R.S. Sodhi, J.
1. By this Criminal Writ Petition No. 933 of 2002 under Article 226 of the Constitution of India, the petitioner seeks to challenge the detention order bearing No. F. No. 801/29/200-PITNDPS dated 2.3.2002 passed by Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi, under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short the 'PITNDPS' Act), served on the petitioner on 2.4.2002 together with relevant material.
2. The facts of the case are that the petitioner, Paramjit Singh and co-accused, Tahel Singh, were arrested pursuant to a recovery of 9.66 kg. brown powder from Maruti Zen Car No. HR-01-F-8143 on 5.10.2001. On 11.3.2002 the petitioner moved an application for bail before the learned Special Judge PITNDPS Act, New Delhi who vide order dated 27.3.2002 admitted the petitioner and co-accused to bail. On 2.4.2002 a complaint under Sections 21 and 29 PITNDPS Act was filed before the Court of Special Judge, NDPS Act, New Delhi and cognizance taken thereon. On the same day, an order under Section 3(1) of the PITNDPS Act was passed and served on the petitioner while he was yet confined in jail. It is alleged that on 3.5.2002, the petitioner made a representation to the Joint Secretary, Government of India and on 10.5.2002 made a representation to the Advisory Board. On 11.6.2002, the detaining authority rejected the representation dated 10.5.2002 made to the Advisory Board. On 14.6.2002 the Central Government rejected the representation dated 10.5.2002. On 20.6.2002, the detention for a period of one year was confirmed.
3. The petitioner having failed in his endeavor to secure liberty has moved this court, as stated above, on various grounds. The only grounds argued before us were - (i) that his representation dated 3.5.2002 was not considered by the detaining authority; (ii) that the order granting bail which, according to the detenu, was relevant document, was not supplied pari pose the grounds of detention nor considered by the detaining authority; (iii) that the order granting bail mentions the quantity of heroin recovered from the detenu and his co-accused as 51 grams and not 9 kgs; (iv) non-placing of the order granting bail before the detaining authority and non-consideration of this relevant material has adversely affected the subjective satisfaction of the detaining authority resulting in vitiating the detention order.
4 As regards the first challenge, learned counsel for the petitioner submitted that the representation dated 3.5.2002 made to the detaining authority, Annexure P-2 to the writ petition, has not been considered by the detaining authority which vitiates the detention order.
5. To appreciate the submissions of learned counsel, relevant portion of Annexure-P2 is reproduced :-
'...... my client Shri Tehal Singh, son of late Shri Anoop Singh, r/o Village and Post Shaheed, P.S. Patti, District Amritsar, Punjab, presently confined in Central Jail, Tihar, New Delhi, detained u/s Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, hereinafter referred to as PIT NDPS Act, I have to made this representation on his behalf for revocation of the detention order dtd. 2.4.2002, as the detention is illegal, contrary to law and is liable to be set aside............................................................................
That my client and two others were ordered to be released on bail on 27.3.2002. The order of detention was passed on 2.4.2002 and thereforee, this order has to be placed before the detaining authority which having not been done makes the detention illegal........
I, thereforee, on behalf of my client submit that the detention of my client is vocative of Art. 14, 19, 21 and 22 of the Constitution of India.
I submit that the said order is liable to be set aside and your Honour may thereforee revoke the order of detention. I further submit that the documents above mentioned which are very relevant and material may kindly be placed before the Hon'ble Advisory Board so that my client may be able to get justice.'
6. In the counter-affidavit of Mr. D.R. Sharma, Under Secretary to the Government of India, Ministry of Finance and Company Affairs, Department of Revenue, it is stated :-
'...... that the averments made by the petitioner is wrong, baseless and is denied. It is respectfully submitted that the representation dated 03.05.2002 written under instruction from Shri Tehla Singh and not Gurdev Singh was a letter addressed to the Joint Secretary by Shri Harjinder Singh, Advocate stated to be received on 09.05.2002. The representation dated 10.05.2002 was handed over by the Advocate during the hearing by the Advisory Board on 10.05.2002 which covered all the points raised in the letter dated 03.05.2002. The representation dated 10.05.2002 was considered by both the Detaining Authority and the Central Government.
