 14 Kgs. of Acetic Anhydride; that the mixture was stirred for about 30-45 minutes; that after some cooling to the above mixture in the reaction flask, 8 Kgs. Ortho Toludine was added and the mixture was again stirred for about 30-45 minutes; that to above mixture 3 1/2 Kgs. of Phosperous Tirchloride i.e. PCL 3 is added and this mixture is again stirred for about 30-45 minutes, that in a separate container a bucket full of water is taken and to it slowly 14 Kgs. of Caustic Soda is added and dissolved; that half of this Caustic Soda solution is added to the contents of the reaction flask when the liquid inside reacts with the Caustic Soda and forms a paste like substance. This substance is taken out in a container and remaining Caustic Soda solution is added to it and it is stirred with the stirrer for some time. This mixture is then taken on a cloth and washed with water, the remaining solid is then dried and that is Methaqualone powder; that Indrajeet stayed with you for about 15 days and taught you the procedure for manufacturing Methaqualone and Acetic Anhydride; that you have paid him (Indrajeet) the remaining of Rs. 75,000/-; that the Methaqualone powder which was manufactured daily at your farm house, used to be shifted by you and Adil in some private transport to your premises at Kakati, P.B. Road, Belgaum; that the complete manufacture of about 1000 Kgs. of Methaqualone was over by Aug. 1996; that you had to make tablets of Methaqualone out of the above powder; that for this purpose you asked Bablu of Indore to come over to Belgaum; that Bablu in turn told you that one Abdul Azeez, his uncle knows the work better so if he (Aziz) comes over, work would be done faster; that you agreed to Bablu's bringing Abdul Azeez to Belgaum; that Abdul Azeez was paid Rs. 1 lakh in advance; that accordingly Adil and you met Bablu and Abdul Azeez at Natraj Hotel, Pune on the Dasara day i.e. 21-10-96; that from there all the four of you travelled by bus and came to Belgaum; that Bablu, Adil and Abdul Azeez were put up in your factory-cum-house at Kakati; that you used to frequent between your house at Azam Nagar and Kakati; that at Kakati you had set up factory unit where you can make tablets; that the said premises at Kakati is a one storeyed building; that the building has a basement, ground floor, first floor and terrace; that basement is made for the storage purpose; that on the ground floor, he had kept Rotary type heavy duty 16 station tablet making machine; a dryer, a mixer, a granulator and other sundry equipments required in a laboratory; that on first floor of the building there are 5 rooms out of the which 3 are rented out by you and two are kept in your mother's name by you only; that all the finances pertaining to the purchase of the said land and construction of the building were borne by you; that you did not have any telephone No. in the said premises; that you own land measuring about 1 acre and 5 guntas at survey No. 57, Basavanagar, Belgaum; that the said land is an agricultural land purchased by you in the joint name of your mother i.e. Noor Jahan, your wives Bilkis and Anjum and yourself; that you had purchased this land in the year 1994 for about Rs. 75,000/- as per the sale agreement; that you actually paid 4.5 lakh rupees; that Bablu, Abdul Azeez examined the Methaqualone powder and told you to put following chemicals for tablets making : (1) M.Q. i.e. Methaquolone 50 Kgs.; (2) Dipheme 10 Kgs.; (3) Lyzafom 400 gms.; (4) PVK 30-3 Kg.; (5) Starch 3.5 Kgs.; (6) Aerosil 1.5 Kgs.; (7) ISO Propyl Alcohol (IPA) 4.5 litres; that all the above mentioned chemicals except at Sl. No. 7 are put in a mixer and mixed for about 30-45 minutes; that after they were mixed properly, IPA is added to the mixture and the mixture is allowed to remain for 20-30 minutes; that if the mixture is not very dry, it was dried by you on terrace in the sunlight; that thereafter, it is put in the granulator, three Kg. in each tray and dried at 35-40 degree C. for about 4 to 5 hours till the moisture has completely evaporated; that the said mixture was then taken out in a plastic container and to 6 Kg. of such mixture, 240 gms. of talc was added and it was mixed with hand; that said mixture was then poured from the hopper of the rotary type 16 station heavy duty tablet making machine; that Bablu and Adil operated this tablet making machine; that Abdul Azeez had promised you that he can make 1.5 lakh tablets per day on this machine so you had paid him Rs. 1 lakh in advance; that after coming to Kakati, Abdul Azeez examined the M.Q. i.e. Methaquolone and told that it would take more time to dry and that he was not well so he left Kakati after 4 days; that Bablu also accompanied him; that as you had a contract to be fulfilled and you were in a hurry to get the Methaqualone tablets manufactured, you called Bablu back saying that the sun was quite bright and the mixture can be dried fast, that for calling Bablu you had telephoned him on Indore telephone No. 541833; that Bablu's actual name is Mohammed Abdul