On receipt of representation dated 10.05.2002 during the hearing by the Advisory Board, order were sought from the detaining authority for seeking paradise comments. On receipt of order of the detaining authority, comments were called for from the sponsoring authority on 16.05.2002 followed by reminded dated 04.06.2002. Comments were received on 05.06.2002. The representation along with comments thereon was processed and submitted to the Detaining Authority and the Secretary (Revenue) separately on 06.06.2002. The Detaining Authority considered the representation and rejected it on 10.06.2002. The detenu was informed accordingly on 11.06.2002.
Similarly the said representation was considered by the Secretary (Revenue) also on behalf of the Central Government who rejected it on 13.06.2002 and petitioner was informed accordingly on 14.06.2002. Thus there was no unreasonable and long delay in consideration of the representation as alleged by the petitioner.'
From a bare reading of the so-called representation it is clear that the same is not on behalf of Gurnam Singh but on behalf of Tahel Singh. It cannot be treated as a representation on behalf of Gurnam Singh.
7. In view of the nature of representation made, the Explanationn of the respondents deserves to be accepted. We find no force in the contention of learned counsel for the petitioner that the representation dated 3.5.2002 was on behalf of the detenu which has not been considered.
8. The second and third grounds can be taken together. It is contended that the order dated 27.3.2002 admitting the detenu to bail was relevant material which, if placed before the detaining authority, may have resulted in non-passing of the detention order. The court found that 51 grams of heroin was recovered and not 9.00 kgs., as has been depicted in the material placed before the detaining authority. The quantum of recovery may have influenced the subjective satisfaction of the detaining authority. In the alternative, it is submitted that mention of the bail order by the detaining authority shows he has considered the same while passing the detention order. This being so, the same being a relevant document has not been supplied pari pose the grounds of detention. Reply of the State in the counter-affidavit is that :
'VII. Order of bail of petitioner not been supplied to the petitioner and that the bail order was not considered by the detaining Authority.
The averments made in the para under reply is wrong, baseless and is denied. It is respectfully submitted that copy of bail application was supplied to the petitioner at S. No. 68 (page 187-188) of relied upon documents along with order and ground of detention. All the material on record, including intimation of grant of bail to the petitioner, was placed before the detaining authority for consideration. However, the copy of bail order could not be placed before the detaining authority as the certified copy of the same was not available till 2.4.02, i.e. the date of passing of detention order. The detaining authority duly considered the fact of grant of bail to the petitioner and this fact of grant of bail has duly been mentioned in the grounds of detention.'
9. The argument of the learned counsel, in the first instance, that the order admitting the petitioner to bail was not placed before the detaining authority and if the same had been placed before the detaining authority, subjective satisfaction may have been influenced and the detention order not passed, cannot be accepted. 'Grounds' mean all facts and materials which have been taken into account by the detaining authority in making the order of detention and on which, thereforee, the order of detention is based, they would include any information or material on which an order was based. It is, thereforee, clear that anything less than all basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu. This is the first safeguard in Article 22(5) of the Constitution.
10. From the grounds of detention it is apparent that the detaining authority was aware of the fact that the detenu had been admitted to bail. The contents or reasoning in the order of bail is not material upon which the detaining authority has based its subjective satisfaction.
11. The submission that the observation in the order of bail to the effect that 51 grams of heroin was only recovered is of no consequence for it is not a finding of fact. In the present case, from the report of the CFSL, the calculation is based on the quantum of sample sent for examination, not the entire quantity recovered. The report of the CFSL has been taken into consideration and supplied to the detenu.
12. The law on the subject is that relevant material which has been taken into consideration and subjective satisfaction based on it must be supplied to the detenu. Further, if there is material which is relevant for the purposes of arriving at subjective satisfaction has not been placed before the detaining authority, then the order of detention would suffer on account of withholding of such material. However, the case in hand, from the detention order, reads as under:
''F. No. 801/29/2002-PITNDPS
Government of India
Ministry of Finance
Department of Revenue
West Block No. 1, Wing NO. 5,
II Floor, R.K. Puram,
New Delhi-110 066
Dated the 2nd April,2002.