Rab; that accordingly, Bablu came back to Kakati on 31-10-96; that thereafter you started your job of manufacturing Methaqualone tablets daily; that you were mixing the M.Q. with the tableting agent and drying them on top of the building terrace at Kakati; that your Kakati factory buildings name is 'New Pathan Building'; that on 2nd November, 1996 you manufactured about 1-20 thousand Methaqualone tablets; that again on 4th November, 1996 you manufactured about 77,000 Methaqualone tablets till i.e., 7th Nov., 1996; that you had manufactured approximately 3 lakh Methaqualone tablets; that once the tablets were manufactured they were put in a container and taken to the first floor of the building and kept in the 2nd room and in that room you used to count 1000 tablets of a particular batch and then put it in a polythene bag with a moisture absorber and heat seal it, that thereafter he used to weigh these 1000 tablets and on the basis of weight pack the remaining tablets in polythene bag and heat seal them; that you had a heat sealing machine for sealing the polythene bags; than in doing all these jobs you were assisted by Adil Bhatkar, Mohammed Umar Khan Pathan, Mohammed Abdul Rab alias Bablu, Arshad Salim Khan, Baaz Khan; that in manufacturing of Methaqualone tablets all these people assisted you at various stages of manufacturing procuring raw materials, machine, etc.; that Adil was in partnership with you and you were to give him 25 % of the profit you get; that on one tablet of Methaqualone manufactured by you, he was to get a commission of Rs. 3/-; that once all the tablets of Methaqualone were ready you were to contact David John who was to tell you as to where the same were to be delivered; that your second wife Anjum Taz Mohammed resides at Kamapa-3 Building, flat No. 53, S. V. Road, Andheri West, Mumbai; ...'
4. Sri. Mohammed Umar Khan Pathan, another detenu also made voluntary statement under Sec. 67 of the NDPS Act detailing therein the background, circumstances and the details under which the process of manufacturing of the tablets was being carried out at Kakati, Pone-Bangalore Highway. He corroborated the testimony of Taj Mohammed Khan and stated that the business was being carried by him with Taj Mohammed Khan, Mohammed Adil Bhatkar alias Adil, Arshad Salim Khan, Baz Khan, Mohammed Abdul Rab alias Bablu. All these persons were actively involved in the manufacturing, packing, storing, selling, etc. of the Methaqualone tablets and were available at Kakati premises when the search and seizure was made.
5. Identical statements were made by Sri. Arshad Salim Khan, Sri. Mohammed Abdul Rab, Sri. Baaz Mohammed, Sri. Mohammed Adil Bhatkar and Sri. Ranjan Worlikar.
6. All the detenus, who were found in the manufacturing premises at Belgaum at the time of raid and seizure were arrested under the provisions of the NDPS Act and were produced before the Magistrate at Belgaum who remanded them to judicial custody. Rajan Worliker was not arrested at the premises, but at Mumbai on 8-11-1996. He was produced before the Chief Metropolitan Magistrate and remanded to judicial custody.
7. Rajan Worlikar is stated to have retracted his statement made on 7-11-96 and 8-11-96. He submitted before the Court of Special Judge at Bombay that the statement made was not voluntary.
8. All the detenus who were arrested and remanded to judicial custody were stated to have moved the applications for enlargement on bail. The Court of Principal Sessions Judge, Belgaum, vide his order dt. 5-2-1997 ordered the release of the detenus on bail with certain conditions. Against the order of the Sessions Judge, Belgaum, Criminal petition No. 409/97 was filed in the High Court of Karnataka on 7-2-1997. The High Court vide its order dt. 7-2-1997 stayed the operation of the order of the Prl. Sessions Judge, Belgaum, releasing the seven detenus on bail. An application for vacation of stay order passed by the High Court has been moved.
9. After narrating the various facts and circumstances mainly levelled on the basis of the statements of the detenus made under Sec. 67 of the Act, the detaining authority concluded :
'From the above facts and materials, the Government of Karnataka satisfied that you have knowingly engaged yourself in illicit traffic in Narcotic Drugs and Psychotropic Substances as is evident from your statement and material evidence available on record. Considering your role and antecedents, even though prosecution proceedings under the Narcotic Drugs and Psychotropic substances Act, 1985, have been initiated against you in the matter, the Government of Karnataka is satisfied that there is a compelling necessity in view of the possibility of your being released on bail under normal law and the likelihood of your indulging in illicit traffic in narcotic drugs and psychotropic substances as is evident from your past record, to detain you under the provisions of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act), with a view to preventing you from engaging yourself in such prejudicial activities in future.'
10. Despite opportunity granted, none of the detenus is reported to have made any representations against the order of detention. It is also not disputed that the detention warrants and the grounds of detention were duly served and explained to the detenus.
11. The orders of detention have been challenged by all the detenus on identical grounds. The detention orders are termed to be illegal, invalid, contrary to law and facts and circumstances of the cases. It is alleged that the impugned orders being not speaking orders were liable to be quashed. The detaining authority is stated to have not satisfied itself regarding the detenu being indulging allegedly in illicit traffic in relation to NDPS Act or any other law. It is contended that the materials available with the respondent-authority did not attract the provisions of the Act justifying the preventive detention. It is submitted that the petitioners have been directed to be detained under the preventive detention law at a time when they were already in jail and were facing trials. The orders of detention are alleged to have been passed mechanically without application of mind. As the petitioners were in jail and the orders of bail granted in their favour had been stayed by this Court, the respondent-authority was not justified to order their detention. The respondent-authority is alleged to have exceeded its jurisdiction while directing detention. The action of the respondents has been challenged on the ground of being contrary to the provisions of Sections 10 and 11 of the Act and Article 22 of the Constitution. It is alleged that there has been unexplained delay in the passing and service of the detention orders which entitle the petitioners to be set at liberty. The voluntary statements attributed to the petitioners are alleged to have been fabricated being mechanically written and not being truthful. The grounds of detention are alleged to be non-existing. Relevant documents are reported to have not been supplied along with the grounds of detention. It is submitted that the impugned orders were based upon alleged voluntary statements which were subsequently retracted and as the retraction of the statements has not been taken note of, the detention orders were liable to be set aside. The petitioners who claim to be respectable citizens submit of having not violated any law. As the respondents are alleged to have resorted to illegally detain the petitioners, without trial, they have prayed for being set at liberty forthwith.
12. In the counter-affidavits filed by Sr. N. A. Muthanna, Additional Chief Secretary and the Principal Secretary, Home and Transport Department, Government of Karnataka, it is submitted that the petitioners were involved in the manufacture of mandrax tablets. They admitted their role in the manufacture of prohibited goods vide voluntary statements made. The voluntary statements made by the petitioners were properly perused and considered before directing their detention. Apart from the voluntary statements, various other documents and records, viz., seizure mahazars drawn before the independent witnesses, test report of the Chemical Examiner, etc., had been relied upon to arrive at a decision of detaining the petitioners under the provisions of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act. The action for trial of the petitioners under the said Act was independent of the action under the NDPS Act, 1985. There has not been any delay much less inordinate delay in passing the detention orders against the petitioners as alleged. Considering the fact that the records scrutinised and relied upon were voluminous which were translated into Hindi, there was no undue delay in passing the detention orders. The detention orders have been passed after scrutiny of documents relied upon and in judicious exercise of powers of detention. The detention orders are claimed to be perfectly in order and in harmony with the letter and spirit of the provisions of the Act. The detaining authority was satisfied that the petitioners were found engaged in the production and manufacture of prohibited drugs. The trial of the detenus and their preventive detention were independent of each other. The inferences drawn and the conclusions arrived at are based upon scrutiny of documents. The preventive detention of the petitioners was based on the satisfaction of the respondent-authority of their apprehended likely indulgence in illicit trafficking. The detaining authority was aware of the arrest of the detenus at the time of passing of the detention orders which were justified, besides other things, of their being finally released on bail. The detention is not for an indefinite period but only for the period as specified under the Act. The judicial custody of the detenus could be terminated at any time which necessitated the passing of the detention orders with the object of preventing them from indulging in the nefarious activities and dealing in narcotic drugs. There has not been any delay. The grounds of detention were served upon the petitioners one day immediately after their detention in accordance with the provisions of Sec. 3(3) of the Act and not beyond five days in any case. The conditions precedent in recording the voluntary statements were followed before actual recording the statements of the petitioners. The statements made by the petitioner were typed out as rendered by them at their request as they had expressed to be not fluent in writing. The petitioners have appended endorsements to that effect in their own hands. The allegation that the procedure prescribed for recording voluntary statement was not followed has vehemently been denied. The grounds of detention are claimed to be sufficient for the purpose of directing preventive detention of the petitioners. The order of detention are stated to have not been passed in a mechanical manner, or without satisfaction as contemplated under the Act. It is submitted that none of the petitioners excepting Rajan Worlikar had retracted the statements made by them. The retraction of the statements of Rajan Worlikar was considered by the detaining authority at the time of the passing of the detention order. The order of detention is stated to have been passed on solid and substantial grounds which could not be dubbed to be devoid of merits. No fundamental or legal right of the detenu is stated to have been violated. The petitions filed are stated to be misconceived and liable to be rejected.