Subject: Communication of grounds of detention on which detention Order F. No. 801/29/2002-PITNDPS dated 2.04.2002 has been made against Shri Gurnam Singh @ Harjit @ Babbu S/o Late Shri Jagtar Singh R/o Village Kakka Kandyala, Post Kadd Gill, P.S. City Tarantaran, District Amritsar, Punjab under section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.
The officers of Directorate of Revenue Intelligence (DRI) Delhi Zonal Unit, New Delhi received a specific intelligence indicating that a Maruti Zen Car bearing registration No. HR-01 F-8143 with narcotic drugs in it would be brought by its occupants to IBP petrol pumps of Bhajanpuraa, Delhi at about 0030 hrs on 5.10.2001. The DRI officers intercepted the said car, in the presence of two independent witnesses at the said petrol pump along with its three occupants on 5.10.2001 at about 0030 hrs. On enquiry by the Officers, the said occupants disclosed their names as Tehal Singh, Paramjit Singh and Gurnam Singh and admitted that 9 packets, containing about 9 kgs. Of brown color heroin, were concealed in the panel of left side front door of the said Maruti Zen car. As it was already late night and the place was not safe and secure to carry out searches and other proceedings, the officers accompanied by witnesses brought the said occupants and the said Maruti Zen Car HR-01 F-8143 to their office at CGO Complex, Lodhi Road, New Delhi for search and examination. After reaching their office, the officers before conducting searches in the presence of witnesses gave an option under Section 50 of NDPS Act, 1985 for the search of their person and the said car to Tehal Singh, Paramjit Singh and Gurnam Singh, informing them that the searches could be conducted in the presence of a Gazetted Officer or a Magistrate. All three of them declined the offer and stated in writing that they did not require the presence of any Gazetted Officer or a Magistrate at the time of the said searches and that any officer of DRI could conduct the said searches. Thereafter, the officers carried out the searches of Tehal Singh, Paramjit Singh and Gurnam Singh and the said car in the presence of independent witnesses.
2. From the search of the said 3 persons, documents and one mobile phone as detained in the panchnama dated 04/05.10.2001 were recovered. As a result of search and rummaging of the said Maruti Zen Car HR-01 F-8143,9 packet in white cloth concealed in the panels of its front left door were recovered. The said 9 packet were further examined by cutting open their cloth packing and polyphone packing inside the cloth packing. The said 9 packets were found to contain brown color powder, which was giving a pungent smell. A pinch of the brown powder was taken from each of the said 9 packets and tested on United Nations Field Drug Testing Kit, which gave positive indication for the presence of heroin in all the said 9 packets. On weighments, the net weight of the heroin recovered from the said 9 packets was ascertained to be 9.066 kgs and the same was seized under Section 42 of the NDPS Act,1985 under a panchnama dated 4/5.10.2001. Maruti Zen Car No. HR-01 F-8143 used for concealment and transportation of the seized 9.066 kgs heroin, a mobile phone recovered from the possession of Gurnam Singh and the documents recovered from the possession of all the three of them were also seized under the Act ibid. Two representative samples each weighing 5 gms. were drawn out of each of the said 9 packets. The panchnama and its site map were drawn on the spot. The panchnama was read over and explained to Tehal Singh, Paramjit Singh, Gurnam Singh and witnesses in the language known to them (i.e. Punjabi) which was accepted as true and correct. 'One set of samples marked A-1 to I-1 was sent to CRCL for Chemical test and analysis on 8.10.2001.
3. Statement of Tehal Singh, was recorded under Section 67 of the NDPS Act, 1985 on 5.10.2001. He admitted the manner of recovery and seizure described in the panchnama and, interalia, stated that the seized Maruti Zen Car belonged to Sukhdev Singh @ Kala, S/o Madan Mohan Singh, R/o Village Jathol, District Amritsar; that the plate of the number HR 01 F 8143 on the said car was of car belonging to Gurnam (arrested with Tehal Singh); that the real number of the said seized car was HR 51 C 0918 which belonged to Sukhdev Singh; that the heroin in 9 packets recovered from the said car also belonged to Sukhdev Singh @ Kala; that the said heroin was to be delivered to one Vishal in Delhi having mobile No. 9811007285; that one Asgar of Pakistan had sent the 9 packets of heroin from Pakistan to India through smuggling on the directions of Sukhdev Singh @ Kala; that the said 9 packets were delivered by Paramjit Singh (also arrested with Tehal Singh), whom he knew since the time of his meeting with him in Patiala Jail; that he knew Gurnam Singh since the time of his meeting with him in Amritsar Jail; that he (Tehal Singh) had done all the negotiations about the receipt and delivery of 9 packets of heroin from Paramjit Singh; that Gurnam Singh and Paramjit Singh had come to Delhi along with him on 4.10.2001 for delivering the said 9 packet of heroin to Vishal on his instruction; that after reaching the Delhi border he gave a telephone call to Vishal; that Vishal had fixed the place for delivery of the said packets of heroin at Petrol pump at Bhajanpura; that only Sukhdev Singh knew Vishal; that Sukhdev Singh given Vishal's mobile phone No. 9811007285 to him, that it was Sukhdev Singh who told him at Jalandhar on 4.10.2001 that he should deliver the 9 packets of heroin, which Paramjit Singh had brought and delivered to Gurnam Singh at Tarantaran, to Vishal and bring back Rs.3,00,000/- from Vishal; that Sukhdev was to give Rs.10,000/- each to three of them for this work out of the said money; that out of this money, Paramjit Singh was to be given additional money, that Sukhdev Singh had given the car bearing NO. HR 01 F 8143 with 9 packets of heroin concealed in left side front door at Jalandhar; that at the time the said number plate was on the said car; that he then called Paramjit Singh at 5.30 PM at Jalandhar Bus Stand and they left for Delhi in the evening on 4.10.2001; that they picket up Gurnam Singh on the way from Phagwara; that he did this work so that after making money he could file an appeal in the Supreme Court; that his wife Kulwinder Kaur lived in the village with his two children; that he had been staying for some time with Sukhdev Singh @ Kala at his Kothi No. 1047, Sector 11, Panchkula, Chandigarh and that it was Sukhdev Singh who used to talk to the operators in Pakistan, who are indulged in the heroin business.
4. Statement of Paramjit Singh @ Pamma was also recorded on 5.10.2001 under Section 67 of NDPS Act, 1985 wherein he, intralia, stated that he was resident of Village Havelian, P.S. Sarai Amanat Khan, District Amritsar, Punjab; that he was truck driver of his uncle's son Jarnail Singh from 1990 to 1992; that after 1992 he and Jarnail Singh started smuggling gold; that in 1993, he was caught by the Amritsar Customs with 200 gold biscuits; that he and Balwinder Singh were detained under COFEPOSA in Patiala jail; that in 1996, he again started smuggling of gold biscuits; that he was caught by the Punjab Police with Foreign currency worth Rs.15/16 lakhs which was given to him by Gurcharan Singh in exchange of 28 gold biscuits; that he along with 6 other members of his family were caught by the Punjab Police for keeping 12 bore pistol during March, 1998; that in the 1999 and, he was again caught by police in two cases, for keeping 6 kgs. RDX and fake notes of Rupees one thousand; that in April, 2000 he was again detained under COFEPOSA in Patiala jail; that during this period of detention under COFEPOSA at Patiala jail he met Tehal Singh @ Tehla @ Pahalwan, who was imprisoned for smuggling of heroin; that Tehal Singh told him that he was about to get parole and after getting out of the jail, he (Paramjit Singh) could start smuggling of heroin with him (Tehal Singh); that he (Paramjit Singh) agreed to it as he was not having money; that about 15-16 days back, Tehal Singh gave him a telephone No. 6663520 of Lahore, Pakistan and told him to contact Asgar and Javed to fix the place on boarder for smuggling of heroin; that he contacted Asgar and Javed on two-three occasions at the said number and fixed a place; that Asgar and Javed threw 9 packets from across the border at the fixed place; that he collected the said nine packets and informed Tehal Singh on his mobile No. 9814231467; that Tehal Singh told him to hand over the heroin packets at a