13. The pendency of a criminal prosecution is no bar to direct preventive detention in accordance with law applicable for such detention. The power of preventive detention has been held to be qualitatively different from punitive detention. Exercise of such power is a precautionary measure in a reasonable anticipation. It cannot be termed to be a a parallel proceeding and does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention can be passed before or during the pendency of the prosecution proceedings. The Supreme Court in Haradhan Saha v. State of West Bengal, : 1974CriLJ1479 , held (at Page 1482 of Cri LJ) :
'The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. The basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case a person is punished to prove (sic) (on proof of ?) his guilt and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in Section 3 of the Act to prevent.'
In Babu Lal v. State of West Bengal, : 1975CriLJ585 , it was held that the mere fact that the petitioner was discharged by the Court for an offence did not debar the authorities to direct his preventive detention. Similarly the Apex Court in Ram Bali Rajbhar v. State of West Bengal, : 1975CriLJ592 , held that prevention and punishment though have some common ultimate aims, yet their immediate objectives and modes of action are distinguishable. To the same effect is the judgment of the Apex Court in Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, : 1971CriLJ1720 . It is for the detaining authority to determine, as to whether, even in a case where criminal prosecution was pending, there were sufficient materials necessitating the preventive detention in order to prevent the detenu from acting in a manner prejudicial to public order or the security in future. Want of evidence for successful prosecution is a matter which can be legitimately taken into consideration by an authority competent to pass an order for detention under the relevant provisions of the Act applicable. The detaining authority after coming to know that the detenu was going to be discharged from criminal cases for want of sufficient evidence for successful prosecution is justified to take the view that it was necessary to detain him with the object of preventing the detenu from acting in the manner prejudicial to the maintenance of public order. The only safeguard required is that the detaining authority must have arrived at its subjective satisfaction on the basis of the records produced before it. The detaining authority, in such cases, must be shown to be aware of the fact that the detenu was under custody and that despite such custody his preventive detention was necessary fro the purposes of preventing him from acting in any manner prejudicial to the public order. Relying upon its earlier decisions in Rameshwar Shaw v. District Magistrate, Burdwan, : 1964CriLJ257 ; Ramesh Yadav v. District Magistrate, Etah, : 1986CriLJ312 and Shashi Aggarwal v. State of U.P., : 1988CriLJ839 , the Supreme Court again in Vijay Kumar v. Union of India, : 1988CriLJ951 , held that when a detenu was in jail for an offence at the time of his preventive detention two facts must appear from the grounds of detention, namely, (1) awareness of the detaining authority of the fact that the detenu was already in detention and (2) compelling reasons justifying such detention despite the fact that the detenu was already under detention. It was further held that the detaining authority must have awareness of the fact that the detenu is already in custody and yet for compelling reason his preventive detention is found necessary. The compelling reasons justifying the preventive detention have to be found out from the grounds of detention and not apart from the grounds. The satisfaction of the detaining authority cannot be reached on extraneous matters. The need to put the person under preventive detention depends only upon the grounds of detention. The activities of the detenu may not be isolated or casual. They may be continuous or part of a transaction or racket prejudicial to the conservation or augmentation of foreign exchange. Then there may be need to put the person under preventive detention, notwithstanding the fact that he is under custody in connection with a case. There cannot, however, be any uniform principle to be applied in this regard. Each case has to be judged on its own facts and on its own grounds of detention. If the grounds are germane it would be perfectly legitimate exercise of power to make an order of detention.
In the instant case the detaining authority is proved to have been aware of the fact that the detenus had been lodged in custody in criminal cases and that as their bail applications had been allowed, their preventive detention was necessary for the purposes of the Act under which the power has been exercised.
14. Pleading us to believe that Court order like order dated 11-11-96 amounted to retraction of the statements made by the detenus u/S. 67 of the NDPS Act, the learned Counsel for the petitioners has submitted that as such retracted confessions had not been taken note of by the detaining authority, the detention of the petitioners was illegal and liable to be quashed. Elaborating his argument the learned Counsel for the petitioners has contended that the alleged voluntary statements had been retracted by the detenus as they had stated before the Special Court that only their signatures were taken and they did not know the contents. In support of his contention he has relied upon the judgment of the Apex Court in : 1991CriLJ1536 and 1995(2) ILR Kar 164.