pre-fixed place in Taran Taran to Gurnam Singh; that he knew that carrying heroin was illegal, but for the greed for money, he agreed for the illegal work of trafficking in heroin; that the next day (he did not remember the exact date) in the noon, he carried the said 9 packets of heroin on bicycle to Taran Taran and handed over the said 9 packets of heroin to Gurnam Singh at a pre fixed place of link road in the evening; that when he contacted Tehal Singh on phone, Tehal Singh told him that he had to go to Delhi to collect the payment for the heroin; that he (Paramjit Singh) should accompany him (Tehal Singh) so that he could give his payment for smuggling heroin; that on 4.10.2001 at around 5 O'clock, he reached Jalandhar Bus Stand as per Tehal Singh's direction, where Tehal Singh was already present with Maruti Zen Car HR 01 F 8143; that he along with Tehal Singh left for Delhi; that on the way, Gurnam Singh also accompanied them from Phagwara in Car No. HR 01 F 8143, that on the way to Delhi, he came to know that heroin (which he had brought from Pakistan border about 10-15 days back) was concealed in the car.
5. Statement of Gurnam Singh @ Harjit @ Babbu was recorded on 5.10.2001 under section 67 of NDPS Act, 1985 wherein, he interalia, stated that he was a resident of Village Kakka Kandyala, Post Kadd Gill, P.S. City Taran Taran, District Amritsar, Punjab; that after giving up the studies, he started his farming; that in 1991 he became a driver; that because of terrorism in Punjab, he went to Bombay as driver; that after returning to Punjab in 1993, he married Smt. Rajvinder Kaur; that in 1998, his wife had tragic death, because of which his family situation worsened; that in the mean time he also sold his flour mill; that due to all this, he had developed mental tension and started consuming narcotic drugs; that because his financial position had worsened, he started selling narcotics in small packets ('Pudiyas') himself so that he could manage his expenses; that on 25.7.1999, Taran Taran Police had seized 3-1/2 gms smack from him and he was sent to jail; that while he was in jail, he met Tehal Singh, who was under going imprisonment under NDPS Act, 1985; that during the imprisonment, he became friendly with Tehal Singh in jail; that after getting the bail, he started visiting Tehal Singh's house; that he had second marriage with Smt. Rekha Sharma; that in May, 2001, Tehal Singh got parole for 42 days; that he went to Tehal Singh's house in Pratap Nagar, Amritsar to meet him; that they discussed about the supply of drugs; that Tehal Singh told him to meet Paramjit Singh; that he went to Paramjit Singh and told him (Paramjit Singh) to meet Tehal Singh; that Tehal Singh and Paramjit Singh had a meeting and fixed further meeting; that he and Tehal Singh met Sukhdev Singh on 19th or 20th September, 2001 and Sukhdev Singh sent them to Paramjit Singh; that Paramjit Singh came to Taran Taran on bicycle and handed over 9 (nine) packets of heroin to him; that he handed over the said packets to Tehal Singh near his village Kakka Kandyala; that Tehal Singh told him that since the goods belonged to Sukhdev Singh, he would pay Rs.10,000/- to him (Gurnam Singh) for this work after collecting the same from Sukhdev Singh, S/o Madan Mohan Singh, Village Jathol; that he called Tehal Singh on phone on 3.10.2001 and Tehal Singh told him that he had to go to Delhi in Maruti Car No. HR 01 F 8143 from Phagwara; that Tehal Singh also told him that on reaching Delhi, he (Gurnam Singh) would get his payment of Rs.10,000/- for this work; that as per the directions of Tehal Singh, he came to Phagwara Chowk; at 5.30 PM on 4.10.2001 and waited form him; then after some time, Tehal Singh with Paramjit Singh arrived in Maruti Zen Car No. HR 01 F 8143; that at about 11 PM around 40 KM before reaching Delhi, Tehal Singh called up some unknown person from STD booth and again started for Delhi; that at around 0030 hrs in the night when their car reached IBP petrol pump, DRI officers intercepted it; that Maruti Zen Car No. HR 01 F 8143 was in the name of his wife Smt. Rekha Dhillon; that the actual registration No. of the vehicle from which heroin was seized was HR 51 C 0918; that to mislead, Sukhdev Singh had changed his car No. HR 51C 0918 to HR 01 F 8143; that the documents of his car No. HR 01 F 8143 were available at his house; that when he asked Tehal Singh why he had put number plate of his (Gurnam's) car on Sukhdev Singh's car, Tehal Singh informed that Sukhdev Singh had told that his (Sukhdev's) car had already become notorious in this trade and because (Gurnam's) car was also being used as taxi, nobody would have suspicions and also that since both the cars were similar, there would be difficulty in identification; that Sukhdev Singh was the mastermind of this conspiracy.