15. Confession has been held to mean an acknowledgment in express words, by the accused in a criminal case, of the truth of the guilty facts charged or of some essential part of it. It is an attempt made at any time by a person charged with crime, stating or suggesting the inference that he committed the crime. In Sahoo v. State of U.P., : 1966CriLJ68 , confession was held to mean :-
'Before we consider whether the circumstances narrated above would stand the said rigorous test, we will at the outset deal with the contention that the soliloquy of the accused admitting his guilt was not an extra-judicial confession, as the Courts below held it to be. If it was an extra-judicial confession, it would really partake the character of direct evidence rather than that of circumstantial evidence. It is argued that it is implicit in the concept of confession, whether it is extra-judicial or judicial, that it shall be communicated to another. It is said that one cannot confess to another. This raises an interesting point, which falls to be decided on a consideration of the relevant provisions of the Evidence Act. Sections 24 to 30 of the Evidence Act deal with the admissibility of confessions by accused persons in criminal cases. But the expression 'confession' is not defined. The Judicial Committee in Pakala Narayanaswami v. Emperor , has defined the said expression thus :
'A confession is a statement made by an accused which must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence.' A scrutiny of the provisions of Sections 17 to 30 of the Evidence Act discloses, as one learned author puts it, that statement is a genus, admission is the species and confession is a sub-species. Shortly stated, a confession is a statement made by an accused admitting his guilt. What does the expression 'statement' mean The dictionary meaning of the word 'statement' is 'the act of stating, reciting or presenting verbally or on paper'. The term 'statement', therefore, includes both oral and written statements. Is it also a necessary ingredient of the term that it shall be communicated to another The dictionary meaning of the term does not warrant any such extension; or the reason of the rule underlying the doctrine of admission of confession demands it. Admissions and confessions are exceptions to the hearsay rule. The Evidence Act places them in the category of relevant evidence presumably on the ground that, as they are declarations against the interest of the person making them, they are probably true. The probative value of an admission or a confession does not depend upon its communication to another, though, just like any other piece of evidence, it can be admitted in evidence only on proof. This proof in the case of oral admission or confession can be offered only by witnesses who heard the admission or confession, as the case may be. The following illustration pertaining to a written confession brings out the said idea : A kills B; enters in his diary that he had killed him, puts it in his drawer and absconds. When he places his act on record, he does not communicate to another; indeed, he does not have any intention of communicating it to a third party. Even so, at the trial the said statement of the accused can certainly be proved as a confession made by him. If that be so in the case of a statement in writing, there cannot be any difference in principle in the case of an oral statement. Both must stand on the same footing. This aspect of the doctrine of confession received some treatment from well-known authors in evidence, like Taylor, Best and Phipson. In 'A Treatise on the Law of Evidence' by Taylor, 11th Edn., Vol. I, the following statement appears at p. 596 :
'What the accused has been overheard muttering to himself or saying to his wife or to any other person in confidence, will be receivable in evidence.' In 'The Principles of the law of Evidence' by W.M. Best, 12th Edn. at P. 454, it is stated much to the same effect thus :
'Words addressed to others, and writing, are no doubt the most usual forms; but words uttered in soliloquy seem equally receivable.' We also find the following passage in 'Phipson on Evidence', 7th Edn., at P. 262 :
'A statement which the prisoner had been overheard muttering to himself, if otherwise than in his sleep, is admissible against him, if independently proved.' These passages establish that communication to another is not a necessary ingredient of the concept of 'confession'. In this context a decision of the Court in Bhogilal Chunilal Pandya v. State of Bombay, : 1959CriLJ389 may usefully be referred to. There the question was whether a former statement made by a witness within the meaning of S. 157 of the Evidence Act should have been communicated to another before it could be used to corroborate the testimony of another witness. This Court, after considering the relevant provisions of the Evidence Act and the case-law on the subject came to the conclusion that the word 'statement' used in S. 157 meant only 'something that is stated' and the element of communication was not necessary before 'something that is stated' became a statement under that section. If, as we have said, statement is the genus, we do not see any reason why the statement implied in the confession should be given a different meaning. We, therefore, hold that a statement, whether communicated or not, admitting guilt is a confession of guilt.'
15A. As the confession is required to be clear, specific and unambiguous, its retraction should also not be ambiguous, vague or imaginary. The person alleging retraction of confession or his earlier inculpatory statement must satisfy the Court that he had withdrawn from that statement, at the earliest possible time and such withdrawal from the statement cannot be pleaded to be presumed on imaginary grounds. The order of the Special Court dated 11-11-96 mentions :
'11-11-96 : Complainant by Intelligence Officer - present.
D.R.I., Bangalore
A-1 to A-6 are in J.C.
A-1 to A-6 are produced from J.C. Shri S. D. Benchannavar, for A-1, A-2 and A-5, Smt. P. B. Hampannavar for A-3, A-4 and A-6 offer to file vakalat. They are permitted to take signatures of accused on vakalat. Call on 25-11-96.
A-1 to A-6 are remanded to J.C. till 25-11-96.