6. Consequent upon the recovery and seizure of 9.066 kgs heroin and their voluntary admission about their concern and connection with the seized heroin, Tehal Singh, Paramjit Singh and Gurnam Singh were arrested on 5.10.2001 under Section 42 of the NDPS Act, 1985 got medically examined at RML Hospital and were produced before the Ld. ACMM, Patiala House on 6.10.2001 who remanded them to judicial custody which was extended from time to time.
7. Intimation regarding arrest of Tehal Singh, Paramjit Singh and Gurnam Singh were sent by Speed Post to their relatives on 6.10.2001. In the intimation regarding Gurnam Singh, the date of his arrest was mentioned as 7.9.2001 inadvertently. Another intimation giving the correct date was sent on 8.10.2001 to his wife. The letter of intimation of the arrest of Tehal Singh sent to his wife Smt. Kulvinder Kaur sent at his village address was received back from postal authorities undelivered with the remarks 'No such person, returned.'
8. Follow up actions were taken at the residences at the native places of Tehal Singh, Paramjit Singh and Gurnam Singh. The Sarpanch of village Shaheed of Tehal Singh revealed that Tehal Singh @ Tehla, S/o Anoop Singh was not available in the said village. The sarpanch also revealed that Tehal Singh @ Tehla Pehalwan, S/o Shri Anoop Singh was not available in the said village. The sarpanch also revealed that Tehal Singh @ Tehla Pehalwan, S/o Shri Anoop Singh @ Bagga Singh used to reside in the village about 10 years ago but he had shifted to Pratap Nagar locality in Amritsar. Search at residential premises of Gurnam Singh @ Harjeet @ Babbu, S/o late Shri Jagtar Singh at village Kakka Kandyala, District Amritsar was conducted on 9.10.2001. As a result, some documents and photograph were recovered and seized under NDPS Act, 1985 as per details given in annexure to panchnama dated 9.10.2001. Search of residential premises of Paramjit Singh S/o late Shri Trilok Singh at Village Havelian, District Amritsar was conducted on 8.10.2001 resulting in the recovery and seizure of one pass book of A/c No. 6247.
9. The seized heroin was deposited in Customs Valuable Godown for safe custody on 8.10.2001 vide entry No. 13/2001-2002 dated 8.10.2001.