Acting Spl. P.P. prays to produce case-diary extract. A-1 submits that their signatures are taken by some officers on something written in English. All the other accused also submitted that their signatures were also taken on something written in English by the officers.
Sd/-
11/11.'
+P2321
16. Such an order of the Court cannot, by any imagination, be held to be retracting from the earlier statements made. It has been brought to our notice that the detenus had signed many papers including the statements, mahazars, etc. None of them, except Rajan Worlikar is shown to have specifically retracted from the earlier statement made. Regarding the alleged retraction of statement, the detaining authority in the counter-affidavit filed before us has stated :
'31. Insofar as the ground in para 29 in the petition, I submit that the allegations are denied. The retraction of the statement was only by one Rajan Worlikar - the petitioner in one of the connected writ petitions and not by either the petitioner or the petitioners in the other connected writ petitions and the same was considered by me along with the reply furnished thereto by the D.R.I., Mumbai.'
17. The reliance of the learned Counsel on K. Satyanarayan Subudhi v. Union of India, : 1991CriLJ1536 , is misplaced inasmuch as in that case the detenu was proved to have specifically retracted from his confession statement which was proved to have been not taken note of by the detaining authority. As the retraction of the statement was shown to have not been considered by the detaining authority, it was held that in the absence of such circumstance, the authority was prevented from forming its subjective satisfaction in making the order of detention against the detenu. Such is not the case of the detenus in these petitions. Similarly, the facts of the case in ILR (1995) Kant 164 are distinguishable. Detention of the petitioners cannot, therefore, be set aside on this ground.
18. The learned Counsel appearing for the petitioners has taken great pains to persuade us to hold that as the detention orders were allegedly passed after a prolonged and unexplained delay, the same were liable to be quashed. It is submitted that even though the petitioners were arrested in the first week of November 1996, yet the detention warrants were issued on 15-4-1997. It is submitted that the delay of almost six months was fatal necessitating the issuance of directions for setting the detenus as liberty. The alleged delay has been sought to be explained by the respondents vide the averments made in their counter-affidavit filed in the petitions. It is submitted that there has not been any delay in passing the detention orders or serving the same on the petitioners. Before passing the detention orders the detaining authority claims to have perused the voluminous record which was put before it after translation. In the counter-affidavit it is specifically stated :
'There are no delay much less inordinate delay in passing the detention orders against the petitioners as alleged. Considering the fact that the records scrutinised and relied upon are voluminous, which were translated into Hindi, there is no undue delay in passing the detention orders. The detention orders are passed after scrutiny of the documents relied upon and in judicious exercise of the powers of detention. The reasons found for the detention of the petitioner is clearly indicated in the detention order.'
19. It is true that the unexplained delay in passing the detention order is a ground for setting aside the preventive detention. However, in a case where the delay is explained by the detaining authority, the Court may not interfere with the order of detention. Each case is required to be decided on its own facts and no uniform criteria or period of limitation can be prescribed to determine the effect of alleged delay. The Supreme Court in Shri Shiv Ratan Makim v. Union of India, : 1986CriLJ813 , dealt with the question of delay and held (at Page 815 of Cri LJ) :
'It is no doubt true that where an unreasonably long period has elapsed between the date of the incident and the date of the order of detention, an inference may legitimately be drawn that there is no nexus between the incident and the order of detention and the order of detention may be liable to be struck down as invalid. But there can be no hard and fast rule as to what is the length of time which should be regarded sufficient to snap the nexus between the incident and the order of detention.'
20. In Kamal Pramanik v. State of West Bengal, : AIR1975SC730 , the delay of one year was, under the circumstances of the case was held to be not fatal. In that case the detenu's complexity in the criminal cases instituted on the basis of the incidents having taken place in the month of June, August and September, 1971 came to the light during the course of investigation and as the detenu was termed to be a dangerous person, witnesses being afraid did not come forward to depose against him. He was discharged in the cases and freed from custody on 11-7-1972, but again taken into custody on 7-9-1972 in pursuance of the order of detention passed on 28-8-1972. The Court held that the delay of about one year stood sufficiently explained as the detention order was necessitated because the criminal cases could not proceed and the detenu was discharged.
21. In K. Aruna Kumar v. Govt. of Andhra Pradesh, 1988 SCC (Crl) 116 : (1988 Cri LJ 411), the Apex Court held :
'The delay cannot by itself vitiate the decision to detain a person and this is fully demonstrated by the cases of Rajendra Prashad v. State of U.P., wherein the order was passed after seven months, Smt. Hemlata Kantilal Shah v. State of Maharashtra and Malwa Shaw v. State of W.B. wherein the orders of detention were passed five months later.'
To the same effect is the judgment of Supreme Court in Kamarunnissa v. Union of India, 1991 SCC (Crl) 88 : (1991 Cri LJ 2058).
22. In Rajesh R. Khushlani v. Mahendra Prasad, 1993 SCC (Crl) 404, the delay of 6(1/2) months was found to have been satisfactorily explained on the ground of the fact that voluminous documents seized in the case had to be perused by the detaining authority before passing the detention orders.
23. In the instant case the record reveals that the detenues were arrested in the first week of November, 1996. The samples of the seized articles were sent to chemical analysis immediately thereafter. The report of the chemical analysis received on 24-12-1996 confirmed the presence of methaqualone in the seized articles. The D.R.I. of Mumbai sent the details of the anecdote of Taj Mohammed Khan and his involvement in the number of cases. The D.R.I. officers of Bangalore are stated to have requested the State Government to constitute a Screening Committee for the purposes of deciding the future course of action regarding the petitioners. The Screening Committee was constituted by the State Government on 28-1-97. A proposal was sent to the Screening Committee for consideration of detention of the detenues on 3-2-1997. Meanwhile the Sessions Judge, Belgum granted bail to all the detenues except Taj Mohammed Khan. The Screening Committee is stated to have accepted the proposal of D.R.I. for passing the detention orders on 14-2-1997. Papers were sent to the first respondent, who sought furnishing of the translated version of all the documents in the language known to all the detenues. The translated version of the documents came to be furnished to the detaining authority by the end of March 1997. The detaining authority thereafter passed the impugned orders on 16-4-1997. The fact that the record seized was voluminous is not disputed. The paper book supplied to us also comprises of about 1,000 pages. The fact the documents seized were not in the language known to the detenues is also not disputed. Getting the record translated spread over almost 1,000 pages necessarily required time. The detaining authority could not pass the detention order in the absence of the relevant record. If such an order was passed, the same could have been rightly challenged on the ground of non-application of mind and subjective satisfaction in the absence of the relevant record. We are satisfied that the delay in the instant case is neither intentional nor uncalled for. Such a delay, cannot be made a basis for setting aside the detention of the petitioners who are alleged to be involved in the heinous crime of manufacturing of Mandrax tablets intended to be sold for profits resulting in the health hazards for the common man. The detenues cannot be conferred any benevolence under the cloak of technicalities. The ground of delay, as argued before us, is apparently concocted and imaginary and not accepted by us for the purposes of setting the detenues at liberty.
24. It has been further contended on behalf of the petitioners that the solitary incident of November 1996 would not be made a basis for directing preventive detention of the petitioners. It is submitted that as none of the petitioners except Taj Mohammed Khan been shown to be having criminal record or anecdotes, they should have been dealt with under the ordinary law and not subjected to preventive detention. The passing of the detention order is based upon the subjective satisfaction of the detaining authority and if such authority finds that even the solitary incident was sufficient to apprehend the likelihood of the detenue repeating such an incident or prejudicial activity in future also, it has the jurisdiction and competence to direct the preventive detention of the concerned. The continuous past conduct cannot be insisted upon in all cases of preventive detention which is basically intended to prevent a person from acting in a prejudicial manner in future. The preventive detention being not punitive detention has to be understood in this context. The Supreme Court in M. Mohamed Sulthan v. Joint Secretary to Govt. of India (1991 SCC (Criminal) 104) : (AIR 1990 SC 2222) considered this aspect and held (at page 2225; of AIR) :
'It is urged that a single incident could not afford the basis for arriving at the satisfaction that the petitioner might repeat such acts in the future and it was necessary to detain him in order to prevent him from doing so. We are unable to agree with this contention. An order for preventive detention is founded on a reasonable prognosis of the future behaviour of a person based on his past conduct judged in the light of the surrounding circumstances. Such past conduct may consist of one single act or of a series of acts. It must be of such a nature that an inference can reasonably be drawn from it that the person concerned would be likely to repeat such acts as to warrant his detention. (Debi Mahto v. State of West Bengal). The question which, therefore, needs to be considered is whether from the past conduct of the petitioner as set out in the grounds of detention it could reasonably be inferred that the petitioner would be likely to repeat such acts in the future'.
25. The detention orders are also sought to be quashed on the ground of alleged non-application of mind by the detaining authority. It is submitted that the detention orders are not based upon the subjective satisfaction but are the result of general apprehensions unnecessarily allegedly conceived by the detaining authority. The sufficiency of the materials made available to the detaining authority justifying the passing of the detention orders cannot be examined by High Court while exercising writ jurisdiction. This Court cannot sit in appeal over the detention order. It is not for this Court to go into and assess the probative value of the evidence available to the detaining authority. We are fortified in our views by the observations of the Supreme Court in K. Aruna Kumari's case (supra). Otherwise also, a persual of the detention order, the grounds of detention and the other accompanying voluminous records placed on the files clearly and unambiguously shows that the detaining authority had passed the order upon application of its mind with respect to all the attending circumstances keeping in mind the object and purpose of the Act. The subjective satisfaction arrived at by the detaining authority cannot be termed to be either erroneous or based upon extraneous considerations. The detention orders pertaining to the detenues, therefore, cannot be set-aside on this ground also.