10. In response to enquiry about Tehal Singh's past cases, Deputy Director, Amritsar vide letter dated 10.10.2001 intimated that Tehal Singh S/o Bagga Singh was an accused in the seizure case of 13.4 kgs heroin effected by DRI (RU), Amritsar on 29.2.1996, that he was sentenced to 20 years R.I. by Special Court, Amritsar on 19.04.2000 in that case and that he was reportedly out of jail now-a-days. The Deputy Director, DRI(RU), Amritsar also informed that the residences of Gurnam Singh at Village Kakka Kandyala and that of Paramjit Singh at Village Havelian both in District Amritsar was conducted and documents so recovered are details in the Annexure to the panchnama dated 9.10.2001 and 8.10.2001 respectively. Deputy Director, Amritsar was asked on 17.10.2001, 01.10.2001 and 20.12.2001 to furnish details/facts of date of parole of Tehal Singh, date of expiry of his parole and certified copy of the order dated 19.4.2000 convicting Tehal and imposing sentence of 20 years R.I. on him. M/s Bharati Cellular Ltd., was asked vide letter dated 17.10.2001 to furnish the details of the subscriber and printouts of calls made to/from mobile phone 9811007285, reportedly used by Vishal. Managing Director, SPICE Telecom, Punjab was asked on 17.10.2001 and 5.11.2001 to furnish the details of the subscriber and printouts of calls made to/from mobile phone No. 9811007285, reportedly used by Vishal. Managing Director, SPICE Telecom, Punjab was asked on 17.10.2001 and 5.11.2001 to furnish the details of the subscriber and printouts of calls made to/from mobile phone NO. 9814231467 reportedly used by Tehal Singh and mobile phone No. 9814198035, 9814198027 and 9814074147, reportedly used by Sukhdev Singh and mobile phone No. 9814286773 reportedly used by Gurnam Singh.
11. State Transport Authority, Chandigarh was requested to intimate the chasis No. and engine No. of Maruti Zen Car No. HR 01 F 8143 and supply copy of its registration certificate. STA, Chandigarh vide its letter dated 29.10.2001 intimated that request of this Unit was sent to STA (Haryana), Chandigarh. STA (Haryana), Chandigarh was also asked on 7.11.2001, 26.11.2001 and 20.12.2001 to furnish the above information.
12. Deputy Director, Amritsar was asked on 1.11.2001 and 20.11.2001 to verify the address of New Pratap Nagar, Amritsar stated to be belonging to Tehal Singh and certain offences/facts regarding Paramjit Singh @ Pamma.
13. Central Revenue Control Laboratory, New Delhi vide its letter File No. 1/ND/R/2001, CLD 358(N) to 366(N) dated 26.11.2001 confirmed the presence of diacetyl morphine (heroin) in the samples sent to CRCL, New Delhi on 8.10.2001.
14. Enquiries about mobile phone No. 9811007285 revealed that it was reportedly used by Vishal and was subscribed from M/s Sterling Cellular Limited, New Delhi, and not from M/s Bharati Cellular Limited, New Delhi. Accordingly, General Manager, Sterling Cellular Limited, C-48, Okhla Industrial Area, New Delhi, vide letter dated 5.11.2001 and 26.11.2001 was asked to furnish the details of the subscriber and printouts of calls made to/from the said mobile phone, reportedly used by Vishal. In response, M/s Sterling Cellular Limited, New Delhi furnished the details about the subscriber which revealed that the said mobile phone was operating from a cash card. Further, enquiries about the calls in the printouts are in progress.
15. In response to DRI's letter dated 17.10.2001 and 1.11.2001, Deputy Director, Regional Unit, Amritsar vide his letter dated 24.12.2001 intimated that the enquiries were conducted from the Superintendent, Central Jail, Patiala, who vide his letter dated 15.11.2001 has intimated that Tehal Singh, a 20 years convict, was admitted in Central Jail, Patiala on 22.6.2000 after his transfer from Central Jail, Amritsar on administrative grounds. He was released on 8.5.2001 for two week on emergency parole and was to surrender on 23.5.2001 but till he was apprehended in the present case, he has not surrendered. Tehal Singh was convicted to 20 years rigorous imprisonment by Special Court, Amritsar on 19.4.2001 in a seizure case of 13.4 kgs. of heroin effected by DRI (RU), Amritsar on 29.2.1996. The enquiries were also conducted at Panchkula and it was found that Kothi No. 1047, Sector 11, Panchkula was in existence and belonged to Sukhdev Singh. The enquiry about the House NO. 31(6C), New Pratap Nagar, Amritsar were also conducted and was found to belong to Shri Mehal Singh brother of accused Tehal Singh. His brother Shri Lakhbir Singh and his mother Smt. Kartar Kaur also reside there.