26. The detention orders are also challenged on the ground that the statements made by the petitioners and recorded under S. 67 of N.D.P.S. Act were not voluntary which are stated to be hit by S. 161 of the Cr.P.C., Sec. 25 of the Evidence Act and Art. 20(3) of the Constitution of India. The submission is without substance and not relevant for the purposes of deciding the present petitions. The questions as to whether the statements were made voluntarily or not is essentially a question of fact which can be adjudicated on the basis of the evidence led at the trial. There is nothing on record to show that the statements of these petitioners were not voluntarily made. Such a question can be raised and got adjudicated in the Court where the Criminal prosecution is pending against the petitioners.
27. The order of detention is also prayed to be set aside on the ground of its allegedly being for an indefinite period contravening the provisions of Ss. 10 and 11 of the Act. The submission is without any substance because the maximum period of detention prescribed under the Act is not required to be mentioned in the detention order as mention of such period is likely to prejudice the Advisory Board where the matters are required to be put for confirmation. The submission of the learned counsel in this behalf is purely an imaginary which cannot be referred to any factual or legal position applicable in the case. In Makhan Singh v. State of Punjab, : 1952CriLJ321 it was held that fixing of the period of detention in the initial order itself was contrary to the scheme of the detention law and was not justified. Similarly in Dattatraya Moreshwar v. The State of Bombay, : 1952CriLJ955 it was held (at page 960; of Cri LJ) :
'The question now is whether the omission to state the period of further detention while confirming the detention order under S. 11(1) of the Preventive Detention Act makes the detention illegal The point is not free from doubt, but having regard to the fact that the new Preventive Detention Act is a temporary statute which was to be in force only up to the 1st of April, 1952 and has only been recently extended to a further period of six months, and no detention under the Act can continue after the date of expiry of the Act, I am inclined to hold that non-specification of the further period in an order under S. 11(1) of the Act, does not make the order of detention a nullity. If no period is mentioned, the order might be taken to imply expiration of the Act itself when all detentions made under it would automatically come to an end. Of course, the appropriate Government is always at liberty to terminate the order of detention earlier, if it considers proper in exercise of its general powers under S. 13 of the Act.
I am not much impressed by the argument that the non-mentioning of the period in the order of confirmation is likely to cause serious prejudice to the interests of the detenu. It may be that if a period is mentioned, the attention of the Government is likely to be drawn to the case near about the time when the period is due to expire and the facts of the case may be reviewed by the appropriate authority at that time before it decides to extend the detention any further; but it seems to me to be clear from the provisions of S. 13 that the Act contemplates review of individual cases by the appropriate Government from time to time irrespective of any period being mentioned in the order of detention. It can legitimately be expected that the detaining authority would discharge the duties which are imposed upon it, but even if it does not, there is nothing in the law which prevents it from fixing the period of detention up to the date of expiry of the Act itself, which is by no means a long one, and in that case the Court would obviously be powerless to give any relief to the detenu.
It is perfectly true that an order for detention for an indefinite period is repugnant to all notions of democracy and individual liberty, but the indefiniteness in the case of an order made under S. 11(1)(f) the Preventive Detention Act is in a way cured by the fact that there is a limit set to the duration of the Act itself, which automatically prescribes a limit of time beyond which the order cannot operate. In my opinion, S. 11(1) of the Preventive Detention Act does contemplate that a period should be mentioned during which the further detention of the detenu is to continue and the Government should see that no omission occurs in this respect, but I am unable to hold that this omission alone would make the order a nullity which will justify us in releasing the detenu'.
28. It has further been contended on behalf of the petitioners that as the grounds of detention served upon them are almost identical, the same showed mechanical process of directing detention without application of mind. This argument is also without substance in as much as all the grounds served upon the detenues are based upon their identical allegedly voluntary statements recorded under S. 67 of the N.D.P.S. Act. Wherever necessary, the detaining authority has referred to specific grounds pertaining to each detenu. The identity of the grounds of detention therefore, cannot be made a basis to conclude that the detention orders are mechanically passed without the application of mind or the subjective satisfaction of the detaining authority.
29. No other point was argued in the cases.
30. There is no merit in these petitions which are accordingly dismissed. Rules issued are discharged. No costs.
31. Petitions dismissed.