16. Deputy Director, DRI(RU), Amritsar vide DRI letter dated 3.1.2002 was asked to cause necessary enquiries regarding the telephonic numbers of Jallandhar featured in the printouts of the mobile number 9811007285 reportedly used by Vishal.
17. A combined bail application was filed on 11.3.2002 by Tehal Singh, Gurnam Singh and Paramjit Singh and on 28.3.2002, all three have been granted bail. Two petition against the orders of the Ld. Special Court declining request to get the duplicate set of samples tested and the bail granted by the Ld. Spl. Court have been filed in the High Court of Delhi on 30.3.2002.
18. Retraction applications undated (with Court's remark dated 29.10.01 on it) and dated 20.10.2001 of Paramjit Singh have been filed. I have considered the retractions and on the basis of material on record I am hereby rejecting the said retractions.
19. From the facts mentioned herein above and the material placed before me, I have no hesitation in holding that Shri Gurnam Singh @ Harjit @ Babbu has knowingly engaged himself in the illicit traffic in narcotic drugs as is evident from the statements and material on record, and if not prevented, he is likely to continue indulging in illicit traffic in narcotic drugs, on his release on bail.
20. Even though prosecution proceedings under Narcotic Drugs and Psychotropic Substances Act, 1985 have been initiated against Shri Gurnam Singh @ Harjit @ Babbu and on his release on bail, he is likely to engage himself in illicit traffic in narcotic drugs as is evident from material on record. I am, thereforee, satisfied that there is compelling necessity to detain him under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing him from engaging in such activities.
21. I have carefully gone through all the documents referred to hereinabove. On the basis of the statements and documents mentioned hereinabove, I have no hesitation in arriving at the conclusion that he has engaged in the possession and transportation of narcotic drugs.
22. In view of the facts stated above, I am satisfied that it is necessary to detain Shri Gurnam Singh @ Harjit @ Babbu under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 with a view to preventing him from engaging in the possession and transportation of narcotic drugs, in future.
23. While passing the detention order under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, I have relied upon the documents mentioned in the enclosed list.
24. Shri Gurnam Singh @ Harjit @ Babbu has a right to make a representation against his detention to the Detaining Authority, Central Government and the Central Advisory Board (Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988).
25. If Shri Gurnam Singh @ Harjit @ Babbu wishes to make a representation to the Detaining Authority and/or the Central Government, he may do so and address it to the undersigned or to the Secretary to the Government of India, Ministry of Finance, Department of Revenue, PITNDPS Cell, West Block No. 1, Wing No. 5, II Floor, R.K. Puram, New Delhi-110066, as the case may be, and forward the same through the Superintendent of the Prison where he is to be detained. If he desires to make any representation to the Advisory Board, he may address it to the Chairman, Advisory Board (Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988), Delhi High Court, Sher Shah Road, New Delhi and forward the same through the Superintendent of the Prison where he is to be detained.
26. Shri Gurnam Singh @ Harjit @ Babbu is further informed that he shall be heard by the Advisory Board in due course if the Board consider it essential to do so, or if he so desires.
27. The above grounds are communicated to Shri Gurnam Singh @ Harjit @ Babbu in pursuance of Clause (5) of the Article 22 of the Constitution of India.
28. I consider it to be essentially against the public interest to disclose the source of information referred to in para 1 above.
Sd/-
(Prashant Mehta)
Joint Secretary to the Government of India'
13. It appears that the detaining authority has not based its satisfaction on the order of bail but has referred to the fact that the detenu when admitted to bail is likely to engage himself in illicit traffic in narcotic drugs and psychotropic substances. The detaining authority has taken into consideration the past conduct of the accused detained pursuant to the recovery and the propensity to indulge in such activities in future. We feel that non-placing of the order of bail before the detaining authority has, in any manner, affected the subjective satisfaction of the detaining authority and/or its non-supply to the detenu prejudiced the petitioner in making an effective representation against his detention. The challenge to the detention order on the ground mentioned above must fail. No other ground was urged before us. We, accordingly, dismiss the writ petition.